IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 WP(C).No. 13838 of 2011(D) -------------------------- PETITIONER(S): --------------- MOIDU @ KUNHAN, AGED 70 YEARS, S/O.MOIDEENKUTTY HAJI, KODANATT KANICHIRACKAL, CHOORKKOD, VALLAPPUZHA POST, OTTAPALAM TALUK. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT(S): --------------- 1. THE VALLAPUZHA SERVICE CO-OP.BANK LTD., NO.F.1207, POST VALLAPUZHA-679 336, REPRESENTED BY ITS SECRETARY. 2. THE SPECIAL SALE OFFICER FOR VALLPUZHA SERVICE CO-OP. BANK LTD.NO.F.1207 OFFICE OF THE ASST.REGISTRAR OF CO-OP. SOCIETIES (G), OTTAPALAM-679 101. BY GOVT. PLEADER SRI.G.GOPAKUMAR ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R1 SRI.SAJU.S.A FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 13838/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE NOTICE ISSUED UNDER RULE 76(3) OF THE CO-OP. SOCIETIES RULES DT. 28.4.2011 OF THE 2ND RESPONDENT WITH SCHEDULE EXT.P2 : COPY OF THE REPRESENTATION DATED 5.5.2011 FILED BEFORE THE RESPONDENTS RESPONDENT'S EXHIBITS: EXT.R1(a) : COPY OF THE LEDGER SHEET IN CONNECTION WITH THE LOAN AVAILED BY THE PETITIONER (LOAN NO.219) EXT.R1(b) : COPY OF THE ORDER OF THE ADALATH DATED 16.2.2008 //TRUE COPY// P.A. TO JUDGE vps P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 13838 OF 2011 -------------------------- Dated this the 24th day of October, 2011 J U D G M E N T The petitioner availed a loan of Rs.2,00,000/- from the first respondent co-operative society. When the loan was not repaid, the first respondent instituted an arbitration case wherein an award was passed on 27.10.2007. Even thereafter, the petitioner did not repay the loan. The first respondent society thereupon took steps to have the award executed and Ext.P1 demand notice dated 28.4.2011 was issued demanding repayment of the sum of Rs.4,37,906/- stated to be the amount due as on 22.2.2011 together with future interest. The instant writ petition was thereupon filed challenging Ext.P1 notice. 2. It is stated that though the petitioner had earlier moved the first respondent society by submitting Ext.P2 representation dated 5.5.2011 for an opportunity to pay the sum of Rs.2,00,000/- together with simple interest at 12% per annum within one year and to close the loan account upon such payment, the matter was referred to the Adalath. In this writ petition, the petitioner seeks an order restraining the WPC No.13838/2011 2 respondents from proceeding further with Ext.P1 notice. The petitioner also seeks a direction to the respondents to consider Ext.P2 representation and to permit him to pay the amount due in 12 equal monthly instalments. 3. The first respondent has filed a counter affidavit. In paragraph 1 it is stated that though the petitioner had earlier approached the bank claiming the benefit of a One Time Settlement Scheme and the matter was referred to the Adalath and in the Adalath held on 16.2.2008 a decision was taken to extent certain concessions to the petitioner if he repays the entire loan in lump before 28.2.2008, the petitioner did not pay any amount notwithstanding the decision taken in the Adalath and therefore he is not entitled to any relief. 4. I heard Sri.R.Sreehari, learned counsel appearing for the petitioner and Sri.S.A.Saju, learned counsel appearing for the first respondent. I have also gone through the pleadings and the materials on record. The petitioner does not dispute the fact that the award passed on 27.10.2007 has attained finality. The petitioner has not produced any material to show that the WPC No.13838/2011 3 demand made by the sale officer in Ext.P1 demand notice is in any way erroneous. Ext.R1(b) decision taken in the Adalath held on 16.2.2008 indicates that the petitioner was given an opportunity to pay a reduced amount in discharge of the loan. The petitioner did not however discharge the loan on or before 28.2.2008. Therefore, at this distance of time, the petitioner cannot be heard to contend that he should be given the benefit of Ext.R1(b) circular. That apart, thereafter also the Registrar of Co-operative Societies has issued circulars, one of which is Circular No.41 of 2011 dated 23.6.2011 which was in force till 15.9.2011. The petitioner has not admittedly claimed any benefit thereunder. In such circumstances, I am of the opinion that no relief can be granted to the petitioner by way of debt relief. However having regard to the fact that pursuant to the interim order passed by this Court on 24.5.2011 he has deposited the sum of Rs.50,000/- and the admitted fact that even without an order of this Court the petitioner had deposited another sum of Rs.50,000/-, I am inclined to grant him an opportunity to pay the amount due in instalments. I accordingly dispose of the writ WPC No.13838/2011 4 petition with the following directions:- (i) The first respondent bank shall within two weeks from today inform the petitioner in writing of the balance amount payable by him as on 31.10.2011 in terms of the award passed by the Arbitrator after giving credit to the payments made by him till date. (ii) While computing the amount payable by the petitioner, the bank shall have due regard to the circulars if any issued by the Registrar of Co-operative Societies presently in force giving concessions to persons who have availed loans from co-operative institutions. (iii) The petitioner shall upon receipt of the said letter, pay the amount demanded therein in eight equal monthly instalments. The first of such instalments shall be remitted on or before 15.11.2011 and the remaining instalments on the 15th of every succeeding English calendar month. If the 15th of any month happens to be a holiday, payment shall be made on the next working day. (iv) Upon the petitioner paying the amount demanded in WPC No.13838/2011 5 instalments, the bank shall inform him in writing of the balance amount, if any, payable by him by way of interest for the period from 1.11.2011 till the date of payment of the last instalment. The petitioner shall within two weeks from the date of receipt of the said letter, pay the said amount without protest. (v) Upon the petitioner complying with the above direction, the bank shall record full satisfaction of the award and return the documents of title deposited by the petitioner. (vi) If the petitioner fails to remit any two consecutive instalments in time, it will be open to the bank to proceed to execute the award in accordance with law. P.N.RAVINDRAN, (JUDGE) vps WPC No.13838/2011 6 P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 13838 OF 2011 -------------------------- Dated this the 24th day of May, 2011 O R D E R Admit. Issue urgent notice returnable in 10 days to the respondents. If as on today the property described in Ext.P1 sale notice has not been sold, there will be an interim order staying the sale of the said property for a period of three months in the event of the petitioner depositing with the first respondent the sum of Rs.50,000/- (Rs.Fifty thousand only) within one month from today and a further sum of Rs.50,000/- (Rs.Fifty thousand only) within another month thereafter. Hand over a copy of this order on usual terms. P.N.RAVINDRAN, (JUDGE) vps