IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 5781 of 2007(L) ------------------------- PETITIONER(S): --------------- RAJAN, S/O.PUTHOOR RAMAKRISHNAN, EDATHIRINJI VILLAGE, KAKKATHURUTHY DESOM, IRINJALAKUDA, THRISSUR DISTRICT. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): --------------- 1. IRINJALAKUDA TOWN CO-OPERATIVE BANK REPRESENTED BY THE MANAGING DIRECTOR. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, TRIVANDRUM. 3. THE SALE OFFICER, IRINJALAKUDA TOWN CO-OPERATIVE BANK, IRINJALAKUDA. ADV. SRI.N.P.SAMUEL FOR R1 MR.MOHAMMED HASHIM, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.5781/2007 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT ABOUT THE SALE OF THE PROPERTIES. P2 : COPY OF THE CIRCULAR NO.9/2006 OF THE 2ND RESPONDENT. P3 : COPY OF THE REPRESENTATION FILED BY THE PETITINER BEFORE THE 1ST RESPONDENT. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.5781 of 2007 --------------------------------- Dated, this the 2nd day of July, 2009 J U D G M E N T In the year 1998, the petitioner had availed of a loan from the 1st respondent. It is stated that till August, 2001, instalments were paid, and thereafter default was committed. The Bank filed ARC No.2359/2002 and an award was passed by the Arbitrator with interest at 21%. The petitioner challenged the award before the Tribunal and the Tribunal, though confirmed the award, reduced the interest to 19%. 2. Aggrieved by the above, the petitioner filed a writ petition before this Court as WP(C) No.34507/2004, which was disposed of by judgment dated 10/01/2005. In the judgment, though the petitioner was given freedom to apply for instalment facility to discharge the debt, as the petitioner did not comply with the conditions imposed by this Court, the petitioner could not avail of the said benefit. As a result of the default thus committed he lost the benefit of the judgment and hence execution proceedings were WP(C) No.5781/2007 -2- initiated by the Bank. In pursuance thereto by Ext.P1 notice, the 3rd respondent proposed to sell the property on 16/02/2006. It is the case of the petitioner that the sale did not materialize, and was adjourned. 3. At that stage, the 1st respondent issued Ext.P2 circular No.09/2006 dated 27/02/2006 introducing a One Time Settlement Scheme, valid till 30/06/2006. The petitioner submitted Ext.P3 application dated 21/06/2006 claiming the benefit of Ext.P2 and requesting that the payments he had made in the meanwhile be given credit to the amount payable under the OTS scheme. The application was not considered, and therefore, this writ petition was filed. 4. In this writ petition, by order dated 21/02/2007, this Court granted stay of further proceedings in pursuance to Ext.P1 notice of sale on condition that the petitioner remits an amount of Rs.10,000/-. According to the learned counsel for the petitioner the above order has been complied with. 5. The 1st respondent has filed a counter affidavit. In the counter affidavit two contentions have been raised. First is that the petitioner was already extended the benefit of OTS Scheme and that WP(C) No.5781/2007 -3- he did not avail of the same. It is stated that a person, who was extended the benefit of OTS Scheme and by default did not avail of the benefits, is not entitled to make application for another OTS Scheme. Secondly, it is also contended that Ext.P2 is an OTS scheme intended to extend reliefs to Agriculturists, and that the loan availed of by the petitioner was not an agricultural loan, and therefore, the petitioner is not entitled to the benefit of Ext.P2. 6. I have heard the learned counsel for the petitioner. If a person has availed of a loan, and did not make payment as agreed between the parties, he is a defaulter. Such a defaulter is entitled to apply for any beneficial scheme that is announced by the Bank or the Registrar of Co-operative Societies. If he does not comply with the conditions, subject to which, the beneficial scheme is extended, he will continue to be a defaulter. Unless the subsequent scheme contains a provision rendering them ineligible, such defaulter should be entitled to apply for any subsequent scheme. Therefore, the fact that a person has defaulted in complying with the conditions of the prior scheme, will not, by itself, in any manner render him ineligible for any subsequent scheme. Therefore, the first contention in the counter affidavit is totally unacceptable. WP(C) No.5781/2007 -4- 7. The other contention raised is that Ext.P2 is a scheme intended for agriculturists and the loan availed of by the petitioner is not an agricultural loan. A reading of Ext.P2 in its totality does not justify such a conclusion. On the other hand, Clause 11 of Ext.P2 itself makes it clear that even Housing Co-operative Societies were entitled to implement the Scheme giving the benefit of Ext.P2. If that be so, there is absolutely no justification for the view that the Bank has taken that the benefit of Ext.P2 is confined to only agricultural loans. Therefore, both the contentions raised in the counter affidavit did not merit acceptance. 8. In view of the above, I dispose of the writ petition directing the respondents to consider Ext.P3 application made by the petitioner in the light of Ext.P2 scheme, and pass orders thereon. This shall be done as expeditiously as possible, at any rate, within four weeks of production of a copy of this judgment. In the meanwhile, interim order dated 21/02/2007 will remain in force. The writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg