IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 WP(C).No. 28425 of 2006(H) --------------------------------------- PETITIONER: ------------------- P.G. SASIDHARAN, VELLAPPALLIL, KATTACHIRA P.O., KIDANGOOR, KOTTAYAM DISTRICT. BY ADV. SRI.P.B.SAHASRANAMAN, ADV. SRI.K.JAGADEESH, ADV. SRI.T.S.HARIKUMAR. RESPONDENTS: ------------------------ 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOTTAYAM. 2. THE ASSISTANT REGISTRAR (GENERAL), CO-OPERATIVE SOCIETIES, KOTTAYAM. 3. THE SPECIAL SALES OFFICER, SERVICE CO-OPERATIVE GROUP, ETTUMANOOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOTTAYAM. 4. GEORGE MATHEW, PINDIPPUZHA, KATTACHIRA P.O., KIDANGOOR. *ADDL.R5. ETTUMANOOR SERVICE CO-OPERATIVE BANK LTD. NO. 40692, ETTUMANOOR, REPRESENTED BY IT'S SECRETARY. *IS IMPLEADED AS ADDL. 5TH RESPONDENT AS PER ORDER DATED 06/11/06 IN I.A. 15247/06. R1 TO R3 BY SR. GOVT. PLEADER SMT. ANU SIVARAMAN, ADV. SRI.C.K.PAVITHRAN, ADV. SRI.C.J.JOY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.28425/2006-H: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE ORDER NO. G/1/2005/E.A. 4895/01. DTD. 03/12/2005. EXT.P.2: COPY OF THE ORDER NO. C.R. P (1) 5201/06/K. DIS., DTD. 27/09/2006. RESPONDENT'S EXHIBITS: EXT.R4.A: COPY OF THE PETITION DTD. 18/08/2005 SUBMITTED BY THE R.4. EXT.R4.B: COPY OF THE PETITION DTD. 24/02/2006 SUBMITTED BY THE R.4. EXT.R4.C: COPY OF THE PETITION DTD. 01/11/2006 SUBMITTED BY THE R.4. EXT.R4.D: COPY OF THE PETITION DTD. 17/10/2006 SUBMITTED BY THE R.4. //TRUE COPY// prv. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.28425 OF 2006 ------------------------------------------- Dated this the 27th day of February, 2008 JUDGMENT The 4th respondent availed a loan from the additional 5th respondent. This resulted in an arbitration award under the Kerala Co-operative Societies Act, 1969, hereinafter referred to as 'the Act'. Non satisfaction of that award led to sale proceedings. The writ petitioner bid in auction. By Ext.P1, the second respondent, exercising powers of the Registrar, set aside that sale. Eight months thereafter, the petitioner moved the first respondent and Ext.P2 was issued considering his case also, sustaining Ext.P1. Hence, this writ petition. 2. The two grounds raised in the writ petition and argued at the time of hearing today are that the application to set aside the sale was filed by the 4th respondent beyond the time limit fixed under Rule 83(1) of the Kerala Co-operative Societies Rules, 1969, hereinafter referred to as 'the Rules' and that WPC.28425/06 Page numbers Ext.P1 is bad in as much as the same was issued without giving the petitioner an opportunity of being heard. 3. The 4th respondent has filed a counter affidavit. It is his contention that he filed the application in time and that by the issuance of Ext.P2 by considering the case of the petitioner, the challenge to Ext.P1 does not stand. 4. Rule 83(1) provides for setting aside a sale on ground of material irregularity or mistake or fraud in publishing or conducting the sale. A time limit of 30 days is prescribed for applying to set aside the sale under that provision. On the application of the petitioner which is dated 18.8.2005, to set aside the sale held on 21.7.2005, the second respondent conducted an enquiry and concluded that immediately after the sale for Rs.90,000/-, which amount was arrived at after getting certain other outstandings due from the 4th respondent to the 5th respondent, the sale officer notified the 4th respondent, the debtor, that he may avert the sale by depositing an amount of Rs.1,34,221/- or otherwise face confirmation of sale for WPC.28425/06 Page numbers Rs.90,000/-. After having knocked down the sale for Rs.90,000/-, further insistence that the 4th respondent could have averted the sale from being confirmed if he remits a larger amount was taken note of by the Assistant Registrar and the intervening circumstances were also noticed to hold that the sale deserves to be set aside and cannot be confirmed. So much so, the exercise undertaken by the issuance of Ext.P1 could be treated only as one relating to the action taken by the sale officer touching matters that followed the conduct of the sale and hence that order does not really fall within the parameters of publishing and conducting the sale within the meaning of those terms in Rule 83 (1) of the Rules. The decision of the Assistant Registrar that the sale is not to be confirmed and that it has to be set aside is one with jurisdiction in as much as Rule 83(1) and the third proviso thereto give room for such a consideration while confirming the sale, even if there is no application to set aside the sale. That proviso has been noticed by this Court in People's Urban Co- op. Bank Ltd. v. Mohanan [1992 (2) KLT 745] and the officer exercising the powers of the Registrar is not tied down to any time limit in such a case and even an application is not required. WPC.28425/06 Page numbers Merely because the 4th respondent had filed an application, the second respondent could not be tied down to that, because, the ground on which the sale has been set aside is not referable to one directly falling under Rule 83 (1) and could only be treated as a reason, that is, a ground sufficient enough to set aside the sale notwithstanding Rule 83 (1). If the auction was knocked down for Rs.90,000/- and if the 4th respondent was called upon to pay off even all other outstandings to avert confirmation of sale, that was an exceptional ground for interference under Rule 83 (3). So much so, the plea as to limitation and the plea as to absence of grounds to set aside the same does not survive. 5. In so far as the plea of the writ petitioner that he was not given an opportunity to hear before the issuance of Ext.P1 is concerned, it has to be noted that the petitioner thereafter moved the first respondent and his entire case was considered by the first respondent even on the merits of the matter. Though it was noted by the first respondent that the petitioner moved only after eight months of Ext.P1, that may be of no consequence since the petitioner was not heard before Ext.P1 was issued. WPC.28425/06 Page numbers However, the fact remains that in Ext.P2, there is clear consideration by the first respondent, on all the grounds of objections by the writ petitioner. Hence, that ground also fails. 6. Having regard to the time lag, it is directed that the additional 5th respondent Bank will treat the amount paid by the first respondent as consideration for the sale, to be an amount available in Fixed Deposit for the period from the date of remittance till the date on which it is released to the petitioner. Interest will also be released on such amount accordingly. In the result, this writ petition fails. The same is accordingly dismissed. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.