IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 WP(C).No. 26918 of 2008(D) -------------------------- PETITIONER(S): --------------- THOMAS T.J., S/O OUSEPH, THARAYIL HOUSE, KARIYANNUR VILLAGE, THALAPPILLY TALUK, THRISSUR. BY ADV. SMT.S.MUMTAZ RESPONDENT(S): --------------- 1. THE THRISUR DISTRICT CO-OPERATIVE BANK LTD., ERUMAPETTY BRACH, REP. BY ITS SECRETARY, ERUMAPETTY, THRISSUR. 2. THE SPECIAL SALE OFFICER, THRISSUR DISTRICT CO-OPERATIVE BANK, HEAD OFFICE, THRISSUR. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT. CO-OPERATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. *ADDL. R4. A.V.SUBHASH, PARIYANGAD ANGOTHU VEEDU, MARATHUKUNNU, VADAKKANCHERRY. (*IMPLEADED AS ADDITIONAL 4TH RESPONDENT AS PER ORDER DATED 24/09/2009 IN I.A.NO.12231/2008) ADV. SRI.V.G.ARUN,SC,THRISSUR DIST.CO-OP BAN FOR R1 SRI.T.R.HARIKUMAR,SC,THRISSUR DIST.CO.O FOR R1 SRI.SANTHEEP ANKARATH FOR ADDL.R4. SHRI.K.C.SANTHOSH KUMAR, GOVERNMENT PLEADER FOR R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------- W.P.(C.) No.26918 of 2008 --------------------------------- Dated, this the 3rd day of November, 2008 J U D G M E N T On the basis of the admission of the plaint claim by the writ petitioner in his deposition, the petitioner suffered an arbitration award under the Kerala Co-operative Societies Act, 1969 on 21/11/2005. In November, 2007, he filed a revision before the Kerala Co-operative Tribunal against that award. In that revision, R.P.No.136/2007, the Tribunal passed an interlocutory order on 30/11/2007 ordering stay on condition of payment of rupees four lakhs on or before 30/01/2008. The petitioner did not comply with that condition. Notwithstanding that, execution proceedings were held up. The petitioner, thereafter, filed WP(C) No.24863/2008 seeking intervention of this Court. That was dismissed as per judgment dated 18/08/2008. 2. Thereafter, this writ petition, WP(C) WP(C) No.26918/2008 -2- No.26918/2008, was filed on the plea that the execution proceedings have reached the door steps of the petitioner. At the stage of admission, the learned counsel for the Bank submitted that the sale has been conducted and the property was purchased by the Bank. In that view of the matter, the petitioner withdrew R.P.No.136/2007 and filed an affidavit dated 17/09/2008 before this Court stating that fact. A judgment was issued by this Court on 19/09/2008 acting on the said affidavit and the submission that the Bank, being the auction purchaser, the petitioner's case would be considered by the Bank for reconveyance. 3. But, it turned out that the submission made on behalf of the Bank, as stated above, was on a mistake of fact, and accordingly, the case was listed “to be spoken to”. Thereupon, it was noticed that the bid was in favour of a third party, who is now the additional 4th respondent in this writ petition. It is obvious that the withdrawal of WP(C) No.26918/2008 -3- R.P.136/2007 was essentially on the premise that the matter would end without adjudication, if the Bank would reconvey the property. Therefore, order dated 23/09/2008 was issued recalling the judgment dated 19/09/2008 and listing this writ petition for further consideration on 24/09/2008, and also directing the Kerala Co-operative Tribunal to dispose of R.P.136/2007 on merits and without treating it as withdrawn by the petitioner, as stated in his affidavit dated 17/09/2008. When this matter came up on 24/09/2008, the additional 4th respondent was impleaded and notice was issued staying confirmation of sale. 4. When this matter is taken up today, on hearing the learned counsel for the parties, I am satisfied that the auction purchaser, the additional 4th respondent, is not prepared to concede to reconvey the property. He is entitled to object to any request to set aside the sale. The petitioner may, even on grounds different from those WP(C) No.26918/2008 -4- involved in R.P.136/2007 of the Tribunal, seek setting aside of the sale. The only hitch for that application would be that, the petitioner was bonafide prosecuting this writ petition and the Bank disclosed the factum of the sale, only when the case was taken up “to be spoken to”, as recorded above. 5. For the aforesaid reasons, sustaining the directions to the Kerala Co-operative Tribunal issued as per the order dated 23/09/2008 in this case, this writ petition is ordered directing that the confirmation of the sale will stand deferred, if the petitioner submits an application within two weeks from today, before the competent Sale Officer, to have the sale set aside. The said application will be considered on merits, after issuing notice and giving adequate opportunity of hearing to the Bank, the debtor and the auction purchaser, the additional 4th respondent herein. Having regard to the lapse of time with the pendency of this WP(C) No.26918/2008 -5- writ petition, the learned counsel for the additional 4th respondent has very fairly stated that it may be directed that the application to set aside the sale shall be considered on merits without treating it as time barred. Having regard to the different enabling provisions, and in view of the justice in the situation, it is ordered that the application to set aside the sale would be entertained and considered without taking into consideration any time limit. If such application is filed within the time frame fixed above, the confirmation of sale would stand deferred by three months, within which time, the application to set aside the sale would be considered and disposed of. It is also clarified that this judgment, in no way, exempts the petitioner from complying with the statutory conditions attached to the application to set aside the sale. 6. Following this judgment, if the petitioner requests the Co-operative Tribunal to expedite the final hearing of WP(C) No.26918/2008 -6- R.P.No.136/2007, I am sure that the Tribunal would consider the same sympathetically. The writ petition is ordered as above. Copies of the judgment dated 19/09/2008 in the writ petition, which has been recalled, and order dated 23/09/2008 will stand appended to the judgment. (THOTTATHIL B.RADHAKRISHNAN, JUDGE) jg