IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 WP(C).No. 33394 of 2008(A) ---------------------------------------- PETITIONER(S): -------------------------- PUSHPA RADHAKRISHNAN, OTTAPLAKEL, THODUPUZHA EAST, IDUKKI. BY ADVS. MR.B.KRISHNA MANI, MR.JOSEPH T.JOHN. RESPONDENT(S): --------------------------- 1. THE REGISTRAR, CO-OPERATIVE SOCIETY, THIRUVANANTHAPURAM. 2. THE JOINT REGISTRAR (GENERAL), CO-OPERATIVE SOCIETY, IDUKKI. 3. THE THODUPUZHA PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK, LTD. NO. 4388, REP. BY ITS SECRETARY. 4. SPECIAL SALE OFFICER, THODUPUZHA PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK, THODUPUZHA. R1 & R2 BY SR.GOVERNMENT PLEADER MR.MOHAMMED HASHIM R3 BY ADVS. MR.P.V.BABY, MR.R.KIRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.33394/2008 A APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE TREATMENT CERTIFICATE DTD. 04/10/2002. P2: COPY OF THE ORDER DTD. 27/01/1997. P3: COPY OF THE PASS BOOK. P4: COPY OF THE RECEIPT DTD. 238/07/2000. P5: COPY OF THE RECEIPT DTD. 18/06/2001. P6: COPY OF THE RECEIPT DTD. 29/06/2002. P7: COPY OF THE RECEIPT DTD. 21/11/2002. P8: COPY OF THE NOTIFICATION DTD. 13/11/2002. P9: COPY OF THE NOTIFICATION DTD. 26/06/2002. P10: COPY OF THE REPRESENTATION DTD. 10/01/2008 ADDRESSED BY THE PETITIONER TO THE BANK. P11: COPY OF THE COMMUNICATION DTD. 11/02/2008. P12: COPY OF THE ORDER DTD. 04/06/2008 PASSED BY THE JOINT REGISTRAR. P13: COPY OF THE APPLICATION DTD. 18/03/2008. P14: COPY OF THE INTERIM ORDER DTD. 03/04/2008 PASSED BY THE KERALA STATE FARMERS DEBT RELIEF COMMISSION. P15: COPY OF THE COMMUNICATION DTD. 02/09/2008. P16: COPY OF THE CIRCULAR DTD. 30/11/2006. P17: COPY OF THE CIRCULAR DTD. 20/11/2000. P18: COPY OF THE CIRCULAR DTD. 27/09/2001. P19: COPY OF THE CIRCULAR DTD. 06/08/2002. P20: COPY OF THE CIRCULAR DTD. 22/02/2003. P21: COPY OF THE CIRCULAR DTD. 18/11/2003. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.N. RAVINDRAN, J = = = = = = = = = = W.P.(C) No. 33394 of 2008 = = = = = = = = = = = = = = Dated this the 06th day of January, 2010 J U D G M E N T Heard Sri. B.Krishnamani, the learned counsel appearing for the petitioner, Sri. K.S. Mohammed Hashim, the learned Government Pleader appearing for respondents 1, 2 and 4 and Sri. P.V. Baby, the learned counsel appearing for the third respondent. 2. The petitioner and her husband's brother availed a loan from the third respondent bank on the security of 25 cents of land belonging to the petitioner. The loan was not repaid. The third respondent bank thereupon initiated proceedings under Section 19 of the Kerala State Co- operative Agricultural and Rural Development Bank's Act 1984. The property belonging to the petitioner was brought to sale, sold in public auction and purchased by the bank. The sale in favour of the bank was confirmed by the second respondent as per order No.AEL/5520/03 dated 31/3/2004 -2- W.P.(C) No. 33394 of 2008 and thereupon a certificate of sale was issued under Section 23 of the said Act, to the third respondent on 30/09/2004. 3. Long thereafter, the petitioner moved a representation before the third respondent seeking re- conveyance of the property. On that request, the second respondent passed an order dated 4/6/2008 directing the bank to re-convey the property, on the petitioner remitting the auction amount together with interest thereon, 5% margin money and other incidental expenses. The Managing Committee of the third respondent bank thereupon passed a resolution dated 23/8/2008 and decided to re-convey the property on the above said terms. The decision taken by the third respondent bank was communicated to the petitioner by Ext.P15 letter dated 2/9/2008. This writ petition was thereupon filed challenging Ext.P15 on various grounds. The petitioner contends that the interest levied by the bank is exorbitant and that the she was not liable to pay the amount realised by the bank by sale of the security. -3- W.P.(C) No. 33394 of 2008 4. The third respondent bank has filed a counter affidavit. Para.3 thereof reads as follows : “Admittedly the petitioner along with her husband's brother availed Rs.4 lakhs by way of loan mortgaging 25 cents of property as stated by the petitioner in the Writ Petition. Admittedly the loan was defaulted and proceedings were initiated by the Bank for recovery of the loan. Auction notice was issued and in the auction in the absence of any other bidders, this respondent auctioned the property. The auction notice was published for recovery of Rs.3,51,679/- with interest and penal interest on that amount from 4.2.2000 onwards. The auction bid by this respondent was confirmed by the 2nd respondent as per order No.AEL.5520/03 dated 31.3.2004 and Sannath was granted in favour of this respondent as per proceedings dated 30.9.2004. On the basis of the representation submitted by the petitioner to the 2nd respondent an order dated 4.6.2008 was issued wherein the re- conveyance of the property was ordered in favour of the petitioner on remittance of the auction amount along with interest and 5% margin money along with other expenses and re-conveyance charges. The Bank also adopted a resolution on 23.8.2008 to re-convey the property on remittance -4- W.P.(C) No. 33394 of 2008 of the above sated amount. The said fact was also initiated vide Ext.P15 to the petitioner. The amount mentioned in Ext.P12 is not correct. The exact amount due to the bank as on 31.12.2008 is Rs.7,21,595/-. The amount mentioned in Ext.P12 by the 1st respondent is in fact not correct. In the event of the petitioner is prepared to remit the said amount along with future interest from 1.1.2009 the Bank is prepared to re-convey the property on payment of re-conveyance charges. The petitioner has already approached the Agricultural Debts Reliefs Commission and said authority has issued an order dated 3.4.2008 much earlier to the auction was held and the auction was confirmed in the name of the Bank.” 5. When this writ petition came up for hearing today, the learned counsel for the petitioner submitted that the petitioner is giving up her contentions and that she is prepared to pay the amount specified in sale proclamation together with interest and costs and the margin money and that the petitioner is also willing to meet the expenses for re-conveyance including the stamp duty, if any, payable on instruments executed by a co-operative society. In the light -5- W.P.(C) No. 33394 of 2008 of the said submission, and having regard to the averments in para.3 of the counter affidavit filed by the third respondent bank, extracted above, I am of the opinion that, the petitioner should be given an opportunity to obtain re- conveyance of the property. I accordingly, dispose of the writ petition with the following directions: i. The third respondent bank shall in the event of the petitioner remitting the amount specified in the sale proclamation, together with the subsequent interest thereon, the costs incurred by the third respondent bank for bringing the property to sale, the stamp duty if any, payable for the instrument of sale in her favour and also an amount equal to 5% of the purchase money, re-convey the property to the petitioner. ii. In order to enable the petitioner to make the aforesaid payment, the third respondent bank shall, within one month from today, inform the petitioner about the exact amount which the petitioner will have to pay to obtain such re-conveyance. The petitioner shall, within one month -6- W.P.(C) No. 33394 of 2008 thereafter, deposit the amount as determined by the third respondent bank. iii. On such deposit being made, the third respondent shall re-convey the property by executing an instrument of sale. The stamp duty if any, is payable on the instrument of sale executed by the third respondent bank, shall be met by the petitioner. iv. It is clarified that, if notwithstanding the communication received from the third respondent bank, the petitioner does not remit the amount which she is called upon to deposit, within the time limit stipulated by this Court, the bank need not re-convey the land to the petitioner and will be free to deal with the property in any manner it chooses. P.N. RAVINDRAN (JUDGE) nl