IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 WP(C).No. 16987 of 2010(W) -------------------------- PETITIONER:- ------------------ JAMALUDHEEN, AGED 49 YEARS, THENGUVILA VEEDU, VAYAKKAL.P.O, KOLLAM DISTRICT. BY ADV. SRI.SHEJI P.ABRAHAM RESPONDENTS:- --------------------- 1. THE MANAGER, SOUTH INDIAN BANK LTD., INDUSTRIAL FINANCE BRANCH, M.G. ROAD, ERNAKULAM. 2. P.V. MUHAMMED ASLAM & CO REP. BY MR.P.V. MUHAMMED ASLAM, 42/1600, MARKET ROAD, KOMBARA, ERNAKULAM ADV. SRI.GEORGE VARGHESE,SC,SOUTH INDIAN BAN FOR R1 SRI.P.R.MILTON FOR R1 SRI.K.J.CHACKOCHAN FOR R1 SRI.A.B.JALEEL SRI.A.B.JALEEL FOR R2 SRI.P.H.SHAJI (THRIKKAKARA) FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. = = = = = = = = = = = = = = WP(C).No.16987 of 2010-W. = = = = = = = = = = = = = = Dated this the 3rd March, 2011. J U D G M E N T Petitioner as well as the 2nd respondent were partners in a firm which availed credit facility from the first respondent Bank. Consequent to default committed in repayment, the first respondent Bank had approached the Debt Recovery Tribunal, Ernakulam by filing OA.No.140/2004. The OA was decreed by virtue of Ext.P1 final order, allowing the first respondent to realise a sum of Rs.24,35,953.06 with interest on the principal amount, charged on the properties scheduled in the OA. 2. It is stated that, in the meanwhile, there was a compromise arrived between the petitioner and the 2nd respondent with respect to payments dues to the first respondent Bank. Since the terms of compromise thus arrived was not complied with, the petitioner had filed an WP(C).No.16987/2010-W. 2 application before the Debt Recovery Tribunal as IA.No.1144/2007 to reopen the exparte order passed. However it is evident that terms of the compromise was not materialised and the amounts were not paid to the first respondent in accordance with such terms. 3. In this writ petition, the petitioner is challenging steps taken by the recovery officer for proclamation and sale of the property, in execution of Ext.P1 final order. Contention of the petitioner is that by virtue of the settlement he was liable for payment of only a sum of Rs.10 lakhs and that the failure was on the part of the 2nd respondent to make payment of his part, in view of the settlement. It is also brought to the notice of this Court that consequent to dishonour of cheque issued by the 2nd respondent as well as the petitioner, criminal complaints were instituted by the first respondent Bank alleging offence punishable under Section 138 of the Negotiable Instruments Act. The conviction and sentence entered in WP(C).No.16987/2010-W. 3 such criminal complaints were subject matter of Criminal Revision Petitions which were pending before this court. According to the petitioner, in the Criminal Revision Petition filed by him, the matter was compromised and he had remitted the entire amount of Rs.11,00,000/- due under the cheque in question. It is also mentioned that the Criminal Revision Petition filed by the 2nd respondent was disposed of granting time for effecting payment of compensation amount to the tune of Rs.20,00,000/- within a period of three months. Contention of the petitioner is that if the amounts due from the 2nd respondent is paid in terms of the judgment in Criminal Revision Petition, there will not be any further due towards the loan account. 4. However, it is noticed that the sale proclaimed under Ext.P3 was not materialised. Going by terms of Ext.P1, nothing is discernible to the effect that there was any compromise arrived with the intervention of the first respondent in respect of payment of amounts due, nor it is WP(C).No.16987/2010-W. 4 evident that any apportionment of the liability was there between the petitioner and the 2nd respondent. Under such circumstances I am of the view that, the petitioner could not be exonerated from the liability by virtue of any order in this writ petition, on the basis of the contentions based on the conviction and sentence in the Criminal Revision Petitions, or on the basis of any alleged compromise entered between the parties. Moreover, it is an admitted case that the alleged compromise entered prior to passing of final order was not complied with, at that stage itself. 5. However, it is left open to the petitioner to approach the recovery officer with any claim or objection with respect to further proceedings against the immovable property. Learned counsel for the first respondent Bank conceded that whatever amounts paid will be given credit towards liability due under Ext.P1. 6. Under the above circumstances, the writ petition WP(C).No.16987/2010-W. 5 is dismissed reserving liberty to the petitioner to approach recovery officer seeking appropriate relief as permissible under law. C.K.ABDUL REHIM, (Judge) Kvs/-