IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 WP(C).No. 36437 of 2009(Y) -------------------------- OA.1726/2006 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER(S): --------------- HASHIM KAKKODAN, KAKKODAN HOUSE, P.O.POOMALA, SULTHAN BATHERY. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): --------------- 1. MANAGER, PUNJAB NATIONAL BANK, SULTHAN BATHERY BRANCH, SULTHAN BATHERY. 2. RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL, PANAMPILLY NAGAR, ERNAKULAM. ADV. SRI.C.AJITH KUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.36437 OF 2009 ------------------------------ Dated this the 22nd day of December, 2009 J U D G M E N T ---------------------- 1. The writ petition is filed challenging steps initiated by the 2nd respondent Recovery Officer for sale of immovable property proclaimed on 17.12.2009, in execution of Recovery Certificate issued in O.A.344/2000. According to the petitioner he had filed Ext.P1 interlocutory application before the 2nd respondent seeking adjournment of the sale proclaimed, for a period of 24 months, so as to enable the petitioner to settle the liability. It is complained that steps for effecting sale is being pursued without considering such application. 2. On 16.12.2009 when the writ petition came up for consideration the petitioner was directed to serve notice on the counsel appearing for the respondent Bank. Confirmation of sale if any takes place was directed to be kept in abeyance. In the Counter affidavit filed on behalf of the 1st respondent it is stated that the cash credit facility in question was availed as early as in the year 1992 and thereafter 3 agricultural term loans were availed during August 1997. Consequent to default committed in repayment of the loans, the accounts were categorised as 'NPA' in the year 2000, and the 1st respondent filed OA 344/2000 W.P.(C).36437/09-Y 2 seeking realisation of a sum of Rs.23,20,788/- with future interest @ 21%. During pendency of the O.A. a compromise was arrived on the basis of which it is agreed that if an amount of Rs.16,75,000/- is paid, the same will be considered as full and final settlement. Eventhough the petitioner remitted a sum of Rs.3,06,719/- the balance which was promised to be paid in 6 installments were defaulted. Ext.R1(b) is the order issued by the Debt Recovery Tribunal disposing the OA on the basis of the compromise. The recovery certificate was directed to be kept in abeyance till 12.7.2005 in order to facilitate compliance of the terms of settlement. Thereafter proceedings was initiated before the 2nd respondent for execution of the recovery certificate. At that stage the petitioner approached this court in WP(C). No:23842/05. In Ext.R1(d) judgment the petitioner was directed to deposit a sum of Rs.3,30,000/- being 25% of the settled amount, within 7 days thereof and the remaining 75% amounting to Rs.9,88,281/-, was directed to be remitted on or before 31.12.2005, along with interest @ 7% from the date of 'one time settlement' till realisation. Eventhough the petitioner remitted a sum of Rs.1,00,000/- no further payment was made. 3. It is further stated in the counter affidavit that inspite of default committed even in complying with the directions contained in Ext.R1(d) judgment, a further 'one time settlement' was allowed by the 1st respondent, in view of the fact that the W.P.(C).36437/09-Y 3 respondents have received considerable amount from the Central Government under a package of relief measures announced with respect to agricultural loans. Under the new 'one time settlement' the petitioner was required to pay a sum of Rs.5,50,000/- only. The amount was directed to be remitted in installments of a sum of Rs.1,40,000/- on or before 30.6.2007 and the balance within three months thereafter. Ext.R1(e) is the communication issued to the petitioner in this regard. 4. The 1st respondent further contended that 7 acres and 5 cents (6 acres and 79 cents as per revenue records), along with building and all other improvements thereof statuted in Poothady Amsom and Desom of Sulthan Bathery Taluk were put for auction many times during 2007, 2008 and 2009, after making due publication in the newspapers. Since sale was not materialised the reserve price was re-fixed and reduced to Rs.21 lakhs. Due publication in newspapers were effected with respect to the sale conducted on 17.12.2009. 5. It is admitted in the counter affidavit that after effecting publication for the present sale, the petitioner submitted an application requesting for 'one time settlement' at Rs.4 lakhs, which could not be entertained by the 1st respondent at that stage. According to the petitioner the amount of Rs.4 lakhs offered was deposited. But learned counsel for the 1st respondent submits that the deposit was made only in a non-lien W.P.(C).36437/09-Y 4 account. However it is stated that on 17.12.2009 a person named Mr.Shabeer had bid the property for an amount of Rs.21,10,000/-. 6. The petitioner had filed an application seeking to amend the writ petition to incorporate additional grounds based on additional materials alleged to have obtained which related to the previous proceedings. By the amendment further relief by way of direction against the 1st respondent to settle the entire liability at Rs.5 lakhs, is also sought for. The petitioner had also sought impleadment of the Asset Recovery Manager of the 1st respondent Bank. Those applications were allowed. 7. Considering the entire facts and circumstances of the case as revealed in the counter affidavit it is evident that proceedings is now pending before the 2nd respondent recovery officer. The 2nd respondent is pursuing execution of a recovery certificate issued by the Debt Recovery Tribunal. Even after disposal of the matter by the Debt Recovery Tribunal the petitioner had approached this court on committing default to honour the settlement. This court had shown further indulgence to permit the petitioner to pay off the liability in accordance with the compromise arrived. It is also noticed that even thereafter the Bank had provided compromise facility in view of the amount received from the Central Government. Having failed in making use of all such opportunities, the petitioner could not be W.P.(C).36437/09-Y 5 permitted to invoke jurisdiction of this court again, especially when the matter is pending before the 2nd respondent. Going by provisions contained in the relevant statute, if the petitioner has got any grievance against sale being conducted by the 2nd respondent, he has got remedies available to challenge such proceedings, before the 2nd respondent himself and further remedies by way of appeal before the Debt Recovery Tribunal. Needless to say that the petitioner can approach the 2nd respondent to set aside the sale alleged to have been conducted on 17.12.2009 which stands not yet confirmed. 8. Therefore the writ petition is dismissed without prejudice to rights of the petitioner to seek appropriate statutory remedy before the 2nd respondent, or before any other appropriate forums. 9. If any such petition is filed before the appropriate authorities, the same shall be disposed of untrammeled by any of the observations contained herein. It is made clear that all the contentions raised in this writ petition is left open for challenge. C.K.ABDUL REHIM, JUDGE. okb