Gopan s/o Sankaran Ezhuthachan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 03RD DAY OF DECEMBER 2018 / 12TH AGRAHAYANA, 1940** ## **WP(C).No. 7740 of 2018** ## **PETITIONER:** **GOPAN, S/O.SANKARAN EZHUTHACHAN, KANKAPARAMBIL HOUSE, RAMAVARMAPURAM P.O., THRISSUR DISTRICT, PIN-680631.** **BY ADVS. SRI.DINESH MATHEW J.MURICKEN SRI.K.VISWANATHAN** ## **RESPONDENTS:** **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 JOINT REGISTRAR (GENERAL) CO-OPERATIVE SOCIETIES, OFFICE OF THE JOINT REGISTRAR (GENERAL),SAHAKARANA BHAVAN, THRISSUR DISTRICT, PIN-680003. 3 THE SALE OFFICER, THE THRISSUR CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD. NO.329, P.O.POOTHOLE, THRISSUR DISTRICT-680004. 4 THE THRISSUR CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD. NO.329, P.O.POOTHOLE, THRISSUR DISTRICT-680004, REPRESENTED BY ITS SECRETARY.** **BY ADVS. SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN SMT. SHEEJA C.S., SR.GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WPC 7740 OF 2018 ## **JUDGMENT** The petitioner, who availed a loan for Rs.15,00,000/- from the 4[th] respondent Bank, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the Rules made thereunder, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 communication dated 01.02.2018 issued by the 3[rd] respondent Sale Officer; and seeking a declaration that the sale of the property having an extent of 2.25 ares in Re.Sy.No.6/28 of Vilvattom Village, Thrissur Taluk, sold on 25.01.2018 by the 3[rd] respondent, is liable to be set aside on the ground of material irregularity and fraud. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent Joint Registrar to consider Ext.P5 application and to pass appropriate orders. 2. On 07.03.2018, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 and 2. Urgent notice by speed post was ordered to respondents 3 and 4, returnable within three weeks. 3 WPC 7740 OF 2018 3. On 08.10.2018, when this writ petition came up for consideration, the learned counsel for the 4[th] respondent Bank, on instructions, submitted that the sale of the property offered as security was conducted on 01.02.2018 for Rs.20,45,883/-. 4. On 15.10.2018, when this writ petition came up for further consideration, the learned counsel for the 4[th] respondent Bank pointed out that after availing a loan for Rs.15,00,000/from the Bank on 17.04.2015, the only remittance made by the petitioner is for a sum of Rs.33,410/- which was made on 18.05.2015. Relying on the judgment of a Three-Judge Bench of the Apex Court in **Haryana Financial Corporation and another v. Jagdamba Oil Mills and another (2002) 3 SCC 496** , the learned counsel would contend that a chronic defaulter like the petitioner is not entitled for any discretionary relief from this Court under Article 226 of the Constitution of India. 5. In the writ petition, it is averred that the petitioner could not pay the instalments regularly because of the sudden collapse of his business of making gold ornaments. The fact that the petitioner was a chronic defaulter is not disclosed in this writ petition. WPC 7740 OF 2018 4 6. On 22.10.2018, when this writ petition came up for consideration, the learned counsel for the petitioner was directed to file an affidavit as to the remittance already made after availing a housing loan for Rs.15 lakhs from the 4[th] respondent in the year 2015. Pursuant to the said order, an affidavit dated 13.11.2018 has been filed by the petitioner, wherein it has been stated as follows; “3. I had paid the 1[st] instalment of the loan and there after I could not pay the loan instalments. 4. I availed the loan, calculating that the loan instalment of Rs.30,000 could be paid from the income derived from the business of making of gold ornaments. But, unfortunately, North Indian dealer who used to collect gold ornaments from me was involved in a case and the order placed by him were cancelled. My business, centered around the said dealer stopped and resulted in collapse of my business. This is the reason, why I could not remit loan instalments. There is no wilful laches or negligence on my part in non-payment of loan instalments.” 7. On 22.11.2018, when this writ petition came up for further consideration, the learned counsel for the 4[th] respondent, on instructions, submitted that the value of the property shown in Exts.P2 and P3 is fixed with reference to the value of 2.25 Ares of 5 WPC 7740 OF 2018 property along with residential building shown in the sale deed, which is deposited with the Bank. The learned counsel also submitted that though the petitioner is a chronic defaulter, if he is prepared to pay off the entire dues in five equal monthly instalments, the Bank has no objection in this Court granting him such an opportunity for repayment. 8. On 28.11.2018, when this writ petition came up for further consideration, the learned Senior Government Pleader was directed to get instructions from the 2[nd] respondent Joint Registrar as to whether Ext.P5 request made by the petitioner is still pending consideration. 9. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 and 2 and also the learned counsel for the 4[th] respondent Bank. Despite service of notice, none appears for the 3[rd] respondent Sale Officer. 10. The learned Senior Government Pleader, on instructions from the 2[nd] respondent, would submit that Ext.P5 representation made by the petitioner is still pending consideration. WPC 7740 OF 2018 6 11. The learned counsel for the 4[th] respondent Bank would submit that, since the sale conducted on 01.02.2018 is yet to be confirmed by the 2[nd] respondent Joint Registrar and since Ext.P5 representation made by the petitioner is pending consideration before the 2[nd] respondent, appropriate orders may be passed for consideration of that representation, provided the petitioner shows his bonafides by remitting a portion of the amount covered by Ext.P1 demand notice. 12. The learned counsel for the petitioner would submit that the petitioner shall deposit a sum of Rs.2,00,000/- with the 4[th] respondent Bank within two weeks from the date of receipt of a certified copy of this judgment, as a pre-condition for the 2[nd] respondent considering Ext.P5 application. 12. Having considered the submissions made by the learned counsel on both sides, this writ petition is disposed of with the following directions; (i). Within two weeks from the date of receipt of a certified copy of this judgment, the petitioner shall pay a sum of Rs.2,00,000/- with the 4[th] respondent Bank. (ii). Thereafter the 2[nd] respondent Joint Registrar shall WPC 7740 OF 2018 7 consider Ext.P5 representation made by the petitioner, with notice to the petitioner and also to the 4[th] respondent Bank and take an appropriate decision, as expeditiously as possible, at any rate within a period of 6 weeks from the date of such payment and production of a certified copy of this judgment. It is made clear that this Court has not expressed anything as to the merits of the claim made by the petitioner in Ext.P5 and it is for the 2[nd] respondent Joint Registrar to take an appropriate decision, strictly in accordance with the law. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 8 WPC 7740 OF 2018 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 25.04.2016.** **EXHIBIT P2** **TRUE COPY OF THE SALE NOTICE ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P3** **TRUE COPY OF THE SALE NOTICE PUBLISHED IN THE MALAYALA MANORAMA DAILY NEWSPAPER DATED 18.01.2018.** **EXHIBIT P4** **TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 01.02.2018.** **EXHIBIT P5** **TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER TO SET ASIDE THE SALE BEFORE 2ND RESPONDENT DATED 05.02.2018.** ## **RESPONDENTS' EXHIBITS:NIL** ## **TRUE COPY** ## **P.A. TO JUDGE**