K.P.MUHAMMED BASHEER v. Kannur District Co-operative Bank Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933** **WP(C).No. 10412 of 2011(B)** **----------------------------------------** **PETITIONER(S):** **-------------------------** **K.P.MUHAMMED BASHEER, S/O.KUTTYALI, AGED 39 YEARS, KOVVAL PUTHIYAPURAYIL HOUSE, VALAKKAI, KOYYAM P.O., CHENAGALAYI AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT, REPRESENTED BY POWER OF A/H SHABEER, S/O.MOIDEEN KUTTY,AGED 25 YEARS, SREEKANDAPURAM P.O., TALIAPARAMBA TALUK, KANNUR DISTIRCT.** **BY ADV. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH** **RESPONDENT(S):** **---------------------------** **KANNUR DISTRICT CO-OPERATIVE BANK LTD., KANNUR, REPRESENTED BY ITS GENERAL MANAGER, KANNUR-PIN-670 001.** **BY ADV.SRI.P.NARAYANAN,SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.10412/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE POSSESSION NOTICE AFFIXED ON THE RESIDENCE OF THE PETITIONER BY THE RESPONDENT.** - **P2 COPY OF THE PAPER ADVERTISEMENT DATED 18/11/2011 IN DESHABHIMANI DAILY.** - **P3 COPY OF THE REVISION PETITION NO.120/2011 FILED BY THE PETITIONER BEFORE THE CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM.** - **P4 COPY OF THE DELAY PETITION FILED BEF0RE THE CO-OPERATICE TRIBUNAL, THIRUVANANTHAPURAM.** - **P5 COPY OF THE STAY PETITION FILED BEFORE THE CO-OPERATICE TRIBUNAL, THIRUVANANTHAPURAM.** ## **RESPONDENT'S EXHIBITS:** ## **NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **P.N.RAVINDRAN** , **J.** ## **--------------------------W.P.(C) No. 10412 OF 2011 -------------------------Dated this the 25[th] day of November, 2011** ## **J U D G M E N T** The petitioner availed a loan from the respondent bank on the security of a parcel of land 5 acres in extent situate in ReSurvey No.49/2 and 50/3 of Malappattam Amsom. When the loan was not repaid, the respondent bank took steps under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the Act' for short). The petitioner thereupon challenged the initiation of proceedings under the Act in this Court. Though the writ petition was dismissed, in W.A. No.155 of 2010 filed by the petitioner, a Division Bench of this Court held that the SARFAESI Act cannot be invoked to proceed against agricultural properties. The respondent bank thereupon instituted an arbitration case ARC No.259 of 2010 under section 69 of the Kerala Co-operative Societies Act and in that case an award was passed on 16.6.2010. Even thereafter the petitioner did not repay the loan or discharge the debt. The bank thereupon took WPC No.10412/2011 2 steps to execute the award by moving the Sale Officer in terms of rule 81 of the Kerala Co-operative Societies Rules. The Sale Officer thereupon issued Annexure A1 notice dated 5.5.2011 demanding payment of the decree debt failing which the petitioner was informed that the property offered as security will be sold in public auction. Thereafter also the petitioner did not repay the loan. The Sale Officer thereupon issued Ext.P2 sale proclamation proposing to sell the property on 26.11.2011. It is in the background of these facts that the instant writ petition has been filed seeking the following reliefs: _“a) That this Hon'ble Court may be pleased to issue a Writ of Mandamus or writ in the nature of Mandamus or other appropriate writ or order directing the respondent not to sell the properties of the petitioner in public auction._ _b) That this Hon'ble Court may be pleased to issue a Writ of Mandamus or writ in the nature of Mandamus or other appropriate writ or order directing the respondent to accept the proposal for One Time Settlement of the loan by the petitioner._ _c) For cost and compensation of the petition.”_ 2. The main contention raised by the petitioner, who is admittedly employed abroad, is that he is ready and willing to pay the actual amount due under the one time settlement WPC No.10412/2011 3 scheme. It is also stated that the bank did not give him notice of the recovery proceedings and that without notice the bank has no right to sell the property. It is also stated that challenging the award, the petitioner has filed R.P.No.120 of 2011 before the Kerala Co-operative Tribunal wherein he has prayed for an interim order staying the execution of the award. 3. I heard Sri.V.T.Madhavan Unni, learned counsel appearing for the petitioner and Sri.P.Narayanan, learned standing counsel appearing for the respondent. The learned counsel appearing for the petitioner contended that a copy of the award passed by the Arbitrator was not communicated to the petitioner and therefore he was disabled from challenging the award in appeal before the Kerala Co-operative Tribunal. The learned counsel also contended that the Registrar of Co-operative Societies has issued circulars extending certain concessions to persons who have availed loans from co-operative institutions and the said benefits were also not extended to him. Per contra, Sri.P.Narayanan, the learned standing counsel appearing for the respondent contended that though the petitioner was given WPC No.10412/2011 4 benefits under Circular Nos.63 of 2010 and 41 of 2011 issued by the Registrar of Co-operative Societies, the petitioner was not willing to settle the loan account under the one time settlement scheme contemplated therein and therefore he is not entitled to any relief. The learned counsel also contended that as the petitioner has already moved the Kerala Co-operative Tribunal by filing a revision petition, he cannot prosecute this writ petition. 4. I have considered the submissions made at the Bar by the learned counsel on either side. Apart from vaguely stating that he is entitled to the benefits under the one time settlement scheme, the petitioner has not stated that he had at any point of time prior to the filing of the writ petition requested the bank in writing to extend to him the benefits flowing from any of the circulars issued by the Registrar of Co-operative Societies. As a matter of fact, any pleadings in that regard is lacking in the writ petition. Apart from stating that the petitioner is ready to avail the benefits of the one time settlement scheme, the petitioner has not chosen to state whether at any point of time after the loan was availed he had approached the bank for one time WPC No.10412/2011 5 settlement. I am therefore of the considered opinion that the petitioner is not entitled to an order directing the respondent to extend to him the benefit of the one time settlement scheme. As regards the first prayer namely an order directing the respondent not to sell the properties, I am of the opinion that the petitioner should move the Kerala Co-operative Tribunal where revision petition 120 of 2011 is pending seeking reliefs in that regard. A Full Bench of this Court has in **Reena v. Geena** (2010 (2) KLT 155 (FB) held that a party who has already invoked the statutory remedy of appeal or revision cannot maintain a writ petition under Art.226 of the Constitution of India. In such circumstances, the first relief prayed for in the writ petition cannot be granted. The writ petition fails and is accordingly dismissed without prejudice to the right of the petitioner to prosecute the revision petition presently pending in the Kerala Co-operative Tribunal. ## **P.N.RAVINDRAN, (JUDGE)** vps WPC No.10412/2011 6