Puthiyaveetil Varghese S/O Ouseph v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE M₹ JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944 WA NO. 2027 OF 2017** **JUDGMENT IN WPC 19941/2007 OF HIGH COURT OF KERALA APPELLANT/PETITIONER:** PUTHIYAVEETIL VARGHESE S/O. OUSEPH,AGED 64 YEARS, AGRICULTURIST, RESIDING AT POYYAMALA, KUPPAD AMSOM, P.O CHUNGAKUNNU,KANNUR DISTRICT BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS SRI.K.P.HAREENDRAN ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY SECRETARY,CO-OPERATIVE DEPARTMENT, GOVERNMENT OF KEERALA,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM 2 THE JOINT REGISTRAR CO-OPERATIVE SOCIETIES KANNUR P.O., KANNUR 3 THE SPECIAL SALE OFFICER THALASSERY PRIMARY CO-OPERATIVE AGRICULTURAL DEVELOPMENT BANK LIMITED, NO.F 1030, HEAD OFFICE, THALASSERY, P.O THALASSERY WA No. 2027 of 2017 ..2.. 4 THE SECRETARY THALASSERY PRIMARY CO-OPEATIVE AGRICULTURAL DEVELOPMENT BANK LIMITEDNO. F 1030,HEAD OFFICE, THALASSERY, P.O THALASSERY 5 THE BRANCH MANAGER THALASSERY PRIMARY CO-OPERATIVE AGRICULTURAL DEVELOPMENT BANK LIMITED,THUNDIYIL BRANCH,THUNDIYIL,P.O THUNDIYIL, KANNUR DISTRICT *6 MANAGING DIRECTOR THE KERALA CO-OPERATIVE CENTRAL AGRICULTURAL DEVELOPMENTBANK LIMITED, TRIVANDRUM. [DELETED] *[R6 IS DELETED FROM THE PARTY ARRAY AT APPELLANT RISK AS PER ORDER DATED 15/11/2017 IN IA.1379/2017.] 7 PARAMBATH POYIL SASEENDRAN S/O. P P NANU, 55 YEARS, CHOCKLI AMSOM, MENAPRAM DESOM, THALASSERY TALUK P.O CHOCKLI BY ADVS. SMT.BINDUMOL JOSEPH SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.K.V.PAVITHRAN SRI.B.S.SYAMANTHAK ## **OTHER PRESENT:** SMT PRINCY XAVIER-SR.GP THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA No. 2027 of 2017 ..3.. ## **ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.** --------------------------------------------------------------------------- WA No. 2027 of 2017 [ _arising out of the impugned judgment dated 19.06.2017 in WP(C) No.19941/2007_ ] ---------------------------------------------------------- Dated this the 13[th] day of June, 2022 ## **JUDGMENT** ## ALEXANDER THOMAS, J. The afore captioned writ appeal is directed against the impugned judgment dated 19.06.2017 rendered by the learned Single Judge, dismissing the instant writ petition, WP(C) No.19941/2007. 2. The sole appellant herein is the sole petitioner in the writ petition. The respondents herein are the respondents in the writ petition. However, the 6[th] respondent (the Kerala Co-operative Central Agricultural Development Bank Ltd.) has been deleted from the respondent array at the appellant's risk as per order dated WA No. 2027 of 2017 ..4.. 15.11.2017 rendered in IA No.1379/2017 in the above writ appeal. 3. Heard Sri.George Mathew, learned Advocate instructed and ably assisted by Sri.Pranoy Kottaram, learned counsel appearing for the appellant/writ petitioner; Smt.Princy Xavier, learned Senior Government Pleader appearing for official respondents 1 to 3; Smt.Bindumol Joseph, learned counsel appearing for respondents 4 & 5; and Sri.Jayanandan Madayi Puthiyaveettil, learned Advocate appearing for the 7[th] respondent. 4. The appellant/writ petitioner filed instant writ petition with the following prayers; _“i) issue a writ of mandamus or any other appropriate writs, set asiding Exhibit P-5 sale certificate dated 13.03.1995 registered as document no.1128 of 1995 of SRO Peravoor executed by respondent no.3 in favor of respondent no.7._ _ii) issue such other orders as are deemed fit and proper in the circumstances of the case.”_ 5. The case set up in the instant writ proceedings is, particularly, as follows:- The appellant/writ petitioner is the member of the respondent bank, viz., the Thalassery Primary Co-operative Agricultural Development Bank Ltd., which, in turn, is a Co-operative Society regulated by the provisions contained in WA No. 2027 of 2017 ..5.. the special enactment, viz., the Kerala State Co-operative (Agricultural & Rural Development Bank) Act, 1984 (for short, “the KSCARD Bank Act”) as well as the provisions of the general enactment covering the field, viz., the Kerala Co-operative Societies Act, 1969 (for short, “the KCS Act”). 6. The respondent bank is a Primary Co-operative Agricultural Development Bank as understood in Section 2(h) of the above said special enactment, viz., the KSCARD Bank Act. It appears that the appellant had applied for loan from the respondent bank for an amount of ₹13,000/- and a loan amount of ₹10,400/- was sanctioned by the respondent bank after the appellant had mortgaged his property coming to an extent of 2.5 acres in favour of the bank. The said loan has been sanctioned in instalments on 24.07.1981. The appellant is said to have availed the said loan in instalments as shown in Ext.P1 and as per the agreement, the appellant was liable to repay the said loan amount in 15 yearly instalments and not in equal monthly instalments and he has paid some instalments for the period from 1982 to 1987, starting from 02.03.1982. It appears from Ext.P1 that the loan WA No. 2027 of 2017 ..6.. amount released in yearly instalments for the period from 1982 to 85 is a total amount of ₹ 6,300/- and that, the total amount so repaid by the appellant is ₹3,938/-. Further, the appellant has not cleared any instalment after 11.04.1987. The appellant would say that he was under the _bona fide_ belief that he would be offered a debt relief scheme and that the liability would be waived off. 7. The pleadings in the counter affidavit filed by the 4[th] respondent bank in the writ petition would reveal that in view of the consistent defaults, the bank was constrained to issue registered notice with acknowledgment due in the correct address of the appellant on 09.11.1993, directing him to pay the defaulted amount within two months of the receipt of the notice. That, the appellant has received that notice on 19.11.1993 and that he has put his signature noting the date. Further, the respondent statutory sale officer has issued Ext.R4(c) registered demand notice on 24.01.1994, demanding that the appellant should immediately pay ₹9,744/- with interest, costs and expenses and that, the said notice has also been accepted by the appellant on 26.02.1994. That, since the appellant had not responded to the above said notices, the WA No. 2027 of 2017 ..7.. respondent bank was compelled to proceed with the sale of the secured assets under Section 19 of the KSCARD Bank Act to recover the due amounts. That, accordingly, the respondent bank had decided to put the security property for sale and issued a sale proclamation as per Annex.R4(d) dated 21.03.1994. The appellant/writ petitioner had refused to accept the said proclamation notice as evident from Annex.R4(e) postal receipt. Hence, the respondent bank was compelled to publish the above said sale proclamation notice on 01.04.1994 and the sale proclamation was also duly affixed on the notice board of the Office of the respondent Joint Registrar of Co-operative Societies, Kottiyoor; the Village Office, Kottiyoor; and the Taluk Office, Thalassery etc. The appellant has specifically admitted his pleadings both in the civil suit as well as in the writ petition that he had seen the above said sale proclamation notice published in the Mathrubhoomi Daily dated 01.04.1994. According to the respondent bank, the proclamation was also followed by beat of “tom tom”, which was done in the Kottiyoor Village on 14.05.1994 and 15.05.1994, and the sale of the property was scheduled on WA No. 2027 of 2017 ..8.. 16.05.1994. The specific case of the appellant was that after coming to know of the newspaper publication on 01.04.1994, he immediately turned up before the respondent bank and paid ₹3,000/- as evident from Ext.P2 receipt dated 23.04.1994, but, he has no case that he has paid the balance due amounts. 8. The sale could not be conducted on 16.05.1994 and the same was adjourned to 20.05.1994 as there were no bidders to participate in the auction. Later, the respondent special sale officer had ordered to adjourn the sale to 20.05.1994 as per Ext.R4(f). Later, Ext.R4(g) fresh sale proclamation was issued on 16.05.1994. Ultimately, the auction for sale of the mortgaged property coming to an extent of 2.4 acres out of the 2.5 acres was held on 20.05.1994 at 3.10 pm at the Village Office, Kottiyoor (the respondent bank would state that the residential house of the appellant and the land appended thereto coming to an extent of 10 cents, which is the part of the 2.5 acres, were exempted from sale and that a total extent of 2.4 acres was put to sale). The sale auction was conducted by the sale officer in the presence of the Village Officer, Kottiyoor and the Recovery Officer authorized by WA No. 2027 of 2017 ..9.. the respondent bank. According to the respondent bank, the sale was conducted as per the provisions of law. Two persons, viz., Sri.P.P.Sasidharan (the 7[th] respondent) and one Sri.Kuriakose Makkolin, have participated in the auction and the bid was knocked down by the 7[th] respondent for ₹12,000/-. Ext.R4(h) is the auction dairy dated 20.05.1994 maintained by the respondent sale officer, in which both the 7[th] respondent herein, the above said Sri.Kuriakose Makkolin and two witnesses thereto have affixed their signature. The 7[th] respondent, who was the purchaser, deposited 15% of the amount forthwith on 20.05.1994 and the balance amount was remitted by him on 03.06.1994. Further that, thereafter, the sale officer issued Ext.R4(i) notice dated 20.05.1994 by registered post to the appellant informing about the sale auction of the property conducted on 20.05.1994 from the Kottiyoor Village Office. Further that, by Ext.R4(i) notice dated 20.05.1994, the respondent bank had given the appellant another opportunity to deposit the amount with interest, other expenses and 5% of the bid amount within 30 days to avoid confirmation of sale and it was notified therein that in case of failure to deposit that amount, the WA No. 2027 of 2017 ..10.. sale would be confirmed. Ext.R4(j) is the postal endorsement, which would show that the above said Ext.R4(i) registered notice sent to the appellant was served on him on 22.05.1994, 24.05.1994, 31.05.1994 & 02.06.1994, but he had not claimed the said registered notice and the same was, thus, returned to the sender (respondent bank). 9. The appellant had also not deposited the sale amount along with 5% interest thereon as conceived in Section 21(1) of the KSCARD Act r/w Rule 8 of the Rules, 1986, within 30 days from the date of the sale conducted on 20.05.1994. Hence, the respondent notified Registrar had no option, but to confirm the sale on 15.12.1994 as mandated in Section 21(3) of the KSCARD Act. Purchase Certificate in favour of the 7[th] respondent (the auction purchaser) was also issued in terms of Section 23 of the KSCARD Act as per Ext.P5/Ext.R7(b) dated 14.03.1995. After the confirmation of the sale on 15.12.1994 and before the issuance of Ext.P5 purchase certificate on 14.03.1995, the appellant had moved Ext.P3 application on 23.01.1995 before the respondent bank to set aside the sale and he had also offered a demand draft of ₹7,384/-, WA No. 2027 of 2017 ..11.. which was the outstanding defaulted dues. It appears that since the appellant had not filed the requisite application to set aside the sale along with the requisite deposit of sale money and 5% interest thereon within 30 days of the sale as conceived in Section 21(1) and as Ext.P3 application was not given to the competent authority, viz., the respondent sale officer, and that too, within the period of limitation, the said Ext.P3 application was not acted upon. The subject sale property was mutated in favour of the 7[th] respondent and land tax receipt was also accepted by the competent revenue authority as evident from Annexures R7(c) to R7(f) documents produced along with the counter affidavit of the 7[th] respondent. 10. Thereafter, the appellant has filed a civil suit as OS No.101/1995 before the Munsiff Court, Koothuparamba on 24.03.1995, in which the bank, the sale officer, the auction purchaser etc., have been impleaded as defendants and the prayer sought for in the said suit was for permanent prohibitory injunction to restrain the respondents therein from issuing the sale certificate. Later, the appellant amended the prayers in the above suit and incorporated a prayer for declaration that the impugned WA No. 2027 of 2017 ..12.. sale certificate is null and void and also claimed damages of ₹8,73,000/-. In view of the change in pecuniary jurisdiction, the suit was transferred from the Munsiff Court to the Sub Court, Thalassery. It appears that the appellant had then filed a proper application. Later, the suit has been renumbered as OS No.45/2003 on the file of the Sub Court, Thalassery. The defendants entered appearance and seriously contested the suit by filing their written statements. The issues framed by the Sub Court, as evident from Ext.P6 judgment, are as follows; - “1. _Whether the document No.1128/95 dated 14.03.1995 of S.R.O. Peravoor is to be declared null and void for the reason stated in the plaint?_ _2. Whether the alternative relief for recovery of Rs.8,73,000/- as compensation from the defendants is allowable?_ _3. Whether the permanent prohibitory injunction sought for is allowable?_ _4. Reliefs and costs._ ” 11. The suit was ultimately dismissed by the Sub Court, Thalassery as per Ext.P6 judgment rendered on 13.01.2006. This resulted in Ext.R7(a) decree relating to the dismissal of the suit rendered on 13.01.2006. A reading of Ext.P6 judgment would WA No. 2027 of 2017 ..13.. reveal that the case set up by the appellant/plaintiff therein was that the subject property was having an extent of 4.82 acres. However, a reading of the judgment would show that different extents of land are mentioned in the averments therein. For instance, in one part of the judgment, it is referred that the case of the plaintiff was that the total extent of land is about 3 acres and somewhere, it is shown as 2.4 acres and even as 4.82 acres. It is common ground that the total extent of the property covered by the mortgage deed is only 2.50 acres. From the pleadings, it appears that the appellant has paid land tax under the Kerala Land Tax Act and the Kerala Land Tax Rules only for an extent of 2.50 acres and he has not paid land tax for the balance land out of the total claimed extent of 4.82 acres. Based on the pleadings of the defendants, more particularly, that of the defendant bank as well as the defendant departmental authorities, the civil court has found that registered notices have been sent to the appellant in terms of the provisions contained in the above KSCARD Act and the Rules framed thereunder for putting the secured assets for sale as permitted by the said special enactment. Incidentally, some of WA No. 2027 of 2017 ..14.. the defendants have raised a plea that the suit was not maintainable in view of the bar contained in Section 69(1) r/w Section 100 of the KCS Act. The civil court has referred to the said contentions of the defendants regarding the plea of “lack of jurisdiction” by the civil court, but no issue has been framed regarding the alleged “lack of jurisdiction” of the civil court in view of Section 69(1) of the KCS Act r/w Section 100 of the KCS Act. So also, no decision has been rendered by the civil court on the said issue of “lack of jurisdiction” of the civil court. So, in other words, both the appellant/plaintiff and the civil court proceeded on the premise that the civil court has jurisdiction in the matter and ultimately, dismissed the suit on merits. 12. It is common ground that the appellant herein after being subjected to the adverse verdict of the civil court, as per Ext.P6 judgment and Ext.R7(a) decree, has not chosen to file an appeal by way of an appeal suit to challenge the above said verdict of the civil court in the manner known to law. On the other hand, the approach made by the appellant/plaintiff is that even according to him, the civil court has no jurisdiction in view of the afore said WA No. 2027 of 2017 ..15.. statutory bar and that, therefore, he can agitate these issues in the present writ proceedings. The writ proceedings has been filed on 28.06.2007, which is after the delay of more than 1½ years after the rendering of Ext.P6 judgment of dismissal of the suit. At the outset, we have to hold that since both the appellant/plaintiff and the civil court have proceeded on the premise that the civil court has jurisdiction and what has been rendered as per Ext.P6 judgment and Ext.R7(a) decree is on merits and not in any manner related to the alleged “lack of jurisdiction” and the appellant has not filed any appeal to challenge the above said decree of the civil court in the manner known to law, it will not be right and proper for the appellant to raise these issues in the present writ proceedings after being subjected to an adverse verdict by the civil court. On this ground alone, the writ proceedings is liable to be dismissed. On that crucial aspect of the matter, we are in full agreement with the finding of the learned Single Judge, as per the impugned judgment, that the doctrine of comity or amity of courts requires a court not to pass an order or decision, which would be in conflict with the another order passed by a competent court of law WA No. 2027 of 2017 ..16.. as held by the Apex Court in decision as in _**India Household & Healthcare Ltd.**_ v. _**LG Household & Healthcare Ltd.**_ [(2007) 5 SCC 510] (See paras 16 & 19). 13. However, since the writ petition has been admitted and the learned Single Judge has also considered the issues on merits, we would also proceed to consider the crucial aspects on the merits of the case. One of the contentions urged by the appellant is that even according to the respondent bank, Ext.R4(c) registered demand notice dated 24.01.1994 was received by the appellant only on 26.02.1994. Further that, the respondent bank has admitted that thereafter, they have issued Ext.R4(d) sale proclamation notice on 21.03.1994. In that regard, learned counsel for the appellant would argue that Section 19(2)(c) of the special enactment would mandate that there has to be default of payments consecutively for a period of two months after service of notice. Further that, it is also admitted by the respondent bank that the appellant had, by then, paid ₹3,000/- as per Ext.P2 on 23.04.1994, and that, therefore, the mandatory provision contained in Section 19(2)(c) has been violated inasmuch as the minimum period of two WA No. 2027 of 2017 ..17.. months after the issuance of Ext.R4(c) notice before the issuance of the sale proclamation notice has not been observed in the instant case. 14. To this, Smt.Bindumol Joseph learned counsel for the respondent bank, would state that para 10 of the counter affidavit of the respondent bank would clearly show that prior to Ext.R4(c) demand notice dated 24.01.1994, initially, the bank had issued another registered demand notice to the appellant on 09.11.1993 by registered post with acknowledgment due, directing him to pay the defaulted amount within two months of the receipt of notice. The appellant received the said notice on 19.11.1993 and he put his signature noting the date and it is thereafter that the respondent sale officer has issued the subsequent registered demand notice on 24.01.1994. These pleadings of the respondent bank in para 10 of the counter affidavit has not been denied by the appellant. That apart, on being queried to Smt.Bindumol Joseph, learned counsel for the respondent bank, has made available photocopy of the said notices dated 09.11.1993 and the postal acknowledgment of receipt thereto for our perusal. In view of these aspects, the aforesaid WA No. 2027 of 2017 ..18.. contention based on alleged violation of Section 19(2)(c) of the KSCARD Act would fail and the same would stand repelled. 15. Yet another contention urged by the appellant is that in view of Section 20(2) of the KSCARD Act, the sale should be by public auction, which is to be conducted in the Village where the subject property lies. In the instant case, the subject property lies in Kappad Village, whereas, admittedly, the impugned sale auction was conducted by the respondents in Kottiyoor Village. Hence, there is infraction of Section 20(3) of the KSCARD Act. 16. The learned counsel for the appellant would rely on Ext.R4(a) loan application submitted by him and approved by the bank that the subject property lies in Thalassery Taluk, Kappad Village in Poikamala in Sy.No.1148 having an extent of 2.50 acres. To this, Smt.Bindumol Joseph, learned counsel appearing for the respondent bank, would point out that Ext.R7(a) decree of the civil court would clearly show that even as per the schedule of the subject property shown by none other than the appellant/plaintiff in the suit , the property is in Kannur District, Thalassery Taluk, Kappad Amsom, Kappad Desom, and that even going by the plaint WA No. 2027 of 2017 ..19.. schedule shown by the appellant/plaintiff in the suit, Kappad is the name of the amsom and desom. Further that, Ext.P5/R7(b) purchase certificate of the subject property would show that the property is in Thalassery Taluk, Kottiyoor Amsom, Kottiyoor Desom and Kottiyoor Panchayat. Further that, Ext.R7(c) & R7(d) revenue records would show that the subject property is in Kottiyoor Village, Thalassery Taluk. So, it is seen that the name of the Village is shown divergently in different documents. Such a plea has not been taken by the appellant before the civil court. Since the name of the Kottiyoor Village is also shown in some other documents, we are not impressed with the above said argument of the appellant and therefore, the said plea that the sale was not conducted in the revenue village concerned cannot be accepted by us, that too, after this long distance of time. 17. Yet another contention urged by the appellant is that pursuant to the directions issued in the writ petition, a Police Officer of the Vigilance and Anti-Corruption Bureau had conducted an enquiry on the plea of fraud alleged by the appellant in the conduct of the above sale and that the said Vigilance Officer has WA No. 2027 of 2017 ..20.. filed a report along with a memo dated 13.08.2013 of the Government Pleader and that serious illegality and fraud could be disclosed by the said report. Further that, the learned Single Judge in the impugned judgment has not considered the said crucial aspects. 18. We have heard both sides and also anxiously considered the matters arising out of the said report prepared by the Vigilance Officer. A reading of the said report of the Vigilance Officer would indicate that the enquiry thereon was conducted by an officer of the rank of Circle Inspector of Police of the Vigilance and Anti-Corruption Bureau, Kannur. It is stated therein that the total extent of the mortgaged property is 2.5 acres of land in Sy.No.1148 of Kappad amsom of Thalassery Taluk. That, in the loan application, the appellant has stated that the value of the property was worth ₹30,000/- and that at that time, the property was inspected and valued by the bank officials for ₹25,000/- and they had recommended 50% of the pledged value, i.e., ₹12,500/- as loan. Further, it is stated that the sketch of the land as produced by the appellant at the time of the loan application is different from WA No. 2027 of 2017 ..21.. the land sketch relied on by the appellant before the civil court and that, the properties covered under the two sketches appeared to be entirely different and the neighbouring plots are also different. Further that, the appellant has remitted land tax only for 2.5 acres of land. The officer has mentioned therein that it is not sure if any surplus land of Government is encroached or not and the same can be found only after a detailed survey. Further, the Vigilance officer has stated that the registered demand notices have been duly sent to the appellant and those procedures have been strictly followed. Further that, 10 cents of the mortgaged land and the residential house of the appellant were exempted and 2.4 acres of land was sold to the 7[th] respondent herein for ₹12,000/- by the bank on 20.05.1994. Further that, the auction dairy would show that two persons have participated in the auction and that the name of the second person participated in the auction was Sri.Kuriakose Makkolin and that when the Vigilance Officer has questioned him, he stated that he never participated in any auction. Further that, the land was valued at Rs.25,000/- at the time of giving of the loan in 1981 by the bank, but, later, it was sold only for ₹12,500/- after WA No. 2027 of 2017 ..22.. 13 years and that the market value of the land in Kerala has not generally come down. More crucially that, though valuation of the land is done at the time of scrutiny of the loan application, no such valuation was done at the time of the impugned sale of the land. That, during that time, the fair value was also not published and that all procedures were seen taken in a hasty manner. Further, it is stated that the local enquiry has revealed that the land is in the border of a forest and no sufficient access was available at that time and the value would have been considerably less in any bank auction. Hence, the Vigilance Officer concluded in his equiry that _prima facie,_ there appears to be some irregularities in the auction procedure. However, it is stated that the land is situated in a very interior place in Kannur District. A reading of the said report would indicate that all the major statutory procedures by way of registered demand notices, sale proclamation etc., as mandated in the Rules framed under the KSCARD Act have been strictly observed by the respondent bank. Three irregularities were noted; firstly, that no land valuation was done before the conduct of the sale; secondly, that only two participants have taken part in the WA No. 2027 of 2017 ..23.. auction; and thirdly, that one among the two participants has stated before the enquiry officer that he has not, in fact, participated in the auction. We will take up the last of the objections. 19. At the outset, we have to hold that the above said finding by the Vigilance Officer is only merely on the basis of unilateral questioning by him of the said person concerned. The said person has not been subjected to any cross-examination in any judicial process. The appellant has not taken up this plea when the matter was elaborately tried by the trial court. The entire documents related to sale could have been easily called for by the appellant at the time when the matter was tried in the civil court and he could have easily adduced the evidence by calling the said Sri.Kuriakose Makkolin as a witness. If that be so, the respondent bank also could have got a reasonable opportunity to cross-examine the said witness. The trial court could have then ascertained as to whether Sri.Kuriakose Makkolin has any such case and if so, whether he has withstood cross-examination effectively and also regarding his demeanour and credibility. This WA No. 2027 of 2017 ..24.. we say so as Ext.R4(h) is the auction diary maintained by the statutory special officer, in which both the auction participants, viz., the 7[th] respondent and Sri.Kuriakose Makkolin, and the witnesses thereto have signed. The said document is a statutory document kept in the course of compliance of the provisions of the above said KSCARD Act and the Rules framed thereunder. Therefore, merely because Sri.Kuriakose Makkolin has allegedly stated before the Circle inspector of Police in the vigilance enquiry conducted in 2013 that he has not participated in the auction sale held in 1994, is no ground for a writ court to believe and act upon the same. When valuable opportunity was available to the plaintiff to lead evidence in that regard, he has not chosen to do so. Now, he cannot take advantage merely on the basis of a vigilance enquiry conducted by a Police Officer, and that too, in the year 2013, which is long after the conduct of sale in the year, 1994. The plea of fraud raised by the appellant based on the alleged non participation of Sri.Kuriakose Makkolin will have to be repelled by us and we do so. The second irregularity alleged is that two persons alone have participated in the auction sale. The pleadings and materials would WA No. 2027 of 2017 ..25.. show that the auction was repeatedly notified and postponed. 20. Smt.Bindumol Jose, learned counsel appearing for the respondent bank, would point out that Ext.R4(d) would clearly show that the subject property is unsurveyed land lying in Poikamala. Further that, even the Vigilance Officer, on whose report the appellant would rely on, would state that the property is lying very near to the forest and in the remote interior part of Kannur with no access. Hence, after repeated attempts, the auction had to be conducted and in view of the lack of demand for the property, only two persons are participated and that itself cannot be a ground for holding that there is any material irregularity or that there is any fraud. After hearing both sides, we would broadly accept the said plea of the learned counsel for the respondent bank. Therefore, the second plea of higher irregularity, inasmuch as only two persons have participated in the auction sale, cannot be countenanced by us to upset the entire proceedings. 21. Further objection raised by the appellant is under Rule 11 of the Rules framed under the KSCARD Act, which would mandate that the sale of the mortgaged property is to be WA No. 2027 of 2017 ..26.. proportionate to the arrears due etc. That, the Division Bench of this Court in the case in _**Thambi**_ v. _**Kunnathunad Taluk Primary Co-operative Agricultural & Rural Development Bank Ltd.**_ [2012 (3) KLT 628 (DB)] has held, more particularly in para 4 thereof, that recovery proceedings by sale under the afore said KSCARD Act should not be made in a destructive manner and only a minimum extent of land, that is required to settle the liability, alone should be sold. Hence, the appellant would argue that valuation of the land at the time of the sale was necessary, which has not been done, and therefore, there is patent violation of the rule under the Rules. 22. At the outset, we have to note that such a plea regarding the non conduct of the valuation was not raised by the appellant before the civil court. The said vital aspect is alleged in the report of the Vigilance Officer. Even if we assume that no valuation was done, it is seen that, that aspect of the matter is the only main irregularity that the appellant can point out. The suit has been dismissed and no appeal has been filed thereon. The sale was conducted in 1994. The writ petition itself was filed in the year WA No. 2027 of 2017 ..27.. 2007. If we assume that Rule 11 has been violated, but, for that, all the material requirements of the Act and Rules have been technically complied with by the respondent bank in the conduct of sale, will it be right and proper for us, that too, sitting as intra court appeal, to disturb the entire sale proceedings at this late stage solely on this ground? 23. Going by the provisions, the sale was duly effected and despite notice, the appellant has never filed his application to set aside the sale along with deposit of requisite money within the statutory time limit of 30 days. The appellant had not even bother to file objection before the notified Registrar, prior to the sale confirmation. The sale was thereafter confirmed by the notified Registrar in terms of the Act. It is long thereafter the appellant has filed an application to set aside the sale and that too, beyond the period of limitation and before the wrong authority. After confirmation of the sale, the property has been duly delivered to the auction purchaser and sale certificate has also been issued to him and the property has been mutated. The entire process in favour of the 7[th] respondent has been concluded. It is in view of WA No. 2027 of 2017 ..28.. these aspects that it has been mandated in Section 27 of the KSCARD Bank Act that the title of the purchaser shall not be impeached on the ground of irregularity, and that the aggrieved person can have only remedy to claim damages against the bank concerned. 24. In fact, the appellant has amended the suit and has claimed for damages. The said plea has been repelled by the civil court after elaborate trial. Since this point was never raised, it appears from the reading of the above judgment that the afore said argument has not been raised before the learned Single Judge. Such a plea regarding violation of Rule 11 due to the non conduct of the valuation has not been pleaded in the writ petition at least by way of an additional affidavit filed by the appellant. The appellant is only relying on the report under a vigilance enquiry conducted by the Circle Inspector of Police, the Vigilance and Anti-Corruption Bureau. 25. Even going by the Advocate Commissioner's report, on which the appellant would place reliance, the valuation of land is shown as ₹600/- per cent. The appellant would claim that the land WA No. 2027 of 2017 ..29.. sold would fetch at least ₹8.3 lakhs at the time of sale in the year 1994. It appears that going by the pleadings in the civil suit, the appellant has quantified the value as ₹8.3 lakhs assuming that the total extent of land is 4.82 acres. The total extent of sold land is only 2.4 acres. True that the said land has been sold in auction only for ₹12,500/-. Since these aspects had not been pleaded in the writ appellant and these factors had not been addressed before the learned Single Judge, it will not be legally correct for us to enter into this area and that too, in intra court appeal. The writ proceedings itself may not be maintainable in view of the adverse verdicts suffered by the appellant in the suit filed by him, wherein he himself urged that the civil court alone has jurisdiction. 26. Lastly, learned counsel appearing for the appellant would place reliance on judgment of Division Bench of this Court rendered in the case in _**Ratheesh**_ v. _**Debt Recovery Tribunal (Kerala & Lakshdweep)**_ [2019 (1) KLT 792 (DB)], which is in relation to a SARFAESI proceedings. Smt.Bindumol Joseph, learned counsel for the respondent bank, would urge that the facts in _**Ratheesh**_ 's case [2019 (1) KLT 792] _(supra)_ are entirely WA No. 2027 of 2017 ..30.. different and separate from the present case and further that, Section 19 of the KSCARD Bank Act empowers power of sale of property charged without intervention of any court or tribunal. Further, such a plea has also not been urged before the learned Single Judge in the writ petition. 27. In the light of these aspects, we are not prepared to countenance the said plea of the appellant as well. True that the property having an extent of 2.4 acres was sold only for ₹12,500/-. The appellant should have been vigilant to raise all such crucial aspects before the correct forum at the appropriate time. The appellant himself had chosen the civil court as the forum on the contention that the bar under Section 100 of the KCS Act would not apply and that the civil court alone has jurisdiction. He has not challenged the verdict of the civil court and now he would contend that the civil court has no jurisdiction and therefore, the writ remedy is maintainable. At this distance of time, it will not be justifiable on our part to intervene in the matter sitting as an intra court appeal. The discretion exercised by the learned Single Judge, dismissing the writ petition cannot be said to be unreasonable or WA No. 2027 of 2017 **==> picture [24 x 9] intentionally omitted <==** perverse. It is certainly a reasonable and possible view of the matter. For all these reasons, we are not in a position to interfere with the matter. The appeal fails and therefore, the same will stand dismissed. **Sd/-** **ALEXANDER THOMAS JUDGE** **Sd/-** **SHOBA ANNAMMA EAPEN JUDGE** bka/-