Puthiyaveettil Varghese v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 19TH DAY OF JUNE 2017/29TH JYAISHTA, 1939** **WP(C).No. 19941 of 2007 (Y) ----------------------------** ## **PETITIONER(S): -------------** **PUTHIYAVEETTIL VARGHESE, S/O OUSEPH, AGED 54 YEARS, AGRICULTURIST, RESIDING AT POYYAMALA, KAPPAD AMSOM P.O. CHUNGAKUNNU, KANNUR DIST.** ## **BY ADV. SRI.K.P.HAREENDRAN** ## **RESPONDENT(S): --------------** **1. STATE OF KERALA, REP. BY SECRETARY, CO-OPERATIVE DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE JOINT REGISTRAR, CO-OPERATIVE SOCIETIES, KANNUR.** **3. THE SPECIAL SALE OFFICER, THALASSERY PRIMARY CO-OPERATIVE AGRICULTURAL DEVELOPMENT BANK LIMITED, NO.F 1030, HEAD OFFICE, THALASSERY P.O., THALASSERY.** **4. THE SECRETARY, THALASSERY PRIMARY CO-OPERATIVE AGRICULTURAL DEVELOPMENT BANK LIMITED, NO.F 1030, HEAD OFFICE, THALASSERY P.O., THALASSERY.** **EL** **WP(C).No. 19941 of 2007 (Y) ----------------------------** **5. THE BRANCH MANAGER, THALASSERY PRIMARY CO-OPERATIVE AGRICULTURAL DEVELOPMENT BANK LIMITED, THUNDIYIL BRANCH, THUNDIYIL, KANNUR DISTRICT.** **6. MANAGING DIRECTOR, THE KERALA CO-OPERATIVE CENTRAL AGRICULTURAL DEVELOPMENT BANK LIMITED, TRIVANDRUM.** **7. PARAMBATH POYIL SASEENDRAN, S/O.P.P.NANU, 45 YEARS, CHOCKLI AMSOM, MENAPRAM DESOM, THALASSERY TALUK.** **R1 & R2 BY SR. GOVERNMENT PLEADER** **SRI. P.M. MANOJ** **R4 & R5 BY ADVS. SRI.P.V.DIPU** **SRI.P.V.SURENDRANATH** **R7 BY ADVS. SRI.JAYANANDAN MADAYI** **PUTHIYAVEETTIL SRI.K.V.PAVITHRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 19941 of 2007 (Y)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **----------------------P1 COPY OF THE PASS BOOK OF TELLICHERRY COOPERATIVE LAND MORTGAGE BANK LTD.** - **P2 COPY OF THE RECEIPT OF PAYMENT OF RS.23,000/P3 COPY OF THE PETITION SUBMITTED BY THE PETITIONER** - **P4 COPY OF THE PAY ORDER FOR RS.7,384/-** - **P5 COPY OF THE SALE CERTIFICATE** - **P6 COPY OF THE JUDGEMENT IN OS.45/2003 OF SUB COURT, THALASSERY** - **P7 COPY OF THE DISCHARGE SUMMARY OF PARIYARAM MEDICAL COLLEGE, HOSPITAL** - **P8 COPY OF THE PLAN OF THE PROPERTY BELONGING TO THE PETITIONER** **RESPONDENT(S)' EXHIBITS** - **-----------------------** - **R4(A) A TRUE COPY OF LAN APPLICATION DATED NIL SUBMITTED BY THE PETITIONER** - **R4(AA) TRANSLATION OF EXT.R4(A)** - **R4(B) A TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER KAPPAD DATED NIL WITH RESPECT OT THE PROPERTY MORTGAGED** - **R4(C) A TRUE COPY OF THE ACKNOWLEDGEMENT CARD EVIDENCING THE RECEIPT OF NOTICE BY THE PETITIONER** - **R4(CC) TRANSLATION OF EXT.R4(C)** - **R4(D) A TRUE COPY OF THE SALE PROCLAMATION DATED 21.3.94 WITH RESPECT TO THE PETITIONER'S PROPERTY** - **R4(DD) TRANSLATION OF EXT.R4(D)** - **R4(E) A TRUE COPY OF THE POSTAL RECEIPT WITH THE POSTAL ENDORSEMENT REFUSED RETURNED TO SENDER** - **R4(EE) TRANSLATION OF EXT.R4(E)** **WP(C).No. 19941 of 2007 (Y) ----------------------------** |**P4(F)**|**A TRUE COPY OF THE PROCEEDINGS OF THE SPECIAL**| |---|---| ||**SALE OFFICER**| |**R4(FF)**|**TRANSLATION OF EXT.R4(F)**| |**R4(G)**|**A TRUE COPY OF THE SALE PROCLAMATION DATED**| ||**16.05.1994**| |**R4(GG)**|**TRANSLATION OF EXT.R4(G)**| |**R4(H)**|**A TRUE COPY OF THE AUCTION DAIRY DATED**| ||**20.05.1994**| |**R4(HH)**|**TRANSLATION OF EXT.R4(H)**| |**R4(I)**|**A TRUE COPY OF THE NOTICE DATED 20.05.1994**| ||**ISSUED BY THE SALE OFFICER**| |**R4(II)**|**TRANSLATION OF EXT.R4(I)**| |**R4(J)**|**A TRUE COPY OF THE POSTAL COVER ALONG WITH THE**| ||**ENDORSEMENT OF THE POSTAL AUTHORITIES**| ||**'RETURN TO SENDER'**| |**R4(JJ)**|**TRANSLATION OF EXT.R4(J)**| |**R7(A)**|**TRUE COPY OF THE DECREE IN OS.45/2003 BEFORE**| ||**THE SUBORDINATE JUDGE, THALASSERY**| |**R7(B)**|**TRUE COPY OF THE SALES CERTIFICATE ISSUED BY**| ||**JOINT REGISTER (GENERAL) CO-OPERATION**| |**R7(C)**|**REVENUE RECEIPT DT.27.4.1995 ISSUED BY VILLAGE**| ||**OFFICER KOTTIYOOR IN FAVOUR OF THE 7TH**| ||**RESPONDENT**| |**R7(D)**|**REVENUE RECEIPT DT.28.12.2006 ISSUED BY VILLAGE**| ||**OFFICER KOTTIYOOR IN FAVOUR OF THE 7TH**| ||**RESPONDENT**| |**R7(E)**|**TRANSLATION OF EXT.R7(C) REVENUE RECEIPT**| ||**DT.27.04.1995**| |**R7(F)**|**TRANSLATION OF EXT.R7(D) REVENUE RECEIPT**| ||**DT.28.12.2006**| ||**TRUE COPY**| **P.S. TO JUDGE** **EL** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.19941 of 2007 ----------------------------------------------Dated this the 19[th] day of June, 2017** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P5 sale certificate registered as document No.1128 of 1995 of SRO, Peravoor executed by respondent No.3 in favour of respondent No.7. Material facts for the disposal of the writ petition are as follows: 2. Petitioner is a member of Thalassery Co-operative Land Mortgage Bank Ltd., later re-named as Thalassery Primary Co-operative Agricultural Development Bank Ltd. Petitioner availed a loan of Rs.6,300/- from the Thundiyil branch of the Bank for cultivating pepper-vine in his property having allegedly an extent of 4 acres and 82 cents in Survey No.1148/PT of Kappad amsom, desom. The loan was availed by mortgaging the aforesaid property in favour of the Bank. According to the petitioner, he remitted Rs.3,938-93 to the bank by 6 installments. In the 1st week of April, 1994, petitioner happened to see a newspaper advertisement requiring to pay the loan amount. According to the petitioner, 2 **W.P.(C) No.19941 of 2007** immediately, he rushed to the bank and remitted Rs.3,000/and requested some time for remitting the balance amount. On 19.01.1995, an officer of the bank came to the petitioner's house and represented that the property is sold in auction. It is the contention of the petitioner that the property belonging to the petitioner is worth Rs.8,73,000/-, which was sold in auction for an amount of Rs.12,000/-, and the Special Sale Officer of the bank, viz., 3rd respondent, executed sale certificate in favour of the auction purchaser, respondent No.7. That apart, it is contended that, a large extent of property is sold in auction for realizing an amount of Rs.7,384/-, and therefore, the auction sale of the property belonging to the petitioner is illegal and the bank authorities have played fraud in conducting the auction sale. 3. Thereupon, petitioner has filed O.S.No.45 of 2003 before the Subordinate Judge's Court, Thalassery, which was dismissed as per Ext.P6 judgment on 13.01.2006. According to the petitioner, the suit was dismissed for want of jurisdiction to entertain the same. It is accordingly that petitioner has filed this writ petition on 28.06.2007, i.e. almost 1 ½ years after the dismissal of the suit. 3 **W.P.(C) No.19941 of 2007** 4. First respondent has filed a counter affidavit disputing the claims and demands raised by the petitioner and supporting the sale conducted. It is stated thereunder that all formalities as prescribed under the Kerala State Co-operative (Agricultural and Rural Development Bank) Act, 1984 were undertaken by the respondents before conducting the sale. As per the provisions of the aforesaid Act, in the execution petition, action was initiated as per E.P.No.104 of 1995. It is also stated that a demand notice as contemplated under Sec.20 of the Act and Rule 8(C) of the Rules, 1986 was sent to the petitioner on 24.01.1994 by registered post, and the petitioner has acknowledged the said letter. However, petitioner did not remit the amount due to the Bank. Therefore, the 3rd respondent was constrained to take further steps and proclamation notice was published in the Mathrubhumi daily dated 01.04.1994, and the copy of the same was published on the notice board of the 2nd respondent. Admittedly, petitioner remitted at this stage, an amount of Rs.3,000/- on 23.04.1994. The balance amount has not been paid till the date of auction on 20.05.1994 at the Village Office, **W.P.(C) No.19941 of 2007** 4 Kottiyoor. The averment with respect to the information conveyed by the Bank officials that the petitioner need not repay the amount, since there was every likelihood of launching an Agricultural Debt Relief Scheme is not true or correct. 5. That apart, it is contended that, as per Sec.21 of the said Act, petitioner ought to have filed application to set aside the sale within 30 days of auction. However, the petitioner has not taken any steps. But, on 23.01.1995, that is after a lapse of 7 months, petitioner has submitted an application before the 3rd respondent to set aside the sale. The 2nd respondent has confirmed the sale as per order dated 15.12.1994. Pursuant to the sale confirmation, the 3rd respondent registered the deed as per document No.1128/95 of Sub Registrar, Peravoor, and issued to the 7th respondent, purchaser. Therefore, according to the 1st respondent, there is no manner of illegality on the part of the respondents in initiating the proceedings and culminating in finality of the sale proceedings. It is also contended that the 3rd respondent was put in possession of the property, and he is in enjoyment of the same. **W.P.(C) No.19941 of 2007** 5 6. Respondents 4 and 5 have also filed a detailed counter affidavit, wherein the details with respect to the default made by the petitioner, action initiated under the provisions of the Act in question, the procedure adopted and requirement of law are also explained. It is clearly stated therein that notice was provided to the petitioner with respect to the default made by the petitioner, demands were raised thereunder, and thereafter sale notice was provided by registered post, which was returned marking 'refused to accept'. It is also stated therein that, after the sale was conducted, petitioner was issued with a notice to pay the amount in order to avoid confirmation of the sale and the documents relating to all those aspects are produced as Ext.R4 (a) series, Ext.R4(b), Ext.R4(c) series, Ext.R4(d) series, Ext.R4 (e) to (i) series. 7. Seventh respondent has filed a counter affidavit, in which it is contended that the suit filed by the petitioner was elaborately considered by the civil court and the issues raised in this writ petition were subject matter of consideration in the said suit. That apart, it is contended that, this writ petition is filed after one year and 10 months from the passage of the **W.P.(C) No.19941 of 2007** 6 suit decree, which is produced as Ext.R7(a). It is also contended that the procedures were complied with by the statutory authorities in accordance with law. According to the 7th respondent, considering the location of the property, nature of rocky land, want of proper access, distance from main road and high terrain, and scarcity of water in the area are disqualifying factors to the property to fetch any price other than the price secured in the auction. 8. It is also stated, after confirmation of the sale, the Registrar had ordered delivery of the property and the 7th respondent is in possession and is paying land revenue. That apart, it is submitted that, the house of the petitioner and his family is not subject matter of the sale, and therefore, his occupation in the residential building is not at all disturbed. Other contentions are raised with respect to the apprehension of the 7th respondent regarding the maintainability of the writ petition. 9. Heard learned counsel for the petitioner and the respective counsel appearing for the respondents. Perused the documents on record and the entire pleadings put forth by the respective parties. **W.P.(C) No.19941 of 2007** 7 10. The thrust of the contention advanced by learned counsel for the petitioner is with respect to the sale of the entire extent of property to realize a meager amount of Rs.7,000/-. According to the petitioner, the property would have fetched at least an amount of Rs.8,73,000/-, whereas in the auction sale, it was sold for Rs.12,000/-. Therefore, according to the learned counsel, if a portion of the property alone was sold, the amount due to the society would have fetched and instead of apportioning the property in proportion to the amount due, the entire property was put to sale, which is against Rule 85 of the Kerala Co-operative Societies Rules, 1969, and therefore, the entire sale is vitiated. 11. _Per contra_ , learned counsel appearing for the respondents submitted that, so far as the sale of the property is concerned, the entire procedures were complied with by the statutory authorities and all opportunities were provided to the petitioner in order to persuade him to pay the money and save the property. But, in spite of all the efforts made by the statutory authorities, petitioner has not cared to remit the amount due to the 5th respondent Bank. 8 **W.P.(C) No.19941 of 2007** 12. Having evaluated the fact situations discussed above and perusing the documents produced by the rival parties, I am of the considered opinion that, paramount consideration shall be provided to Ext.P6 judgment rendered by the trial court in respect of the very same issue. Even though the petitioner has a contention that the suit was dismissed for want of jurisdiction, on a reading of Ext.P6, especially paragraph 32 of the said judgment, what is discernible is that issues were raised on various aspects including the fraud alleged by the petitioner against the sale of the property. The issues were 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.”_ 13. It is true, one of the aspect considered by the trial court was with respect to the maintainability of the suit. However, categoric findings were entered into by the trial court with respect to all allegations raised in this writ petition, in the 9 **W.P.(C) No.19941 of 2007** suit proceedings. Therefore, the contention advanced by learned counsel for the petitioner that the suit was dismissed for want of jurisdiction cannot be sustained at all. It was clearly found that the sale was conducted by the statutory authority in accordance with the procedures contemplated under law. It is also clearly found therein that the fraud alleged against the statutory authorities is not established by any cogent and reasonable evidence, to arrive at any such conclusion. The issuance of notices, refusal of the same by the petitioner and other notices issued by the respondent statutory authorities have all taken into account by the trial court. Petitioner has not cared to file any appeal against Ext.P6 judgment or Ext.R7(a) decree passed in the said suit. 14. Apart from all these aspects, the sale was conducted by the statutory authority on 20.05.1994. Thereafter, the sale was confirmed on 15.12.1994 and deed was executed as per registered document No.1128 of 1995 of S.R.O., Peravoor. According to the petitioner, he has filed an application to set aside the sale after 7 months. Anyhow, petitioner has chosen to challenge the sale proceedings which has taken place in the year 1994 by filing a suit in the year 10 **W.P.(C) No.19941 of 2007** 2003. Therefore, there is culpable and unpardonable delay on the part of the petitioner. That apart, after the dismissal of the suit, as per Ext.P6 judgment, it again took another one year and ten months for the petitioner to challenge the sale proceedings in this writ petition. 15. Being conscious of these facts, considering all the aspects on record, exercising the jurisdiction conferred on this Court under Article 226 of the Constitution of India, wherein this court is expected to show utmost restraint and confine the findings to the nature of proceedings held by the court below, and the statutory authorities. From the documents produced with respect to the sale proceedings and conduct of the proceedings by the trial court in the suit, I am of the considered opinion that petitioner was provided with sufficient notice in respect of the loan outstanding, the sale proceedings and the post sale proceedings, which were ignored by the petitioner for reasons best known to him. Moreover, sufficient opportunity was provided to conduct the proceedings by the statutory authorities and the court below. Petitioner has adduced evidence, petitioner was heard, entire documents were appreciated by the trial court and has arrived at definite **W.P.(C) No.19941 of 2007** 11 conclusions on the issues raised. The contention advanced by the petitioner that the suit was dismissed for want of jurisdiction is not at all correct, since findings are rendered by the trial court with respect to all the issues raised. 16. That apart, petitioner had a contention in the suit that since fraud is alleged, the alternative remedy provided under the provisions of Kerala Co-operative Societies Act, 1969 can be ignored. Therefore, in that perspective also, the trial court has considered all the relevant aspects put forth by the petitioner and has arrived at clear conclusions that there is no manner of illegality on the part of the statutory authorities in selling off the mortgaged property. If the petitioner was really aggrieved, he ought to have preferred appeal against Ext.P6 judgment and the decree consequent thereto. Moreover, the doctrine of comity or amity requires a court not to pass an order which would be in conflict with another order passed by a competent court of law. [see the judgment of the apex court in ' _**India Household and Health care Ltd. v. L.G. Household and Health care Ltd.**_ ' [(2007) 5 SCC 510]. Even though petitioner has produced certain documents with respect to certain ill-health suffered by the petitioner during the **W.P.(C) No.19941 of 2007** 12 period, disabling the petitioner to approach this Court on an earlier date, the same documents are not at all convincing to pardon the long delay occurred at various point of time to challenge the sale proceedings. 17. Moreover, it is a well-settled proposition of law, when in a transaction where third parties are involved, possession of the property is settled, and the third party is enjoying the same, it is most improper on the part of the court to interfere in such proceedings, after a considerable long delay. Moreover, as on 2007, more than 13 years have elapsed after the sale has taken place. So, I am of the considered opinion that the property might have undergone substantial changes, physically as well as legally. 18. Reckoning all the factual circumstances stated above and considering the law involved in the subject matter, I am of the considered opinion that petitioner has failed to make out any case justifying interference of this Court under Article 226 of the Constitution of India, there being no illegality, arbitrariness or other legal infirmities. 13 **W.P.(C) No.19941 of 2007** Resultantly, writ petition fails, accordingly it is dismissed. Sd/- **SHAJI P. CHALY JUDGE** St/22.06.2017