Sreevidhya S. v. Trivandrum Co-operative Agricultural and Rural Development Bank Ltd and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945** **WP(C) NO. 22821 OF 2023** ## **PETITIONER:** **SREEVIDHYA S., AGED 52 YEARS, W/O SASIDHARAN (LATE), DEVI VIHAR, KANJIRAVILA, MENILAM, PUNCHAKKARI, THIRUVALLOM P.O., THIRUVANANTHAPURAM, KERALA, PIN – 695027** **BY ADVS. RAJESH. K.RAJU MOHAPRASEED MOHAN** ## **RESPONDENTS:** - **1 TRIVANDRUM CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD NO.T-170, REPRESENTED BY ITS SECRETARY, HOUSING BOARD JUNCTION, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE SECRETARY, TRIVANDRUM CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD T-170, HOUSING BOARD JUNCTION, THIRUVANANTHAPURAM, PIN - 695001** - **3 THE SPECIAL SALE OFFICER, TRIVANDRUM CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOMENT BANK LTD T-170, HOUSING BOARD JUNCTION, THIRUVANANTHAPURAM, PIN - 695001** - **4 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM, PIN - 695001** W.P.(C) No.22821/2023 : 2 : - **5 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, CO-OPERATION(B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001** **BY ADVS. SRI.SUMAN CHAKRAVARTHY SMT.SHEEJA C.S., SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.22821/2023 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.22821 of 2023 ````````````````````````````````````````````````````````````` _Dated this the 1[st] day of March, 2024_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner is a widow living with three daughters. While working in United Arab Emirates, her husband Sasidharan passed away in the year 2019. In 2016, the petitioner was given five loans for a total amount of ₹10 lakhs by the 1[st] respondent-Trivandrum Co-operative Agricultural and Rural Development Bank. Consequent to the death of the petitioner's husband, repayment fell into arrears. 2. The 1[st] respondent issued Ext.P2 demand notice dated 07.01.2022 requiring the petitioner to pay ₹6,20,000/-. The petitioner could not pay the amount. The 3[rd] respondent thereupon issued a notice of proclamation of sale as per W.P.(C) No.22821/2023 : 4 : Ext.P3. The petitioner contends that the notice was not as required by Section 19 of the Kerala State Co-operative (Agricultural and Rural Development Banks) Act, 1984 (hereinafter referred to as 'the Act, 1984'). The petitioner challenges Exts.P2 and P3 on various grounds. 3. The petitioner states that the Board or the Committee of the Bank has not authorised the sale of property as required under Section 19(2)(a) of the Act, 1984. No registered notice demanding the amount due was sent to the petitioner as required under Section 19(2)(b) read with Section 19(2)(c). The Board or Committee of the Bank did not make an application as required under Section 20 of the Act, 1984. The 2[nd] respondent-Bank Secretary is not authorised to submit application before the 3[rd] respondentSpecial Sale Officer. Section 20(1) is therefore violated. 4. Copy of the application for effecting sale of mortgaged property was not given to the petitioner. It violates principles of natural justice. Particulars of the property to be sold is not stated in Ext.P2 notice. Rule 8(c) W.P.(C) No.22821/2023 : 5 : of the Kerala State Co-operative Agricultural Development Bank Rules, 1986 (hereinafter referred to as 'the Rules, 1986') is therefore violated. The sale proclamation was in violation of Rule 8(e) of the Rules, 1986. The notices of proclamation of sale were not affixed in the office of the principal officer of the Co-operative Department and in the Taluk Office, as required under law. There was also no publication by beat of tom-tom in the village where the mortgaged property is to be sold. The Sale Officer did not measure out the mortgaged property or value the same. Even an upset price was not fixed. The sale proceedings are vitiated by fraud since there is active concealment of material facts from the petitioner. 5. The mortgaged property has a high centage value and therefore the entire property need not be sold for satisfying the loan amount. Under Rule 11 of the Rules, 1986, no larger section or portion of immovable property shall be sold than that may be sufficient to discharge the amount due with interest and expenses of sale. The W.P.(C) No.22821/2023 : 6 : petitioner relied on the judgment of this Court in _**Sathyanesan v. State Kerala Co-operative Agricultural Development Bank Limited** [2000 (2) KLT 517]_ and in _**Sosamma John v. Thrissur Co-operative Agricultural and Rural Development Bank and others** [2018 (2) KHC 498]._ 6. The 1[st] respondent-Bank resisted the writ petition filing counter affidavit. In the counter affidavit, the 1[st] respondent stated that Ext.P2 demand letter dated 07.01.2022 was issued to the petitioner requiring to pay ₹6,20,000/-. As the petitioner failed to pay, the Bank foreclosed the loan accounts of the petitioner and forwarded the files to the 3[rd] respondent-Special Sale Officer for recovery. After Ext.P2 notice, Ext.R1(b) notice was served on the petitioner under Section 20 and Rule 8(c) of the Act, 1984 and the Rules, 1986. Section 19(c) is therefore complied with. 7. The sale proclamation was issued after Ext.R1(b) notice. The Board of the Bank had given due authorisation as required under law. There is no legal requirement for W.P.(C) No.22821/2023 : 7 : providing copy of the application for effecting sale, to the petitioner. The petitioner has not requested to issue a copy of such application. Notices of proclamation of sale was affixed in the Village Office where the property of the petitioner is situated. Fixing of upset price is not a mandatory requirement under the Act. Fair value fixed by the Government was taken into account. A separate valuation is not necessary. 8. The 1[st] respondent stated that before the auction, the extent of property required to be auctioned for satisfying the dues to the Bank will be demarcated and only such extent of property will be auctioned. The writ petition was filed before the demarcation process. The closure amount payable by the petitioner as on 01.11.2023 is ₹12,30,764/-. The writ petition is therefore devoid of any merit. 9. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the 1[st] respondent. I have also heard the Senior Government Pleader representing respondents 3 to 5. W.P.(C) No.22821/2023 : 8 : 10. One of the arguments put forth by the petitioner is that the Board or the Committee of the Bank has not authorised the sale of property as required under Section 19(2)(a) of the Act, 1984. Sections 19(1) and 19(2)(a) of the Act, 1984 read as follows: ## _**19. Power of sale of property charged without intervention of court**_ - (1) Notwithstanding anything contained in the KeraIa Co-operative Societies Act, 1969 (21 of 1969), or the Transfer of Property Act, 1882 (Central Act 4 of 1882), or in any other law for the time being in force, where a Gehan or mortgage or hypothecation has been created or executed in movable or immovable property in accordance with the provisions of sub-section (1) of section 10 in favour of the Agricultural and Rural Development Bank or a primary Bank, the Board or committee of such bank or any person authorised by the Board or such committee shall, in case of default in the payment of sums due to the bank, have power, in addition to any other remedy available to the primary bank to bring to sale the property to which the Gehan or mortgage or hypothecation relates without intervention of the court. (2) No such power shall be exercised unless and until - (a) the Board or the committee has previously authorised such sale in the exercise of the power of sale conferred on It by sub-section ( 1) . In view of sub-section 2(a), the power of sale of property charged without intervention of court can be exercised only W.P.(C) No.22821/2023 : 9 : by persons previously authorised by the Board or the Committee of the Society. 11. In the counter affidavit filed by the 1[st] respondent, the 1[st] respondent has produced Ext.R1(a) decision of the Managing Committee whereby the Managing Committee has decided to foreclose the files in respect of persons named therein and to forward the same to the Sale Officer. The 1[st] respondent has also produced Ext.R1(b) notice of the Sale Officer. Therefore, the arguments of the petitioner based on Section 19(2)(a) of the Act, 1984 cannot be accepted. 12. The petitioner has further alleged that the Board or Committee of the Bank did not make an application as required under Section 20 of the Act, 1984. It is alleged that the 2[nd] respondent-Bank Secretary is not authorised to submit application before the 3[rd] respondent-Sale Officer. Ext.R1(c) produced by the 1[st] respondent is the decision of the Managing Committee of the Bank whereby the Junior Supervisor of the Bank Sri. Jiji K.L. has been authorised to act on behalf of the Bank during the auction proceedings. W.P.(C) No.22821/2023 : 10 : The argument based on Section 20 of the Act, 1984 is therefore unsustainable. 13. The petitioner has a further case that copy of the application for effecting sale of mortgaged property was not given to the petitioner. It is to be noted that neither the Act, 1984 nor the Rules made thereunder provides for giving a copy of the application for effecting sale of the mortgaged property to the mortgagors. The Special Sale Officer has issued Ext.R1(b) notice to the petitioner intimating that unless the monetary dues to the Bank is paid, proceedings will be initiated for public auction of the mortgaged property. Ext.R1(b) will satisfy the requirements of principles of natural justice. 14. The petitioner then contended that the notices of proclamation of sale were not affixed in the office of the Principal Officer of the Co-operative Department and in the Taluk Office. The 1[st] respondent, however, has stated in the counter affidavit that communication was forwarded to the Village Officer where the property of the petitioner is situated W.P.(C) No.22821/2023 : 11 : as per Ext.R1(d) and the Village Officer has initiated Ext.R1(d) endorsing that the same was received on 30.05.2023. Further, 52 files including that of the petitioner were forwarded to the office of the Registrar of Co-operative Societies, Thiruvananthapuram on 31.05.2023. The set of 52 files including that of the petitioner were also forwarded to the Tahsildar as per Ext.R1(g). 15. The petitioner would then allege that the respondents have not fixed upset price and that the fixing of upset price is a mandatory requirement. Neither the Act, 1984 nor the Rules made thereunder contemplate fixing of an upset price. Fair value fixed by the Government was taken into account. Therefore, unless there is any fraud in the sale of assets or any misrepresentations as regards the property, the petitioner cannot challenge the sale stating that the sale is vitiated as upset price fixed. 16. As regards the argument of the petitioner that under Rule 11 of the rules, 1986, no larger section or portion of immovable property shall be solved than that may be W.P.(C) No.22821/2023 : 12 : sufficient to discharge the amount due with interest and expenses of sale, the 1[st] respondent has stated that before the auction, the extent of property required to be auctioned for satisfying the dues to the Bank will be demarcated and only such extent of property will be auctioned. The petitioner has rushed to this Court filing writ petition before the Bank demarcated the property. 17. The petitioner has a specific case that particulars of the property to be solved is not stated in Ext.P2 notice and that Rule 8(c) of the Rules, 1986 stands violated. Rule 8 of the Rules, 1986 relating to the procedure in the sale of mortgaged property / Gehan reads as follows:- **8. Procedure in the sale of Mortgaged property/Gehan -** In the sale of secured immovable property under provisions of Chapter V of the Act, the following procedure shall be observed:- (a) No application under sub-section (1) of section 20 of the Act shall be entertained unless the Board or the Committee deposits the necessary costs of proclamation and sale as may be fixed by the Registrar. (b) The application shall be in such form as may be required by the Registrar and shall be signed by W.P.(C) No.22821/2023 : 13 : the Board or the committee or a person duly authorised by the Board of the committee. It shall state the amount due for recovery including interest, expenses incurred in the service of the notice referred to in clause (b) of sub-section (2) of section 19 of the Act, the names and addresses of the persons on whom notice was served under the said clause. It shall also contain a description of the immovable property including buildings, machinery and its accessories to be proceeded against, sufficient for its identification, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the specification of such boundaries or numbers. (c) On receipt of the application, the Sale Officer shall give a notice in writing to all the persons referred to in clause (b) of sub-section (2) of section 19 of the Act stating the amount claimed by the bank including expenses incurred by it in the service of notice and the particulars of the properties to be sold in case of non-payment and demanding payment within a time to be allowed by the Sale officer. (d) If, before the expiration of the time allowed in the notice issued under clause (b), the amount specified in such notice is not paid, the Sale Officer shall, after giving notice to the Agricultural Development Bank or Primary bank, as the case may be, on whose behalf the application is made, proceed to sell the property specified in the application. (e) A proclamation of sale shall be published by affixing a notice in the office of the principal officer of the Co-operative Department in the District and in the Taluk Office at least thirty days before the date fixed for the sale and may also be published in a local daily having wide circulation in the area and by beat of tom tom in the village where the security property to be sold is situated on two consecutive days previous to the date of sale and on the day of sale, prior to commencement of the sale. The W.P.(C) No.22821/2023 : 14 : proclamation shall state the time and place of sale and specify as fairly and accurately as possible:- (i) the property to be sold; (ii) the revenue or rent payable in respect thereof; (iii) the amount for the recovery of which the sale is ordered; and (iv) any other matter which the sale officer considers material for a purchaser to ascertain in order to judge the nature and value of the property. (f) When any mortgaged/secured immovable property is sold under these rules, the sale shall be subject to prior encumbrances, if any, on the property. The sale shall be by public auction to the highest bidder. The Sale Officer may, in his discretion, adjourn the sale to a specified day and hour, recording his reasons for such adjournment. Where a sale is so adjourned for a period longer than seven days, a fresh proclamation under clause (e) shall be issued unless the defaulter consents to waive it. (g) A sum of money equal to 15 per cent of the price of the property shall be deposited by the purchaser with the Sale Officer at the time of the purchase and in default of such deposit, the property shall forthwith be resold: Provided that where the Agricultural Development Bank or the primary Bank at whose instance the property is sold is the purchaser and is entitled to set off the purchase money against the amount due under clause (1) the sale Officer shall dispense with the requirements of this clause. (h) The remainder of the purchase money and the amount required for the general stamp for the certificate under section 23 of the Act shall be paid within 15 days from the date of the sale: W.P.(C) No.22821/2023 : 15 : Provided that the time for payment of the amount required for the general stamp may, for good and sufficient reason, be extended at the discretion of the principal officer of the Co-operative Department in the District, upto thirty days form the date of the sale: Provided further that in calculating the remainder of the purchase money to be paid under this clause, the purchaser shall have the advantage of any set off to which he may be entitled under clause (1). (i) In default of payment within the period mentioned in clause (h), the deposit may, if the Sale Officer thinks fit, after defraying all costs, charges and expenses of the sale, be forfeited to the bank and the defaulting purchaser shall forfeit all claims to the property or to any part of the sum for which it may subsequently be sold. (j) Any deficiency of price which may happen on the resale by reason of the purchaser's default and all expenses attending such resale shall, at the instance of either the applicant or the mortgagor or the person who created the Gehan, be recoverable from the defaulting purchaser under the provisions relating to the execution of an award of an arbitrator under the Kerala Co-operative Societies Act, 1969 (21 of 1969). (k) Every resale of machinery or mortgaged property in default of payment of the purchase money within the period allowed for such payment, shall be made after the issue of a fresh proclamation in the manner and for the period herein before prescribed for the sale. (l) Where the Agricultural Development Bank or the primary Bank, at whose instance the property is sold, is the purchaser, the purchase money and the amount due shall be set off against one another and the sale officer shall enter up satisfaction of W.P.(C) No.22821/2023 : 16 : payment of the mortgage money in full or in part accordingly. 18. Rule 8(b) mandates that an application under Section 20(1) shall contain a description of the immovable property including buildings, machinery and its accessories to be proceeded against, sufficient for its identification, and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the specification of such boundaries or numbers. 19. Ext.P3 is the notification of the Sale Officer in respect of auction of the property. Though Ext.P2 gives survey numbers and extent of property, Ext.P3 does not disclose the existence of a building in the said property. In the circumstances, there is clearly a violation of Rule 8(b) of the Rules, 1986. 20. The auction by the respondents of the property mortgaged by the petitioner is therefore vitiated. Ext.P3 and all further proceedings thereto are therefore set aside. The respondents will be at liberty to cure the defects in the W.P.(C) No.22821/2023 : 17 : auction proceedings and proceed in accordance with law. The respondents will also be at liberty to permit the petitioner to pay the amounts demanded in Ext.P3 and to regularise / settle the loan account of the petitioner. The writ petition is disposed of as above. Sd/- **N. NAGARESH, JUDGE** aks W.P.(C) No.22821/2023 : 18 : ## **APPENDIX OF WP(C) 22821/2023** ## **PETITIONER'S EXHIBITS:** **Exhibit P1 A TRUE COPY OF THE DEATH CERTIFICATE DATED 28/1/2019 ISSUED BY THE DEPARTMENT OF PREVENTIVE MEDICINE, MINISTRY OF HEALTH AND PREVENTION, UNITED ARAB EMIRATES** **Exhibit P2 A TRUE COPY OF THE DEMAND NOTICE DATED 7/1/2022 ISSUED TO THE PETITIONER FROM THE 1ST RESPONDENT BANK** **Exhibit P3 A TRUE COPY OF THE NOTICE OF PROCLAMATION OF SALE DATED 30/5/2023 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER** ## **RESPONDENTS' EXHIBITS:** - **Exhibit-R1(a) A TRUE COPY OF THE DECISION NO.18 OF THE MANAGING COMMITTEE DATED 25.04.2022** - **Exhibit-R1(b) A TRUE COPY OF THE NOTICE DATED 11.07.2022 ISSUED BY THE 3RD RESPONDENT** - **Exhibit-R1(c) A TRUE COPY OF THE DECISION NO.225 DATED 25.03.2022** - **Exhibit-R1(d) A TRUE COPY OF THE COVERING LETTER OF THE DETAILS FORWARDED TO THE VILLAGE OFFICER, THIRUVALLOM WHERE THE PROPERTY OF THE PETITIONER IS SITUATED** - **Exhibit-R1(e) A TRUE COPY OF THE LIST OF FILES FORWARDED TO THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THIRUVANANTHAPURAM WITH THE SEAL OF ACKNOWLEDGMENT** - **Exhibit-R1(f) A TRUE COPY OF THE LIST OF FILES FORWARDED TO THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), AR OFFICE, THIRUVANANTHAPURAM WITH SEAL OF ACKNOWLEDGMENT DATED 30.05.2023** W.P.(C) No.22821/2023 : 19 : |**Exhibit-R1(g)**|**A TRUE COPY OF THE LIST OF FILES**| |---|---| ||**FORWARDED**<br>**TO**<br>**THE**<br>**TAHSILDAR,**| ||**THIRUVANANTHAPURAM WITH SEAL OF**| ||**ACKNOWLEDGMENT DATED 30.05.2023**| |**Exhibit-R1(h)**|**A TRUE COPY OF THE REQUEST MADE BY THE**| ||**SECRETARY TO THE SALES OFFICER DATED**| ||**27.04.2022**| |**Exhibit-R1(i)**|**NOTICE DATED 18.09.2021 ISSUED TO THE**| ||**PETITIONER**<br>**ALONG**<br>**WITH**<br>**THE**| ||**ACKNOWLEDGMENT CARD**|