Stella Abi v. Joint Registrar (General) of Co-operative Societies, Thrissur District; Kanippayyur Service Co-Operative Bank Ltd. (3rd Respondent) represented by its Secretary; Sale Officer, Kanippayyur Service Co-Operative Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937** **WP(C).NO. 10287 OF 2011 (I)** **----------------------------** **PETITIONER:** **--------------** **STELLA ABI, W/O.ABI, CHEERAN VEEDU, CHOWANNUR PADAM, MARATHAMCODE P.O. THRISSUR DISTRICT-680604.** **BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR** **RESPONDENT(S):** **--------------** **1. THE JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, THRISSUR DISTRICT-680001.** **2. THE SALE OFFICER, KANIPPAYYUR SERVICE CO-OPERATIVE BANK LTD. NO.280, KANIPPAYYUR, THRISSUR DISTRICT-680517.** **3. THE KANIPPAYYUR SERVICE CO-OPERATIVE BANK LTD.NO.280, REPRESENTED BY ITS SECRETARY, KANIPPAYYUR, THRISSUR DISTRICT-680517.** **R3 BY ADV. SRI.P.N.MOHANAN R1,R2 BY ADV. GOVERNMENT PLEADER, SRI. NOUSHAD THOTTATHIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NO. 10287 OF 2011 (I)** **----------------------------** **APPENDIX ========** ## **PETITIONER'S EXHIBITS:** **=====================** **EXT.P1 A TRUE COPY OF THE NOTICE DATED 15.10.2002. EXT.P2 A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE PRESIDENT OF THE 3[RD] RESPONDENT DATED 25.2.2011 EXT.P3 A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE HON'BLE MINISTER, CO-OPERATION DT. 25.2.2011.** ## **RESPONDENTS' EXHIBITS:** **======================** **EXT.R3(A) A TRUE COPY OF THE CONFIRMATION OF THE SALE ISSUED BY THE ASSISTANT REGISTRAR. EXT.R3(B) A TRUE COPY OF THE SALE DEED. EXT.R3(C) A TRUE COPY OF THE COMPLAINT OF THE PETITIONER AND THE REPLY FURNISHED BY THE BANK.** **//TRUE COPY// P.A. TO JUDGE** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = = W.P. (C) No.10287 of 2011** **- - - - - - - - - -- - - - - - - - - - -** Dated this the 9th day of March, 2016 ## **J U D G M E N T** The petitioner had availed a loan of Rs.15,000/- from the 3[rd] respondent Bank, during October,1998 and the period of repayment of the loan was seven years and the rate of interest was 13% per annum. The property belongs to the petitioner is having an extent of 17½ cents of land was offered, as security. Subsequently, the petitioner could not repay the instalment, as agreed. Thereupon, the Bank filed ARC No.2001/2001 and obtained an award, to recover an amount of Rs.33,500/- with interest from the petitioner and her assets. 2. In execution, the Sale Officer issued a notice intimating sale of the property and the sale ## **W.P.(C) No. 10287 of 2011** ## **-: 2 :-** was scheduled to be held on 15.11.2005. On that date, the petitioner remitted an amount of Rs.5,000/- with the Bank, in order to adjourn the sale. The said amount was deposited on the basis of the instruction given by the Sale Officer as well as the President and the Secretary of the Bank. Thus, the petitioner was under the _bona fide_ belief that the sale is adjourned. But, subsequently, the petitioner came to know that the Sale Officer conducted the sale, on that day and the Bank bid the property in auction and after that no notice was issued to the petitioner, intimating the confirmation of the sale. In fact, the petitioner was totally unaware about the confirmation of the sale in favour of the Bank. When the petitioner approached the Bank, to enquire about the total amount due to the Bank, the Bank officials intimated ## **W.P.(C) No. 10287 of 2011** **-: 3 :-** that the loan was wiped off by the auction of her property, which is bid by the Bank itself. According to the petitioner, the property, which is bid by the Bank is worth more than Rs.30,000/-, at the time of sale. When the petitioner was served with a notice from the Taluk Office, stating that the property is going to be measured and demarcated, the petitioner approached the Bank and the petitioner came to understand that the sale was conducted during the year 2002 itself and it was confirmed subsequently. The petitioner then filed Ext.P2 representation, to the President of the Bank, requesting to set aside the sale and release the property to her, on receipt of the amount due to the Bank from the petitioner. But, the respondent society has not considered the said representation so far. It is with the averments, this writ petition ## **W.P.(C) No. 10287 of 2011** ## **-: 4 :-** has been filed with a prayer, to quash the sale proceedings of the petitioner's property pertaining to sale conducted on 15.11.2005, pursuant to Ext.P1 and to direct the 3[rd] respondent, to consider Ext.P2 representation and to re-convey the property to her. 3. The Bank filed a counter statement, denying the allegation that on the date of sale, the petitioner was directed to deposit Rs.5,000/-, by the President and the Secretary of the Bank and after receiving the said amount, the sale was confirmed on the same day itself, without informing the petitioner. According to the 3[rd] respondent, the sale was conducted on 15.11.2005 and on that day the petitioner deposited Rs.5,000/- voluntarily and requested to adjourn the sale. On the said request, the sale was adjourned to 21.11.2005 and on that day, since the petitioner could not remit the ## **W.P.(C) No. 10287 of 2011** ## **-: 5 :-** balance amount sale was confirmed. After the sale, the petitioner has not resorted to statutory remedy under Rule 83 of the Kerala Co-operative Societies Rules, 1969 ( _hereinafter referred to as 'the Rules')_ and she approached this Court, after a long lapse of more than six years. Ext.P3 representation is not maintainable under the Rules, since the property was bid in auction, by the 3[rd] respondent society itself and the same was confirmed and the 3[rd] respondent took possession of the property. Therefore, none of the reliefs sought for in this writ petition are allowable under law. 4. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the 3[rd] respondent Bank. 5. The learned counsel for the petitioner advanced arguments, in support of the grounds raised ## **W.P.(C) No. 10287 of 2011** ## **-: 6 :-** in the memorandum of writ petition. The sum and substance of the contentions raised by the learned Standing Counsel appearing for the 3[rd] respondent Bank is that since the sale was confirmed before six years, none of the reliefs can be allowed in accordance with law. In support of the arguments, the learned counsel for the petitioner cited the decision of this Court in W.P.(C) No.19652 of 2015. 6. Going by the rival pleas and the arguments advanced thereunder, it is seen that the petitioner has no case that the sale is initiated by fraud or procedural irregularity. It is the case of the petitioner that the petitioner was totally unaware of the sale of her property and she was under the impression that the sale stood postponed indefinitely. 7. As rightly contented by the learned ## **W.P.(C) No. 10287 of 2011** ## **-: 7 :-** Standing Counsel appearing for the 3[rd] respondent Bank, the petitioner has not resorted to statutory remedy, as provided under Rule 83 of the Rules. In the absence of any kind of procedural irregularity or fraud, this Court is not inclined to interfere with the sale, which stood confirmed, invoking extra ordinary jurisdiction of this court, under Article 226 of the Constitution of India. 8. The above view is supported by the decision of this Court in W.P.(C) No.19652 of 2015, wherein this Court relied on the decision held by the Supreme Court in _**Navalkha & Sons v. Sri Ramanya Das & Others**_ [1969 (3) SCC 537]. Hence, this Court declines jurisdiction in this matter. 9. But, having regard to the grievance of the petitioner, it is made clear that this judgment will not stand in the way of reconsideration of the **W.P.(C) No. 10287 of 2011** ## **-: 8 :-** petitioner's request, by the respondent Bank itself. The aim and object of the Co-operative movement in the Agricultural sector is nothing other than welfare of the small scale agriculturists and also to save them from loss of their land. Therefore, even if, the sale was confirmed and the 3[rd] respondent Bank is in possession of the property, the 3[rd] respondent is at liberty, to consider Ext.P3 representation filed by the petitioner and take a decision in his favour, without causing any loss to the Bank, if the bank desires so. However, I make it clear that the petitioner is entitled to get back Rs.25,000/- deposited by her, pursuant to the interim order of this Court dated 31.03.2011, with normal interest, if the Bank does not take a decision in his favour, and in that event, the said amount shall be returned with normal interest to the ## **W.P.(C) No. 10287 of 2011** ## **-: 9 :-** petitioner, at the earliest, at any rate, within a period of two months from the date of receipt of a copy of this judgment. The petitioner is directed to serve a copy of this judgment to the Bank, at the earliest. This writ petition is disposed of accordingly. DST Sd/- **K. HARILAL,** //True copy// P.A. To Judge **JUDGE**