Sunny Abraham v. Idukki District Co-operative Bank Ltd. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **FRIDAY, THE 15TH DAY OF JUNE 2012/25TH JYAISHTA 1934S** ## **WP(C).No. 5140 of 2009 (J)** ## **--------------------------** ## **PETITIONER(S): -------------** **SUNNY ABRAHAM, ELAVUMKUNNEL (ELAVAMKAL), KALLARKUTTY (ELAVUMKUNNEL STORES), ADIMALI P.O., IDUKKI DISTRICT.** **BY ADVS.SRI.C.M.TOMY** **SRI.K.J.JOSEMON** **RESPONDENT(S):** - **--------------** **1. THE IDUKKI DISTRICT CO-OPERATIVE BANK LTD., REP. BY ITS GENERAL MANAGER IDUKKI COLONY P.O.** **2. THE SALES OFFICER, THE IDUKKI DIST CO-OPERATIVE BANK LTD., IDUKKI.** **3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, IDUKKI DISTRICT, IDUKKI P.O.** **4. THE BRANCH MANAGER, THE IDUKKI DIST. CO-OPERATIVE BANK LTD., ADIMALI BRANCH.** **5. THE REGISTRAR CO-OPERATIVE SOCEITEIS, THIRUVANANTHAPURAM.** **6. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVT., DEPT. OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM.** **7. M.M. RAJAPPAN, S/O. MADHAVAN, THE RETIRED GENERAL MANAGER, THE IDUKKI DISTRICT CO-OPERATIVE BANK LTD., RESIDING AT SUVARNA HOUSE, THADIYAMPAD P.O.** **8. ELDOSE, CHERUPURATH, ADIMALY P.O., IDUKKI DISTRICT.** **WP(C).No. 5140 of 2009** **2** **9. POULOSE, S/O. POULOSE, CHERUPURATHU VEEDU, ANAVIRATTY P.O., IDUKKI DISTRIT.** **R1, R2, R3, R5 & R6 BY GOVERNMENT PLEADER SRI.EGY N.ALIAS R1 & R4 BY ADV. SRI.P.C.SASIDHARAN BY ADV. SRI.JOICE GEORGE, SC,IDUKKI D.CO-OP.BANK R8 BY ADV. SRI.K.K.RAJEEV R9 BY ADV. SRI.THOMAS M.JACOB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **3** ## **WP(C).No. 5140 of 2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1: PHOTOCOPY OF THE NOTICE DAED 27.9.2005 PUBLISHED BY THE 1ST RESPONDENT IN MALAYALA MANORAMA DAILY DATED 1.10.2005.** - **EXT.P2: PHOTOCOPY OF THE NOTICE DATED 7.11.2005 PUBLISHED BY THE 1ST RESPONDENT IN DEEPIKA DAILY DATED 13.11.2005.** - **EXT.P3: PHOTOCOPY OF THE NOTICE DATED 14.11.2005 PUBLISHED BY THE 1ST RESPONDENT.** - **EXT.P4: PHOTOCOPY OF THE JUDGMENT DATED 15.12.2005 IN W.P.(C) NO.35894/04 W.** - **EXT.P5: PHOTOCOPY OF THE RECEIPT FOR PAYMENT OF RS.70,375/- ON 24.11.2005 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXT.P6: PHOTOCOPY OF THE LETTER DATED 9.3.2006 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXT.P7: PHOTOCOPY OF THE RECEIPT FOR PAYMENT OF RS.2,11,125/- ON 17.3.2006 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXT.P8: PHOTOCOPY OF THE NOTICE DATED 17.3.2006 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.** - **EXT.P9: PHOTOCOPY OF THE LETTER DATED 25.3.2008 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.** - **EXT.P10: PHOTOCOPY OF THE LETTER DATED 16.4.2008 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXT.P11: PHOTOCOPY OF THE LAWYER NOTICE DATED 23.10.2008 CAUSED BY THE PETITIONER TO THE RESPONDENTS 1 TO 7.** - **EXT.P12: PHOTOCOPY OF THE REPLY DATED 29.10.2008 ISSUED BY THE 2ND RESPONDENT TO THE COUNSEL FOR THE PETITIONER.** - **EXT.P13: PHOTOCOPY OF THE REPLY LAWYER NOTICE DATED 11.11.2008 CAUSED BY THE 1ST RESPONDENT TO THE COUNSEL FOR THE PETITIONER.** ## **RESPONDENT'S EXHIBITS:** **EXT.R1(a): COPY OF THE INTERIM ORDER IN IN W.P.(C)NO.35894/04. EXT.R1(b): COPY OF THE JUDGMENT IN W.P.(C) NO.35894/04.** **WP(C).No. 5140 of 2009** **4** **EXT.R1(c): COPY OF THE ORDER IN R.P.NO.267/2006. EXT.R1(d): COPY OF THE PETITION PREFERRED BY PAULOSE BEFORE THE JOINT REGISTRAR. EXT.R1(e): COPY OF ORDER IN A.R.C. DATED 14.8.2008. EXT.R1(f): COPY OF THE ORDER ISSUED BY THE MUNSIFF COURT, DEVIKULAM. EXT.R9(a): COPY OF ORDER DATED 21.3.2006 IN R.P.NO.267/06 IN W.P.(C) NO.35894/04. EXT.R9(b): COPY OF PETITION NUMBERED AS ARC NO.67/08. EXT.R9(c): COPY OF ORDER NO.AEL NO.2830/08 DATED 14.08.08 IN ARC NO.67/08. EXT.R9(d): COPY OF PETITION FILED BY WRIT PETITIONER IN ARC NO.67/08.** **/TRUE COPY/** **P.A. TO JUDGE** VPV ## **P.N.RAVINDRAN,J.** ------------------------------- W.P.(C) No.5140 of 2009 -------------------------------------Dated this the 15[th] day of June, 2012 ## **JUDGMENT** The petitioner was the successful bidder in an auction conducted by the first respondent bank on 24.11.2005 to realise the amount due from respondents 8 and 9 and another. In this writ petition, the petitioner seeks an order directing respondents 1 to 7 to execute a sale certificate in respect of the lands purchased by him in the auction and to put him in possession of the land within a time limit to be stipulated by this Court. The brief facts of the case are as follows: 2. Smt.Bindu Eldose, wife of the eighth respondent availed a loan of Rs.2,00,000/- on 20.5.1999, from the first respondent cooperative bank. Two items of properties, viz., 15 cents of land situated in R.S.No.564/1 belonging to the eighth respondent her husband and 10 cents of land situated in the very same survey number, belonging to the ninth respondent, together with all the improvements therein, were mortgaged to the first respondent bank as security for the loan availed by Smt.Bindu Eldose. Smt.Bindu Eldose committed default in repayment of the loan. 3. The eighth respondent herein suffered an award in O.P.(MV) W.P.(C) No.5140 of 2009 2 Nos.961 & 962 of 1997 on the file of the Motor accidents Claims Tribunal, Thodupuzha. In execution of the award passed in the said cases on 22.6.2002, 15 cents of land belonging to the eighth respondent was attached and sold by the Tahsildar, Devikulam Taluk in the sale held on 28.8.2003 for an amount of Rs.1,06,500/-. The first respondent bank thereupon filed W.P.(C)No.35894 of 2004 in this Court challenging the sale on the ground that the bank has got a first charge over the property which was sold in the revenue sale. Smt.Bindu Eldose and her husband, the eighth respondent herein were parties to W.P.(C)No.35894 of 2004. 4. Initially, an interim order staying the confirmation of sale held on 28.8.2003 by the Tahsildar, Devikulam was granted in W.P.(C) No.35894 of 2004. Later, by Ext.R1(a) interim order passed on 5.9.2005, this Court directed the first respondent bank to notify the mortgaged properties including the properties sold in the auction and purchased by Sri.C.K.Chandran for sale and to file a report in regard to the offers received from the buyers. Pursuant to the said order, the bank conducted a sale on 24.11.2005 and sold the properties having a total extent of 25 cents with all the buildings and improvements therein, mortgaged by respondents 8 and 9, in the auction held on 24.11.2005 for Rs.2,81,500/- to the petitioner who was the highest W.P.(C) No.5140 of 2009 3 bidder in the auction. He remitted the sum of Rs.70,735/- towards 25% of the bid amount on the same day, as seen from Ext.P5 receipt. W.P.(C)No.35894 of 2004 thereafter came up for hearing on 15.12.2005 and was disposed of by Ext.P4 judgment with a direction to the Tahsildar, Devikulam to forward the amount recovered from Sri.C.K.Chandran in the auction conducted by him on 28.8.2003 without delay to the first respondent bank and a further direction to the first respondent bank to pay the entire amount received from the Tahsildar to Sri.C.K.Chandran, the auction purchaser and along with interest at 9% per annum from the date of deposit of the money till the date of release of payment by the bank. This Court also directed that as and when payment is made, the sale will be confirmed in favour of the purchaser in the sale held on 24.11.2005 (the petitioner herein) and the first respondent bank will be free to appropriate the balance towards the amount due to it. 5. After Ext.P4 judgment was delivered, the first respondent bank sent Ext.P6 letter dated 9.3.2006 to the petitioner calling upon him to remit the balance bid amount for execution of the sale document and he remitted the sum of Rs.2,11,125/- on 17.3.2006. The petitioner had in the meanwhile, paid an amount of Rs.28,150/on 13.3.2006 to the Legal Adviser of the bank for purchasing stamp W.P.(C) No.5140 of 2009 4 papers for execution of the sale certificate. He also submitted Ext.P8 representation dated 17.3.2006 before the General Manager of the first respondent bank calling upon him to execute the required documents and to put him in possession of the land. The General Manager of the first respondent bank thereupon moved for issuance of a sale certificate. The Special Sale Officer thereupon sent Ext.P9 letter dated 25.3.2008 to the General Manager of the first respondent bank stating that as the properties were not sold after attachment, the sale certificate cannot be issued. The General Manager of the first respondent bank forwarded a copy of Ext.P9 letter to the petitioner along with Ext.P10 letter dated 16.4.2008. The petitioner thereafter caused Ext.P11 lawyer notice dated 23.10.2008 to be issued to the first respondent bank, its Special Sale Officer, the Joint Registrar of Co-operative Societies and others. The Special Sale Officer thereupon sent Ext.P12 reply informing the petitioner that as the properties were not sold in execution of an award, the sale certificate cannot be issued. The first respondent bank gave Ext.P13 reply through its lawyer wherein it was stated that in view of the stand taken by the Special Sale Officer, the bank is not in a position to take further steps in the matter. The instant writ petition was thereupon filed seeking the following relief: W.P.(C) No.5140 of 2009 5 _“(i)Issue a writ of mandamus and/or other appropriate writ, order or direction, commanding the respondents 1 to 7 to execute/cause to execute the sale certificate conferring title on the petitioner of the properties having an extent of 25 cents of land in Sy.No.1295(Re-survey No.564/1) of Mannankandom Village, Devikulam Taluk along with all the buildings and improvements therein sold to the petitioner in the auction held by the 1[st] respondent on 24.11.2005, and to put the petitioner in possession of the said properties, within a time limit stipulated by this Court”._ The main contention raised by the petitioner is that as the sale was validly held pursuant to the interim order passed by this Court with public notice and the interim order was confirmed by Ext.P4 judgment, he is entitled to have the property conveyed and delivered over to him. 6. Respondents 1 and 4 have filed a counter affidavit dated 29.4.2009 admitting the fact the petitioner was the successful bidder in the auction held on 24.11.2005 and stating that though the bank had filed an execution petition, E.P.No.36 of 2006 before the Munsiff's Court, Devikulam, that application was dismissed by Ext.R1(f) order dated 31.10.2007 on the ground that this Court has not issued any direction regarding execution of the order of this Court. It is stated that after the property was sold, the bank moved the Speical Sale Officer for confirmation of sale and that application was rejected for the reasons stated in Ext.P9 letter dated 25.3.2008. The first respondent bank has also stated that as the sale was held pursuant to W.P.(C) No.5140 of 2009 6 the direction issued by this Court in W.P.(C)35894 of 2004 in which the Joint Registrar of Co-operative Societies was a party, he is bound to issue the sale certificate and also to put the petitioner in possession of the properties. 7. The eighth respondent has filed a counter affidavit dated 8.3.2011. In paragraph 3 he has stated that he did not receive notice on W.P.(C)No.35894 of 2004 and that the interim order and final judgment in W.P.(C)No.35894 of 2004 were passed without hearing him. He has also stated that in the absence of an award passed under the Kerala Co-operative Societies Act, the bank had no right to bring his property to sale and therefore the sale held on 24.11.2005 is illegal. He has also contended that the subject matter of W.P.(C) No.35894 of 2004 was not recovery of the amount advanced by the first respondent bank to his wife, but the validity of the sale conducted by the Tahsildar under the Kerala Revenue Recovery Act, 1968 in execution of an award passed by the Motor Accidents Claims Tribunal, Thodupuzha and therefore, the bank could not have proceeded against his property to recover the amount due from him and his wife pursuant to the orders passed by this Court in W.P.(C)No.35894 of 2004. 8. The ninth respondent has filed a counter affidavit dated 4.4.2009 reiterating the contentions raised by the eighth respondent W.P.(C) No.5140 of 2009 7 and questioning the validity of the sale held on 24.11.2005. He has also stated that he was not a party to W.P.(C)No.35894 of 2004, that his property was not the subject matter of the writ petition, that the bank had as a matter of fact filed ARC No.295 of 2005 to realise the sum of Rs.3,00,160/- from him, that in the arbitration case, notice was issued and he appeared before the Arbitrator on 29.11.2005, but no follow up action has been taken and that in the absence of an award, the sale held on 24.11.2005 cannot be sustained. The ninth respondent has also stated that aggrieved by Ext.P4 judgment he had filed R.P.No.267 of 2006 and that the said review petition was disposed of by Ext.R9(a) order with the observation that confirmation of the sale held by the first respondent bank will be subject to applicable laws and any person aggrieved including the ninth respondent can resort to appropriate remedies before the concerned authorities. He has stated that thereupon he filed ARC No.67 of 2008 before the Arbitrator for a declaration that the proceedings initiated by the bank to recover the amount due from him and the alleged auction sale of the property held on 24.11.2005 are null and void. 9. When this writ petition came up for hearing on 31.8.2011, after hearing the learned counsel appearing on both sides, this Court passed the following order: W.P.(C) No.5140 of 2009 8 _"The first respondent to file a statement through the learned counsel setting out the following details on or before 5.9.2011._ _1. The total amount due from Smt.Bindu Eldose, wife of the 8[th] respondent, who had availed the over draft facility, as on 31.8.2011._ _2. The amount that was paid by the first respondent bank to Sri.C.K.Chandran, the 3[rd] respondent in WP(C) No.35894 of 2004 by way of interest._ _3. The amount payable by way of interest calculated at the rate of 7.5% per annum on the sum of Rs.2,81,500/- and Rs.28,500/- deposited by the petitioner on 17.3.2006 and 13.6.2006 respectively from those dates till 31.8.2011._ _4. The amount payable by Smt.Bindu Eldose and respondents 8 and 9 whose properties were mortgaged as security for the loan, for one time settlement in terms of Circular No.41/2011 dated 23.6.2011 and Circular No.62/2011 dated 12.8.2011._ _Post on 5.9.2011 as part heard._ _Hand over."_ ## 10. Pursuant to the order dated 31.8.2011, the learned standing counsel appearing for respondents 1, 2 and 4 has filed a statement dated 5.9.2011. The relevant portions thereof are extracted below: _“(1)The total amount due from Smt.Bindu Eldhose, W/o.8[th] respondent, who had availed over draft facility in the year 1999, as on 31.8.2011. Interest as per agreement is 17% and over due interest is 2% (a)Total amount receivable upto 31.8.2011 with quarterly compound interest Principal Rs.2,00,000/Interest Rs.7,12,946/Other expenses Rs.33,000/----------------Total Rs.9,45,946/===========_ - _(b) Total interest receivable upto 31/8/2011 with simple_ W.P.(C) No.5140 of 2009 9 _interest_ _Principal Rs.2,00,000/Interest Rs.3,18,190/Other expenses Rs.33,000/---------------Total Rs.5,51,190/===========_ _(2) The amount that was paid by the 1[st] respondent bank to Sri.C.K.Chandran, the 3[rd] respondent in W.P.(C)No.35894/2004 by way of interest is Rs.38,063/-_ _Principal Rs.1,06,500/Interest Rs.38,603/----------------Total Rs.1,45,103/==========_ _The amount payable by way of interest calculated @ 7.5% per annum to the amount deposited by the petitioner._ _(a) for Rs.2,81,500/-(from 17.3.2006 to 31.8.2011) = Rs.1,15,222/-_ _(b) for Rs.28,500(from 13/6/2006 to_ _31/8/2011) = Rs.11,150/-_ _-----------------Total = Rs.1,26,372/-_ _The amount payable by Smt.Bindu Eldhose and respondents 8 and 9 whose properties were mortgaged as security for the loan, for one time settlement in terms of Circular 41/2011 dated 23/6/2011 and Circular No.62/2011 dated 12/8/2011._ _Principal Rs.2,00,000/Interest Rs.2,00,000/ARC fees Rs.1,500/---------------Total Rs.4,01,500/==========_ W.P.(C) No.5140 of 2009 10 _In addition to the above, the bank has incurred expenses for paper publication for effecting sale in terms of the direction issued by this Court so also other miscellaneous expenses and it is also one to be recouped from the loanee. It is further submitted that for one time settlement interest paid by the bank to Sri.C.K.Chandran so also the interest payable to the writ petitioner is also to be paid by the original loanee”._ 11. In the statement dated 5.9.2011 filed by the learned standing counsel appearing for respondents 1, 2 and 4, it is stated the total amount due from the principal debtor as on 31.8.2011 consisting of principal and interest at compounded rate and other expenses was Rs.9,45,946/-. It is also stated that the principal amount and the amount payable by way of interest (simple interest) as on 31.8.2011 was Rs.5,51,190/-. It is also stated that pursuant to Ext.P4 judgment, the bank paid Rs.1,45,103/- to Sri.C.K.Chandran, the auction purchaser in the revenue sale conducted by the Tahsildar and that the interest payable on the sum of Rs.2,81,500/- deposited by the auction purchaser for the period from 17.3.2006 to 31.8.2011, calculated at 7.5% per annum is Rs.1,15,222/- and the interest payable on the stamp duty of Rs.28,500/- is Rs.11,150/-. It is also stated that applying circular No.41/2011 dated 23.6.2011 and circular No.62/2011 dated 12.8.2011, the amount payable as on 30[th] September 2009 is Rs.4,01,500/-. It is also stated that in addition to the above, the bank has incurred expenses for conducting a public auction to sell the W.P.(C) No.5140 of 2009 11 properties and other miscellaneous expenses and the said amounts are also due from the principal debtor. 12. When the writ petition came up for hearing today, Sri.Thomas M.Jacob, the learned counsel appearing for the ninth respondent submitted that the ninth respondent is willing to pay interest on the amount deposited by the petitioner herein (the auction purchaser) at 7.5% per annum for the period ending with 30.7.2012 and the petitioner is also willing to pay the sum of Rs.38,603/- paid by the bank to Sri.C.K.Chandran by way of interest pursuant to Ext.P4 judgment and the sum of Rs.33,000/- incurred by the bank by way of expenses to bring the property to sale and also deposit the sum of Rs.4,01,500/- stated to be the amount due as on 30.9.2011 calculated in terms of circular No.41/2011 and circular No.62/2011. The learned counsel appearing for the petitioner bank submitted that besides the sum of Rs.4,01,500/-, which the ninth respondent has expressed willingness to pay, he should also pay the interest for the period from 30.9.2011 till 30.7.2012, if payment were to be made on or before 30.7.2012 and if the ninth respondent is willing to pay that amount also, the bank has no objection in the sale held on 24.11.2005, being set aside or to close the loan account and return the amount deposited by the petitioner to him together with interest. The learned counsel W.P.(C) No.5140 of 2009 12 for the petitioner submitted that if the amount deposited by him is refunded with interest at 10% per annum, the petitioner has no objection to the sale being set aside. 13. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is evident from the pleadings and the materials on record that before the security furnished by respondents 8 and 9 was brought to sale on 24.11.2005, the actual amount due from the debtor and the sureties (Smt.Bindhu Eldhose and respondents 8 and 9) had not been adjudicated upon by the competent authority under the Kerala Co-operative Societies Act, 1969 namely the Arbitrator appointed under the Act. No award had also been passed quantifying their liability. The first respondent bank is not an agricultural and rural development bank and therefore, it had no right to bring the security to sale without the intervention of the Court, by recourse to the provisions contained in the Kerala Cooperative (Agricultural and Rural Development) Banks Act, 1984. The first respondent bank could have brought the properties of respondents 8 and 9 to sale only after obtaining an award. These facts were not brought to the notice of this Court in W.P.(C)No.35894 of 2004 wherein the issue that arose for consideration was the validity of a revenue sale of the mortgaged properties held by the Tahsildar, 13 W.P.(C) No.5140 of 2009 Devikulam Taluk to realise the amounts due from the eighth respondent herein under two awards passed by the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(M.V.)No.961 of 1997 and O.P. (M.V.)No.962 of 1997. Pursuant to Ext.R1(a) interim order passed by this Court on 5.9.2005 in W.P.(C)No.35894 of 2004, Ext.P3 notice dated 14.11.2005 was issued by the General Manager of the first respondent bank proposing to sell the security by public auction on 24.11.2005. The petitioner herein purchased the properties of respondents 8 and 9 in that auction for Rs.2,81,500/-. W.P.(C)No. 35894 of 2004 thereafter disposed of by Ext.P4 judgment by directing the Tahsildar to refund to the auction purchaser the amount realised in the revenue sale through the first respondent bank and the first respondent bank was directed to pay interest on that amount at 9% per annum from the date of deposit till payment to that auction purchaser. This Court also directed confirmation of the sale held by the first respondent bank on 24.11.2005 after payment is made by the first respondent bank to the auction purchaser in the revenue sale and also permitted the bank to appropriate the balance amount available with it towards the amount due from respondents 8 and 9 and the principal debtor. The ninth respondent attempted a review of Ext.P4 judgment and in that review petition Ext.R9(a) order was passed, W.P.(C) No.5140 of 2009 14 deleting the direction in Ext.P4 judgment to confirm the sale in favour of the petitioner herein. It was also observed that confirmation of the sale will be subject to applicable laws and any person aggrieved including the review petitioner (the ninth respondent) can seek appropriate remedies. 14. As noticed above, it was without noticing the fact that no award had been passed in favour of the first respondent bank and the amount due to the bank had not been quantified in a properly instituted proceedings that this Court directed that bank to sell the security by public auction. In the light of the provisions contained in the Kerala Co-operative Societies Act, as the first respondent bank is not an agricultural and rural development bank, it could not have brought the security to sale without the intervention of the court. The sale held on 24.11.2005 was not a valid sale under the provisions of the Kerala Co-operative Societies Act and the rules framed thereunder. Immovable property can be sold in execution of an award passed under the Kerala Co-operative Societies Act only after it is attached and the sale can also be held only by the Sale Officer of the bank. In the instant case, the sale was held by the General Manager himself even without an award in favour of the bank. The bank ought to have in my opinion brought to the notice of this Court that it had no power W.P.(C) No.5140 of 2009 15 to sell the security without the intervention of the court as in the case of agricultural and rural development banks and that it can recover the amounts due to it from the principal debtor and the sureties (respondents 8 and 9) only by instituting an arbitration case. In such circumstances, as the sale held on 24.11.2005 was not in accordance with the law, the petitioner cannot seek or be granted a writ of mandamus directing the officers of the co-operative department to confirm the sale held on 24.11.2005, to issue a sale certificate in his favour and to deliver over the property to him. This Court cannot by a writ of mandamus legitimize an illegal act and direct the statutory functionaries under the Kerala Co-operative Societies Act and the rules framed thereunder to confirm a sale that was held in gross violation of the provisions contained in the Kerala Co-operative Societies Act and the rules framed thereunder and to issue a sale certificate and to deliver over possession of the property to the purchaser. In such circumstances, the relief prayed for by the petitioner cannot be granted. 15. The view that I have taken should ordinarily entail a dismissal of the writ petition with a direction to the first respondent bank to refund to the petitioner the amount deposited by him together with interest. However, if such a course of action is adopted, the first W.P.(C) No.5140 of 2009 16 respondent bank will have to wait till an award is passed in its favour and thereafter bring the property to sale, if the principal debtor and sureties do not in the meanwhile, close the loan account and clear the dues of the bank. That apart, during the course of arguments today, the learned counsel appearing for the ninth respondent offered to close the loan account on the terms stated above. In such circumstances, I am of the opinion that proper course of auction would be to direct the ninth respondent to deposit the sum of Rs.38,603/- paid by the first respondent bank by way of interest to Sri.C.K.Chandran, the auction purchaser in the revenue sale, simple interest at the rate of 7.5% per annum on the sum of Rs.2,81,500/- deposited by the auction purchaser from 17.3.2006 onwards, simple interest calculated at the rate of 7.5% per annum on the sum of Rs.28,150/- being the expenses for stamp duty deposited by the petitioner from 13.3.2006 onwards and the sum of Rs.4,01,500/- being the amount due as on 30.9.2011 together with future interest thereon at 10% per annum from 1.10.2011, till date of payment and by further directing the bank to refund to the petitioner the amount deposited by him together with interest which the ninth respondent herein will deposit. I accordingly dispose of the writ petition with the following directions: W.P.(C) No.5140 of 2009 17 i. The ninth respondent shall deposit with the first respondent bank the sum of Rs.38,603/- paid by the first respondent bank to Sri.C.K.Chandran, the auction purchaser in the revenue sale held on 28.8.2003 on or before 30.7.2012. ii. The ninth respondent shall likewise deposit with the first respondent bank for payment to the petitioner, interest calculated at 7.5% per annum on the sum of Rs.2,81,500/for the period commencing from 17.3.2006 and ending with 30.7.2012 on 30.7.2012 itself. iii. The ninth respondent shall likewise deposit with the first respondent bank for payment to the petitioner interest calculated at 7.5 % per annum on the sum of Rs.28,150/for the period commencing from 13.3.2006 and ending with 30.7.2012 on 30.7.2012 itself. iv. The first respondent bank shall upon the petitioner depositing the aforesaid amounts forthwith refund to the petitioner the sum of Rs.2,81,500/- together with the interest deposited by the ninth respondent and the sum of Rs.28,150/- together with the interest deposited by the ninth respondent on the day the ninth respondent deposits the W.P.(C) No.5140 of 2009 18 amount payable by way of interest in terms of this judgment. v. The ninth respondent shall in addition to the aforesaid amounts deposit with the first respondent bank the sum of Rs.4,01,500/- stated to be the amount due as on 30.9.2011 together with future interest on the principal sum of Rs.2,00,000/- at 10% per annum calculated from 1.10.2011 onwards till 30.7.2012. vi. The ninth respondent shall in addition, deposit with the first respondent bank the sum of Rs.33,000/- being the expenses incurred by the bank to bring the property to sale. Upon the ninth respondent depositing the sum of Rs.4,01,500/- and the sum of Rs. 33,000/- together with future interest on the sum of Rs.2,00,000/- at the rate stipulated above on or before 30.7.2012, the first respondent bank shall record full satisfaction of the loan and return the documents of title deposited by respondents 8 and 9 to the respective parties. vii. The bank shall, in order to enable the ninth respondent to act as directed above, compute the amount payable by the ninth respondent by way of interest calculated at the rate of 10% per annum on the sum of Rs.2,00,000/- for the period W.P.(C) No.5140 of 2009 19 commencing from 1.10.2011 and ending with 30.7.2012. It is clarified that if the ninth respondent fails to act as directed above, it will be open to the first respondent bank to refund the amounts deposited by the petitioner and to institute appropriate proceedings against the principal debtor and respondents 8 and 9 to recover the amounts due from them. Sd/- **P.N.RAVINDRAN JUDGE** /TRUE COPY/ P.A. To JUDGE VPV