T. H. George & Others v. Kerala State Housing Federation, Regional Office, Ernakulam & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 24TH DAY OF JUNE 2016/3RD ASHADHA, 1938** **WP(C).No. 23575 of 2009 (N) ----------------------------** **PETITIONER(S):** **-------------** **1. T.H.GEORGE, MELUKAVUMATTOM P.O., KOTTAYAM DISTRICT.** *** ADDL. PETITIONER 2 TO 4 IMPLEADED** **2. MERCYKUTTY GEORGE, D/O.LATE T.H.GEORGE, PUTHENPARAMBIL HOUSE, MELUKAVU.P.O, KOTTAYAM DISTRICT.** **3. SAJAN G.JOSEPH THANNICKAL HOUSE,MELUKAVUMATTOM.P.O, KOTTAYAM DISTRICT.** **4. SELENA GEORGE,** **D/O LATE T.H.GEORGE, KAVANASSERIL HOUSE, AVOLY P.O. * IMPLEADED AS PER ORDER DTD.23.5.2016 IN IA.4795/2016.** **BY ADVS.SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU** **RESPONDENT(S):** **--------------** **1. KERALA STATE HOUSING FEDERATION, REGIONAL OFFICE, ERNAKULAM.** **2. ARBITRATOR & SPECIAL SALE OFFICER, (CO-OPERATIVE INSPECTOR), KERALA STATE HOUSING FEDERATION, KALOOR, ERNAKULAM - 17.** **3. THE MELUKAVU HOUSING CO-OPERATIVE SOCIETY, REPRESENTED BY ITS SECRETARY, MELUKAVUMATTAM P.O., KOTTAYAM DISTRICT.** **R1 BY ADV. SRI.BINU MATHEW R2 BY GOVERNMENT PLEADER SMT.T.R.RAJESH R3 BY ADV. SRI.JOSE J.MATHAIKAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 23575 of 2009 (N)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **P1 TRUE PHOTOCOPY OF THE CASTE CERTIFICATE DTD.23.7.1997 ISSUED BY THE TAHSILDAR, MEENACHIL STATING THAT THE PETITIONER BELONGS TO MALAYARAYA (ST) COMMUNITY.** - **P2 TRUE PHOTOCOPY OF THE AUCTION NOTICE DTD.25.6.2009. P3 TRUE PHOTOCOPY OF THE CIRCULAR NO.9/2009 DTD.27.2.2009 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES.** - **P4 TRUE PHOTOCOPY OF THE CIRCULAR NO.22/2009 DTD.22.5.2009 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES.** - **P5 TRUE PHOTOCOPY OF THE SAID LETTER NO.C.G.(2) 12001/09 DTD.24.6.2009.** - **P6 TRUE PHOTOCOPY OF THE REPRESENTATION DTD.10.8.2009 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.** - **P7 TRUE PHOTOCOPY OF THE REPRESENTATION DTD.10.8.2009 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** - **P8 TRUE PHOTOCOPY OF THE APPLICATION DTD.18.7.2009 SUBMITTED BY THE PETITIONER TO THE TAHSILDAR, MEENACHIL.** - **P9 TRUE PHOTOCOPY OF THE ENQUIRY REPORT DTD.25.7.2009 SUBMITTED BY THE VILLAGE OFFICER.** - **P10 TRUE PHOTOCOPY OF THE ENQUIRY REPORT DTD.25.7.2009 SUBMITTED BY THE VILLAGE OFFICER.** - **P10 TRUE COPY OF THE CIRCULAR NO.55/2006 ISSUED BY THE REGISTRAR** **RESPONDENT(S)' EXHIBITS:** **------------------------** **EXT.R3(a): TRUE COPY OF AWARD DTD.27.4.2001.** **EXT.R3(b): TRUE COPY OF CIRCULAR NO.61/2009 DTD.18.12.2009. EXT.R3(c): TRUE COPY OF CIRCULAR NO.22/2015 DTD.21.4.2015. EXT.R3(d): TRUE COPY OF CIRCULAR NO.14/2016 DTD.26.5.2016.** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C). No.23575 of 2009 ----------------------------------------------Dated this the 24[th] day of June, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P2 auction notice, whereby the 3[rd] respondent has notified the property of the petitioner for sale in view of the award secured by the 3[rd] respondent against the petitioner during the pendency of this writ petition and for other related reliefs. During the pendency of the writ petition, petitioner Sri.T.H. George died. Consequently petitioners 2 to 4, who are his wife and children are impleaded as additional writ petitioners. 2. Material facts for the disposal of the writ petition are thus; petitioner, late Sri.T.H.George availed a housing loan of Rs.1,00,000/- from the 3[rd] respondent society in the year 1996 for the purpose of his house construction. The repayment of the loan was fixed as 15 years (incorrectly stated as 10 years). On 15.07.2009, petitioner received Ext.P2 auction notice issued by the 2[nd] respondent declaring that 15 cents of land W.P.(C). No.23575 of 2009 2 and the house situated therein will be put for public auction on 20.08.2009. It is the contention of the petitioner that, petitioner has understood from Ext.P2 auction notice, 3[rd] respondent filed an arbitration case against the petitioner in the year 2001 and secured an award entitling the 3[rd] respondent to recover an amount of Rs.1,85,411/- from the petitioner. That apart it is contended by the petitioner that petitioner did not receive any notice or summons from the Arbitrator or the 3[rd] respondent. Apart from the same, it is contended, for the purpose of recovery of the said amount, entire property need not be put to auction and the auction proceedings are guided by the provisions of the Co-operative Societies Act and Rules and therefore, the entire action of the 2[nd] and 3[rd] respondents are illegal. 3. That apart it is contended that the petitioner is belonging to Schedule Tribe community and by virtue of the Government notifications and circulars, petitioner is entitled to get reduction in repayment of the loan amounts secured from the 3[rd] respondent bank. Having not provided with the W.P.(C). No.23575 of 2009 3 benefits contained under the Government notification and circulars, petitioner has approached this court seeking to ventilate his grievances. 4. The 3[rd] respondent has filed a counter affidavit basically contending that petitioner is not entitled to get the benefits of the circulars relied on by the petitioner. However, the Registrar of Co-operative Societies has issued Ext.R3(b) circular bearing No.61/09 providing certain benefits to members of Scheduled Caste/Scheduled Tribe and converted Christians. But it is contended, petitioner is not entitled to get the benefit of the said circular due to the reason that the said circular is applicable only to loanees, whose period of loan was over by 31.3.2006. In the case of the petitioner, petitioner had a period of 15 years from 1996 and therefore, petitioner is not entitled to seek the benefit of the said notification. It is also contended that since the 3[rd] respondent has secured Ext.R3(a) award from the Arbitrator, petitioner is bound by the same and is liable to pay the entire amount covered under Ext.R3(a). W.P.(C). No.23575 of 2009 4 5. Petitioner has filed a reply affidavit reiterating the contentions raised in the writ petition and also producing Ext.P10 document dated 30.11.2006, which is a circular issued by the Registrar of Co-operative Societies bearing No.55/2006 and contended, petitioner is entitled to get the benefits provided thereunder. Learned counsel for the 3[rd] respondent has produced Ext.R3(d) circular bearing No.14/2016 along with an additional counter affidavit and contends that petitioner is entitled to get the benefits covered under the said circular alone. 6. Reckoning the facts and circumstances stated above and also the arguments advanced by the respective counsel and perusing the pleadings and documents on record, the question to be considered is whether petitioner is entitled to get the benefit of any notification as claimed by the petitioner ? The prime objection raised by the 3[rd] respondent is that, since the loan period was over, petitioner is not entitled to get the benefit of Ext.R3(b) circular. The said question was considered by a Division Bench of this Court in W.P.(C). No.23575 of 2009 5 ## **Raju M. Thomas v. Urban Co-operative Bank Ltd.** [2013 (3) KLT 417] vis-a-vis the Agricultural Debt Waiver and Debt Relief Scheme, 2008 and held as follows in paragraph 5; “We have considered the rival contentions in detail. Admittedly, the bank had filed the A.R.C. for recovery of the entire loan amount with interest on 28.3.2007. The bank cannot file an A.R.C. for recovery of the entire loan amount, unless the repayment of loan has become overdue. If only the interest was overdue, the bank could have only sought to recover the interest alone by resorting the appropriate proceedings. Once the bank has decided to terminate the loan agreement and to recall the loan, that essentially means that, the entire loan amount has become overdue. There is no logic in saying that the loan amount has not become overdue as on 31.12.2007 after filing an A.R.C. to recover the entire loan amount on 28.3.2007. Therefore, we do not find any merit in the contention of the 2[nd] respondent bank that in view of clause 4(1)(b)(i) of the Scheme, the loan amounts have not become overdue as on 31.12.2007.” W.P.(C). No.23575 of 2009 6 7. On a reading of the said judgment, it is categoric and clear that if and when the society has secured an award during the currency of the loan period, such persons are entitled to get benefit of the scheme, irrespective of the termination of loan period. Therefore, such contention raised by the learned counsel for the 3[rd] respondent is not legally sustainable. 8. However, learned counsel for the 3[rd] respondent has contended that the benefits of Ext.R3(b) circular is no more in force and the circular that is available for the benefit of the petitioner is R3(d). According to the learned counsel for the petitioner, such circular is less beneficial than Ext.R3(b). That apart, it is also contended that in view of Ext.P10 circular, petitioner is entitled to get the provided benefit thereunder. However to Ext.P10 circular, learned counsel for the 3[rd] respondent contented that, that circular is applicable only with respect to loans with repayment period of 5 years. 9. When this writ petition is admitted to the files of this court, stay of recovery proceedings pursuant to Ext.P2 was W.P.(C). No.23575 of 2009 7 granted and the same is still in force. In my considered opinion, additional petitioners, to their best interest and advantage will be at free and at liberty to approach the 3[rd] respondent bank and file suitable application seeking benefit of the relevant circulars or notifications issued by the Registrar of Co-operative Societies with respect to settlement of loan transactions either general or specific in favour of the Scheduled Tribes/Schedule Castes or converted Christians. On filing such application, the 3[rd] respondent shall apply the maximum beneficial notification in favour of the additional petitioners and settle the loan transaction accordingly. 10. In order to enable the 3[rd] respondent to proceed with such a course of action, additional petitioners shall submit a representation within a period of two weeks from the date of receipt of a copy of this judgment and thereafter the 3[rd] respondent shall take a decision on the same within a period of one month thereafter, after providing an opportunity of hearing to any of the additional petitioners. Needless to say, the 3[rd] respondent shall take into consideration the judgment W.P.(C). No.23575 of 2009 8 of the Division Bench referred supra and any other notification issued by the Government with respect to settlement of Debt Waiver Scheme available during the pendency of the proceedings before the 3[rd] respondent. Writ petition is disposed of accordingly. Till such time, as directed above, recovery proceedings pursuant to Ext.P2 shall be kept in abeyance. Sd/- **SHAJI P. CHALY JUDGE** smv 24.06.2016