High Court of KeralaSingle Judge2012-02-27Disposed of with directions for consideration o...

T.J. Jose v. Kerala Financial Corporation and Others

Case / Petition Number:W.P.(C) No.13254/2011 (F)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V. Chitambaresh
Judgment Date: 2012-02-27
Court Decision / Holding: Writ petition disposed of with directions: the KFC Board shall consider the petitioner’s detailed representation within two months from the date of receipt, after giving notice and hearing; the petitioner shall be granted the maximum concession under the recovery policy in force at the time of the appropriation; any excess recovered will be refunded following completion of the exercise, and pledged documents shall be released upon clearance of liability.
Final Disposition: Disposed of with directions for consideration of OTS/CSS and grant of maximum permissible concessions while refunding any excess and releasing pledged documents.

Parties to the Case

Appellants / Petitioners

T.J. Jose

Respondents

The Kerala Financial Corporation, Thrissur
The Kerala Financial Corporation, Thiruvananthapuram
The Zonal Manager, Kerala Financial Corporation, Ernakulam
The Deputy Tahsildar (RR), KFC, Thrissur District
National Highways Authority of India
Addl. State of Kerala represented by Chief Secretary to Government (Addl.6)

Legal Representation & Advocates

Counsels for Petitioners

• Sri M.P. Ashok Kumar

Counsels for Respondents

• Sri M.M. Sayed Muhammed, SC, KFC
• Sri K. Jaju Babu, SC, Kerala Financial Corporation
• Sri Thomas Antony
• Government Pleader

Case Synopsis & Summary

The Thermadom Auditorium, a prominent structure beside NH-47, was partially acquired for highway widening, resulting in the owner losing 17 cents of his 45-cent property. In this writ petition, the petitioner challenges the Kerala Financial Corporation’s denial of benefits under the One Time Settlement (OTS) / Compromise Settlement Scheme and alleges discrimination in grant of concessions. He borrowed Rs 25.5 lakhs to construct the auditorium, and relies on Exts.P4, P2, and P3 to argue that heavy concessions were granted to other loanees and that recovery policies were not uniformly applied. The KFC contends the petitioner did not submit a concrete proposal despite multiple opportunities and that concessions would be extended only upon a firm offer. The court recalls Usmatech Textile Engineers Pvt. Ltd. v. The Branch Manager, K.F.C. Ltd., noting that similarly situated loanees must be treated alike and discretionary power cannot be exercised discriminatorily. It also notes appropriation of Rs.50,74,178 from compensation towards KFC dues as ordered by the District Collector, under Ext.P9, and directs that, after receipt and hearing, the Board of Directors consider the petitioner’s representation within two months and grant the maximum concession permitted by the policy in force at the time of appropriation, with any excess to be refunded and pledged documents released on clearance of liability.

Legal Doctrines & Maxims

Discretionary power must not be exercised discriminatorily or capriciously.
Equality of treatment for similarly situated loanees under recovery schemes.
Instrumentality of the State must act in accordance with established policies and non-arbitrary considerations.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that he has been discriminated against in denying OTS/CSS benefits under the KFC recovery policies, as others have received concessions under Ext.P4, Exts.P2 and P3. He asserts that Ext.P4 demonstrates favourable treatment to other loanees, and that the recovery policies should apply uniformly. He requests the court to direct the KFC to consider a firm representation under the OTS/CSS scheme, grant maximum permissible concessions, and ensure payment of any excess recovered. He emphasizes that his disability due to NH road widening impeded timely payments and seeks parity with others who received concessions.

Contentions of Respondents

The KFC argues that the petitioner failed to submit a concrete proposal despite several opportunities and that concessions would be granted only on a firm offer. It contends that while relief has been extended to some loanees (as in Exts.P16, P17 context), decisions are made case by case with regard to repayment structure. It asserts that the District Collector’s order directing appropriation of compensation towards KFC dues was proper and that the petitioner's claim to broader OTS benefits should be conditioned on a formal, definite proposal. The Respondents maintain readiness to extend concessions if a firm proposal is made and rely on Exts.P2, P3 as governing policy.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Usmatech Textile Engineers Pvt. Ltd. v. The Branch Manager, K.F.C. Ltd & Ors	2009 (1) KLJ 83	Positive	Cited to support that similarly situated loanees must be treated alike and that discretionary power cannot be exercised discriminatorily.
W.P.(C) No.18340/2010	W.P.(C) No.18340/2010	Mentioned Only	Referenced as a related judgment; no explicit treatment details provided in the present document.
W.P.(C) No.1048/11	W.P.(C) No.1048/11	Mentioned Only	Cited as a related decision; no direct ruling cited within this document.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH MONDAY, THE 27TH DAY OF FEBRUARY 2012/8TH PHALGUNA 1933 WP(C).No. 13254 of 2011 (F) --------------------------- PETITIONER(S): - ------------- T.J.JOSE, THERMADAM HOUSE, CHEMBUTHARA, PATTIKKAD, THRISSUR. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENT(S): -------------- 1. THE KERALA FINANCIAL CORPORATION, THRISSUR, REPRESENTED BY ITS CHIEF MANAGER PIN 680 001. 2. THE KERALA FINANCIAL CORPORATION, VELLAYAMBALAM, THIRUVANANTHAPURAM REPRESENTED BY ITS CHAIRMAN, PIN 695001. 3. THE ZONAL MANAGER, KERAL FINACIAL CORPORATION, ERNAKULAM- 682001. 4. THE DEPUTY TAHSILDAR (RR), KFC, THRISSUR DISTRICT- 680001. 5. NATIONAL HIGHWAYS AUTHORITY OF INDIA, OFFICE OF THE PROJECT DIRECTOR NO.8/1187 ARUMUGAN COLONY, CHANDRANAGAR, PALAKKAD-678007. - ADDL.6. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIATE, THIRUVANANTHAPURAM. - (ADDL. R6 IS IMPLEADED AS PER ORDER DT. 5.7.2011 IN I.A.NO.10284/2011) R,R1-3 BY SRI.M.M.SAYED MUHAMMED, SC, KFC R,R5 BY SRI.THOMAS ANTONY R,R3 BY SRI.THOMAS ANTONY R, BY GOVERNMENT PLEADER R1-R3 BY SRI.K.JAJU BABU,SC,KERALA FINANCIAL COR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX IN W.P.(C) NO.13254 OF 2011 EXT.P1 PHOTOCOPY OF THE ADVERTISEMENT IN MATHRUBHOOMI DAILY DATED 5.6.2010 EXT.P2 PHOTOCOPY OF THE RECOVERY POLICY FOR THE YEAR 2007-2008 DATED 13.9.2007 EXT.P3 PHOTOCOPY OF THE CIRCULAR NO.59 DATED 1.12.2007 EXT.P4 PHOTOCOPY NOF THE MINUTES OF THE 546TH MEETING HELD ON 25.7.2008 EXT.P5 PHOTOCOPY OF THE MINUTES DATED 17.12.2007 EXT.P6 PHOTOCOPY OF THE DEMAND NOTICE DATED 4.6.2009 EXT.P7 PHOTOCOPY OF THE LETTER DATED 9.12.2009 EXT.P8 PHOTOCOPY OF THE LETTER DT. 10.5.2010 EXT.P9 PHOTOCOPY OF THE JUDGMENT IN W.P.(C) NO.18340/2010 DATED 28.6.2010 EXT.P10 PHOTOCOPY OF THE REPRESENTATION DATED 17.8.2010 EXT.P11 PHOTOCOPY OF THE PROCEEDINGS DATED 8.10.2010 EXT.P12 PHOTOCOPY OF THE ORDER DATED 24.11.2010 EXT.P13 PHOTOCOPY OF THE REQUEST DATED 11.12.2010 EXT.P14 PHOTOCOPY OF THE ORDER DATED 31.3.2011 EXT.P15 PHOTOCOPY OF THE PROPOSAL DATED 11.2.2011 SUBMITTED BY THE PETITIONER. EXT.P16 PHOTOCOPY OF THE JUDGMENT IN W.P.(C) NO.1048/11 DATED 17.2.2011 - EXT.P17 PHOTOCOPY OF THE ORDER DATED 11.3.2011 PASSED BY THE FIRST RESPONDENT. - EXT.P18 PHOTOCOYP OF THE CONSENT LETTER DATED 23.10.2010 GIVEN BY THE PETITIONER. - EXT.P19 PHOTOCOPY OF THE LETTER DATED 23.2.2011 EXT.P20 PHOTOCOPY OF THE LETTER DATED 21.5.2011 EXT.P21 PHOTOCOPY OF THE PROCEEDINGS NO.110219710/2190/2011 DATED 11.3.2011. - EXT.P22 PHOTOCOPY OF THE SKETCH SHOWING THE DETAILS OF PROPERTY AGREED TO SELL BY THE PETITIONER. W.P.(C) NO.13254/2011 : 2 : - EXT.P23 PHOTOCOPY OF THE DEMAND NOTICE ISSUED BY THE KERALA FINANCIAL CORPORATION DATED 1.10.2011 ## RESPONDENTS EXHIBITS: - EXT.R1(A) TRUE PHOTOSTAT COPY OF THE LETTER DATED 9.12.2009 OF THE KERALA FINANCIAL CORPORATION ASKING THE PETITIONER TO REMIT OTS ADVANCE. - EXT.R1(B) TRUE PHOTOSTAT COPY OF LETTER DATED 17.8.2010 SUBMITTED BY THE PETITIONER BEFORE THE KERALA FINANCIAL CORPORATION OFFERING RS.45.00 LAKHS AS OTS AMOUNT. - EXT.R1(C) TRUE PHOTOSTAT COPY OF LETTER DATED 8.10.2010 SENT BY THE K.F.C. TO THE PETITIONER DEMANDING TO ENAHNCE HIS CSS OFFER. - EXT.R1(D) TRUE PHOTOSTAT COPY OF LETTER DATED 23.10.2010 SENT BY THE PETITIONER TO THE TAHSILDAR (LAND ACQUISITION) - EXT.R1(E) TRUE PHOTOSTAT COPY OF THE LETTER DATED 24.11.2010 ISSUED BY THE KERALA FINANCIAL CORPORATION TO THE PETITIONER. - EXT.R1(F) TRUE PHOTOSTAT COPY OF THE LETTER DATED 24.11.2010 ISSUED BY THE K.F.C. TO THE SPL. TAHSILDAR, N.H.D.P., THE 4TH RESPONDENT. - EXT.R1(G) TRUE PHOTOSTAT COPY OF PROPOSAL DATED 11.2.2011 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. - EXT.R4(a) A TRUE COPY OF THE LETTER FROM CHIEF MANAGER, KFC DATED 24.11.2010 //TRUE COPY// P.S. TO JUDGE. ## **V.CHITAMBARESH, J.** ------------------------------- ## **W.P.(C) No.13254 of 2011** ------------------------------- **Dated this the 27[th] day of February, 2012** ## **J U D G M E N T** ' _Thermadom Auditorium_ ' which was a prominent structure on the side of NH-47 was sliced into two and a portion of the property acquired for widening the National Highway. The petitioner who is the owner of the Auditorium lost 17 cents out of 45 cents in that process. The issue raised in this writ petition relates to the arbitrary denial of the benefits of the One Time Settlement (Compromise Settlement Scheme) of Kerala Financial Corporation (hereinafter referred to as 'the KFC' for short). The petitioner had availed of Rs.25.5 lakhs as loan from the KFC for constructing the Auditorium. 2. The petitioner relies on Ext.P4 proceedings of the KFC to contend that heavy concessions have been granted in respect of other loanees. The petitioner highlights the fact that he has been discriminated in the matter of granting concession and that the principles in Exts.P2 and P3 recovery policies are not adhered to. The KFC on the other hand contends that the W.P.(C) No.13254 of 2011 2 petitioner did not make a concrete proposal despite several opportunities granted. The KFC further submits that it is eager and willing to extend all benefits/concessions to the petitioner provided a firm offer is made. ## 3. This Court has in **Usmatech Textile Engineers Pvt. Ltd. v. The Branch Manager, K.F.C. Ltd & Ors** (2009 (1) KLJ 83) has occasion to observe as follows:- _“17. .........In this context, I should also make reference to Exts.P16 & P17 proceedings of the respondent Corporation itself, produced by the petitioner, where about 200 similar defaulters have been given the benefit of OTS scheme and the petitioner has in specific terms contended that they have been discriminated. In the counter affidavit filed, this contention of the petitioner is sought to be brushed aside by making a general and vague statement that each case is to be dealt with on its own merit. It may be true that there is an element of discretion conferred on the respondents. But, it being an instrumentally of state, cannot exercise the discretionary power discriminatively or capriciously.”_ W.P.(C) No.13254 of 2011 3 I subscribe to the same views and hold that the petitioner is entitled to a similar treatment as was extended to other loanees. The petitioner may therefore submit a detailed representation giving up the break up of the payments made and the recovery policies existing. The Board of Directors of th KFC shall consider the representation so submitted within a period of two months from the date of receipt of a copy of the representation. The petitioner shall be put on notice and heard before the Board of Directors takes a final decision. 4. Yet another grievance of the petitioner is the appropriation of a sum of Rs.50,74,178/- by the KFC from the compensation amount payable towards the land acquisition. The petitioner asserts that the fourth respondent Tahsildar (LA) exceeded his authority in so transferring the compensation amount to the KFC directly without effecting payment to the petitioner. But I find that the amount was so transferred as ordered by the District Collector on 29.11.2010 in tune with Ext.P9 judgment in W.P.(C) No.18340 of 2010. The same reads W.P.(C) No.13254 of 2011 4 ## as follows:- _“5. ......On receipt of the amount as above, the application preferred by the petitioner for the benefit of 'OTS'/'CSS' shall be considered and the balance liability to be cleared by the petitioner shall be let known to the petitioner as well as the 2[nd] respondent, on which event, the requisite amount as above left at the hands of the 2[nd] respondent shall be released directly to the KFC, with proper intimation to the petitioner.”_ Neither the KFC nor the fourth respondent Tahsildar can therefore be faulted for appropriating the compensation amount towards the dues to the KFC. 5. A sizeable amount has been realised by the KFC by appropriation of the compensation amount. It is only just and fair that the petitioner is given the maximum concession as per the recovery policy existing as on the date of appropriation. This is particularly so since the petitioner was disabled from making payments in time due to acquisition of the Auditorium which was the source of money for repayment. The amount, if W.P.(C) No.13254 of 2011 5 any, recovered in excess will be refunded to the petitioner after completing the exercise as directed above. Needless to mention that the documents pledged by the petitioner would be released to him on clearing the liability in compliance with the directions stated above. **V.CHITAMBARESH, Judge.** nj. ## **V.CHITAMBARESH, J.** -------------------------------------- W.P.(C) No. 13254 of 2011 ## **JUDGMENT** Dated:- 27[th] February, 2012 --------------------------------------