Disposed

Sujatha, W/O.Sasankan v. Secretary, Kanayannoor Co-Oper.Agrl.Deve

Kerala HC16 Oct 2008WP(C)/13109/2008

Case brief

AI extract

What is this about?

Petitioner challenged confirmation and sale of property offered as security for a bank loan. Court rejected reliance on a subsequent circular but ordered bank to consider waiver/reduction of interest given petitioner's health, allowing set-aside of sale upon payment of fixed amount.

What did the court decide?

Bank considered to fix amount for interest waiver; sale to be set aside if amount paid within 45 days of intimation; otherwise petition dismissed.

Sujatha, W/O.Sasankan Vs Secretary… — Contract and Commercial Disputes | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN

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THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930

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WP(C).No. 13109 of 2008(I)

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PETITIONER:

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SUJATHA, W/O.SASANKAN, KOLATHERITHARA, MANNOM, PARAVOOR.

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BY ADV. SMT.VANAJA MADHAVAN.

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RESPONDENTS:

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1. SECRETARY, KANAYANNOOR CO-OPERATIVE AGRICULTURAL DEVELOPMENT BANK, PALARIVATTOM.

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2. ASST. REGISTRAR, VALUATION OFFICER, PALARIVATTOM.

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3. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVT., TRIVANDRUM.

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R2 & R3 BY GOVT. PLEADER SRI. K.C. SANTHOSH KUMAR, R1 BY ADV. SRI.P.K.VIJAYAMOHANAN, ADV. SRI.ALAN PAPALI, ADV. SRI.NISHIL.P.S, ADV. SMT.DHANYA P.ASHOKAN.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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prv.

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THOTTATHIL B. RADHAKRISHNAN, J.

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= = = = = = = = = = = = = = = = = = = = = = = =

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W.P.(C).No.13109 of 2008-I

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= = = = = = = = = = = = = = = = = = = = = = = =

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Dated this the 16^th day of October, 2008.

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JUDGMENT

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1.The petitioner offered an item of property as security for a facility availed from the first respondent, a CARD bank. On default in repayment, that property was brought to sale. Following the sale in favour of the bank itself, Ext.R1(b) was issued on 19-11-2005 and received by the petitioner on 1-12-2005 informing her that in spite of the sale, if an amount of Rs.15,37,400/with 5% statutory dues thereon is paid within 30 days therefrom, the sale will not be confirmed and that if such payment is not made, there will be no further notice or intimation and the sale will stand confirmed. On account of the nonpayment, even after that, Ext.R1(a) order was issued on 26-5-2006 by the Joint Registrar confirming the sale. I do not find any legal provision on the basis of which the petitioner could say that she was entitled to be informed of

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such confirmation of sale. At any rate, that confirmation is not invalid on account of any lack of notice to the petitioner because even in Ext.R1(b), it was clearly notified in its last paragraph that further action will follow without any further notice. There is no provision in the Kerala Co-operative Agricultural & Rural Development Banks Act, 1984 or Rules which provides for any further notice. Under such circumstances, Ext.R1(a) confirmation cannot be found fault with. Following that confirmation, in May, 2006, the sale certificate was issued and it was registered by paying necessary stamp duty etc. Nothing happened thereafter except the petitioner filing yet another writ petition and issuance of Ext.P3 judgment that any benefit available in terms of any settlement scheme shall be extended to her, if eligible. Thereafter, it appears that the petitioner moved Ext.P4 before the President of the Bank. It is also stated that she moved the Minister for Co-operation.

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2.With all the aforesaid, as of now, petitioner claims that she was entitled to the benefit of a provision in Ext.P1 circular which was issued some time after 22-12-2007. I say so because, Ext.P1 does not bear a date but it refers to an earlier circular of the Registrar of Co-operative Societies issued on 22-12-2007. The petitioner attempts to project a case that since Ext.R1(a) confirmation was not made with notice to her, the same is illegal and therefore, the status of parties has to be regulated as on the date of Ext.R1(b) whereby the sale was yet to be confirmed. If that were so, according to the petitioner, there is a provision in Ext.P1 which enjoins that sales which have not been confirmed under the CARD Act could be saved and certain ameliorative measures could be extended to the debtors. But, as already noticed, the sale stands confirmed in May, 2006. The sale certificate was issued, stamp duty paid and registered and it will be too late in the day to contend that Ext.P1 which is only a circular issued by the

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Apex Bank following the circular of the RCS issued in December, 2007 could have any impact on the sale which has become final. So much so, that contention of the petitioner fails.

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3.Be that as it may, the petitioner has projected a case that she is a chronic diabetic and had suffered certain problems to her renal functions and had even undergone surgery in relation to her renal system. It is pointed out that she, her sisters and other family members will be thrown out unless they are permitted to retrieve from the situation. Though the petitioner states that properties of other debtors could have been proceeded, the fact remains that this is the only item of property which was offered as a security.

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4.Taking overall situations into consideration the bank can consider any request of the petitioner for re-conveyance of the property on payment of amounts which it may fix by considering all relevant aspects. The sale certificate fee and

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registration fee recorded in Ext.R1(c) and any other expenditure that the bank has incurred could, in no manner, be reduced unless, of course, the bank decides to do that. However, having regard to the health status and other relevant consideration which the bank belonging to the co-operative sector could take into consideration, it is ordered that the bank will consider any request of the petitioner for waiver of any portion of the interest component and thereby reducing the sale value and interest component after 19-11-2005 for fixing the amount it would receive. If the petitioner makes remittance of the amounts as may be fixed by the bank, including the sale certificate fee, registration fee etc. as disclosed in Ext.R1(c), the confirmation of sale as per Ext.R1(a) and the sale in favour of the bank as evidenced by Ext.R1 (b) will stand set aside so that the petitioner and the bank need not spend for re-conveyance. A decision regarding the total amount on which the bank could release the property, will be taken by

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it on a proper representation from the petitioner provided such representation is made within three weeks from now. If the amount that the bank decides on is paid by the petitioner within 45 days of intimation of the amount, this judgment will operate as aforesaid. Otherwise, this writ petition will stand dismissed.

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THOTTATHIL B. RADHAKRISHNAN, JUDGE.

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Sha/161008

Sujatha, W/O.Sasankan v. Secretary, Kanayannoor Co-Oper.Agrl.Deve

Case brief

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Sujatha, W/O.Sasankan v. Secretary, Kanayannoor Co-Oper.Agrl.Deve

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