Writ petition challenging proposed sale of property seeking stay due to pending OTS application and prior court direction. Court found previous OTS applications were rejected and sale could proceed subject to confirmation abeyance.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN
FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930
WP(C).No.1464 of 2009 (Y) -------------------------------OP(FC).97/1980 of ADDL.D.C.,ALAPPUZHA. ....................
PETITIONER: ---------------
K.P.JAMAL, AGED 50 YEARS, S/O.PAREED, KOZHINJAMPARAMBIL,KANJIRAMCHIRA, ALAPPUZHA.
BY ADV. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA
RESPONDENT:
---------------
THE KERALA FINANCIAL CORPORATION, VELLAYAMBALAM, THIRUVANANTHAPURAM REP.BY ITS MANAGING DIRECTOR.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.P.BALACHANDRAN, J.
W. P. C. No.1464 of 2009
Dated this the 16th day of January, 2009
JUDGMENT
Advocate Sri.S.Sreekumar has entered
appearance for the respondent. Service is complete. Counter also has been filed by the respondent. Heard submissions of counsel on both sides.
petitioner that the first respondent is attempting to conduct sale of the property belonging to the petitioner without taking a decision on his application under the One Time Settlement Scheme (OTS) and that therefore, the sale which stands posted to 17/01/09 vide Ext.P7 order of the Addl. District Judge, Alappuzha dt.17/11/08 on E.A.132/08 in E.P.67/90 in O.P.(FC)97/1980 be stayed.
that he has filed counter along with documents
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which will go to show that the petitioner had authorised Sri.K.M.Safeer vide Ext.R1(a) dt.11/08/08 to communicate his suggestions and
views before the Manager of K.F.C in connection with the zonal committee meeting of O.T.S against his loan No.010006910/1973 with the firm/KFC; that Ext.R1(b) dt.25/08/08 shows that the petitioner is informed by the Branch Manager that the offer to pay Rs.26 lakhs under the O.T.S is very low and that they are not in a position to consider settlement of the loan account under the One Time Settlement Scheme; that Ext.R1(c) shows that the petitioner has acknowledged receipt of Ext.R1 (b) letter on 29/08/08; that Ext.R1(d) is another petition submitted by the petitioner before the Manager of the Kerala Financial Corporation, Alappuzha for settlement of loan account under the One Time Settlement Scheme wherein he offers to pay an amount of Rs.30
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lakhs; that Ext.R1(e) is the reply thereto issued by the Branch Manager of the Kerala Financial Corporation informing the petitioner that his application dt.24/10/08 (may be 24/09/08 as that is the date that Ext.R1(d) bears) was discussed with the zonal level O.T.S committee held on 29/10/08; that
Sri.K.M.Safeer has attended the meeting on his behalf and that his offer is for Rs.30 lakhs only and even though all the aspects of the loan account has been discussed with Sri.K.M.Safeer; that he was not prepared to give enhanced offer and in the circumstances, the committee is not in a position to consider settlement of account under the O.T.S scheme for Rs.30 lakhs and hence, the proposal is rejected. The said letter is received by the petitioner under Ext.R1(f) postal
acknowledgment card on 24/11/08.
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by the learned counsel for the petitioner that this Court vide judgment dt.16/05/08 in W.P.C.14648/08 has directed the respondent/ Financial Corporation to consider and pass orders on Ext.P3 within a period of one month therefrom enabling however, for the sale proposed on 21/05/08 being proceeded with, but directing that the confirmation of sale will be kept in abeyance for a period of one month to enable the respondent to take a decision on Ext.P3. According to counsel for the petitioner, Ext.P3 referred to in the judgment in W.P.C.14648/08 is a petition filed before the Managing Director of the Kerala Financial Corporation and within one month specified in the order, the respondent has not taken any decision on the said application and that therefore, the respondent is not entitled to proceed with conduct of sale of the property
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mortgaged to them. The contention that sale cannot be allowed to be conducted is unsound for the reason that even by the judgment of this Court in W.P.C.14648/08 the sale of the property was allowed to be conducted with the further direction that confirmation will be kept in abeyance for a period of one month to enable the respondent to take a decision on Ext.P3.
proposed however could not be had on 21/05/08 and that the sale now stands posted to tomorrow.
in the Writ Petition is dt.16th May, 2008 that Ext.R1(b) order is dt.25/08/08 and that order is communicated to the petitioner under Ext.R1 (c). Further, a second request made by Ext.R1 (d) offering Rs.30 lakhs under the O.T.S scheme was also rejected and Ext.R1(e) letter
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was communicated to the petitioner and that was acknowledged by him under Ext.R1(f) postal acknowledgment card on 24/11/08.
counsel is that Ext.P3 made mention of in the Writ Petition is a petition for one time settlement addressed to the Managing Director. A copy of the judgment in W.P.C.14648/08 dt.16/05/08 placed before me for perusal does not show as to what is Ext.P3 as the portion of the judgment containing the appendix is not there with the said copy of the judgment. Further, the contention cannot be correct as after the said judgment, the request for one time settlement is seen considered on two occasions by the K.F.C and the result is communicated respectively under Ext.R1(b) dt.25/08/08 and Ext.R1(d) dt.24/09/08 and that those were served also on the petitioner under acknowledgments produced as Exts.R1(c) and
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R1(f).
submits that whatever be the petition filed before the Managing Director, it is not for the Director to consider as all applications for one time settlement are considered and decided by the zonal level O.T.S committee and not either by the Branch Manager or the Managing Director and that is evident also from Ext.R1(e) communication. I see absolutely no merit in the contentions advanced before me
by the counsel for the petitioner.
K.P.BALACHANDRAN, JUDGE
kns/-
1 issue framed by the court
Whether the stay of sale of mortgaged property stems from a pending decision regarding the petitioner's One Time Settlement Scheme application.
K.P. Jamal
The Kerala Financial Corporation
K.P. Balachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
