Disposed

Joy Cherian v. the Assitant Registrar

Kerala HC18 Mar 2010WP(C)/6354/2010

Case brief

AI extract

What is this about?

Petitioner challenged auction of property securing a banking loan due to arrears. Court directed installment payment of balance dues and directed the bank to consider petitioner's claim for benefits under Circular No.2/2010.

What did the court decide?

Petitioner to pay balance amount in four equal monthly instalments starting 12.4.2010; Bank directed to consider petitioner's eligibility for Circular No.2/2010 benefits.

Joy Cherian Vs the Assitant Registrar — Banking and Recovery | Kerala HC (2010)

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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 K.SURENDRA MOHAN

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THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931

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WP(C).No. 6354 of 2010(T)

PETITIONER(S):

JOY CHERIAN, S/O.LATE CHERIAN, MANJALI HOUSE, VARANDARAPPALLY,(PO) THRISSUR DISTRICT.

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BY ADV. SRI.C.E.UNNIKRISHNAN

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RESPONDENT(S):

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THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, THE ARBITRATOR CUM SPECIAL SALE OFFICER, THRISSUR DISTRICT CO-OP. BANK LTD., THRISSUR.

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THRISSUR DISTRICT CO-OP.BANK LTD. PUTHUKKAD BRANCH, REPRESENTED BY ITS GENERAL MANAGER.

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REGISTRAR OF CO-OP.SOCIETIES, THIRUVANANTHAPURAM.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.SURENDRA MOHAN, J

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WP(C).NO.6354 OF 2010

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DATED THIS THE 18TH DAY OF MARCH, 2010

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JUDGMENT

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The petitioner had availed a loan from the second respondent in the year 2003. The amount of loan that was availed was Rs.1,50,000/-.

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The loan was granted on the security of an item of property, 22 cents in

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extent that belong to the petitioner. According to the petitioner, the loan was availed of for starting a brick manufacturing unit, but due to various set backs, the unit ran into losses and payment of the instalments fell into arrears.

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In the above circumstances, the Bank filed ARC No.1142 of 2006 for recovery of the amounts due and an award was passed in favour of the Bank. Thereafter, proceedings were taken under Rule 81 (e) of the Kerala Co-operative Societies Rules for the execution of the award. According to the petitioner, the entire property is not required to be sold to satisfy the decree debt. The petitioner also contend that he is entitled to the benefit of Circular No.02/10 dated 14.1.2010 issued by the third respondent, which is Ext.P2. Therefore, the petitioner

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Wpc 6354/2010

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submitted Ext.P3 to the second respondent seeking the benefit of the said Circular. The complaint of the petitioner is that no reply has been received in response to Ext.P3. At the same time, the Bank has proceeded to conduct the auction sale of the property. The above writ

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petition was filed by the petitioner in the said circumstances.

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The counsel for the second respondent has filed a statement in

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answer to the allegations in the writ petition. As per the statement, the contention of the Bank is that they have obtained an award in ARC.No.1142 of 2006, which has become final. E.P.860 of 2009 is filed in execution of the said award. According to the Bank, the petitioner has no right to challenge the award that has already become final. The One Time Settlement Scheme introduced by Circular No.2/2010 was available till 15.3.2010. Since the petitioner did not avail of the benefit of the said Scheme, it is contended that petitioner is not entitled to claim the benefits thereof.

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I have heard Adv.C.E.Unnikrishnan for the petitioner and

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Adv.P.C.Sasidharan for the second respondent.

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According to the counsel for the petitioner, the Bank has not

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Wpc 6354/2010

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furnished the exact amount that was payable by the petitioner after waiving the interest and penal interest that they had charged. On such correct amount being furnished, he would pay the amount due in instalments. According to the counsel for the second respondent, it was up to the petitioner to have contacted the Bank and ascertained the exact amount that was due and thereafter cleared the entire dues. Since he had not done so before 15.3.2010, he is not entitled to claim the benefits of the said Circular, as the same is no longer in force.

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As per interim order dated 5.3.2010, the petitioner was directed to pay an amount of Rs.50,000/- as condition for stay of further proceedings to auction the properties of the petitioner. It is submitted by the counsel for the petitioner that the amount of Rs.50,000/- has been paid in compliance with the interim order. However, the counsel for the second respondent Bank points out that as per Ext.P1, a balance amount of about Rs.2,42,676/- is due from the Bank. The petitioner is not in a position to pay the said amount in a lump. Since the petitioner has already paid an amount of Rs.50,000/towards the amounts demanded, the petitioner can be permitted to pay

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Wpc 6354/2010

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of the balance amount in four equal monthly instalments.

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In the above circumstances, this writ petition is disposed of directing the petitioner to pay the balance amount due and payable to the second respondent, Bank in four equal monthly instalments, starting from 12.4.2010. The subsequent monthly instalments shall be paid on the 12^th of every succeeding month. If the petitioner commits default in payment of two consecutive instalments, the Bank shall be free to invite proceedings to recover the entire amount in accordance with law. The second respondent Bank is also directed to consider the eligibility of the petitioner to the benefits of Circular No.2 of 2010 as claimed in Ext.P3 and to pass orders thereon in accordance with law. If it is found that the petitioner is entitled to any benefit as per the said Circular, such benefit shall also be made available to him.

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K.SURENDRA MOHAN, JUDGE

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lgk

Joy Cherian v. the Assitant Registrar

Case brief

What is this about?

What did the court decide?

Joy Cherian v. the Assitant Registrar

Case brief

What is this about?

What did the court decide?

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