Disposed

P.Prasad Kumar v. the Kannur District Co-Op. Bank Ltd.

Kerala HC23 Mar 2010WP(C)/7539/2010

Case brief

AI extract

What is this about?

The Kerala High Court disposed of a writ petition challenging bank recovery statements. It held that correctness of amounts due must be agitated in pending execution proceedings. The petitioner was directed to raise objections before the Sale Officer, who can defer the sale to consider such contentions.

What did the court decide?

Petitioner directed to raise contentions regarding the correctness of the amount claimed before the Sale Officer in pending execution proceedings.

P.Prasad Kumar Vs the Kannur District Co-Op. Bank Ltd. — Execution and Attachment | 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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TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932

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WP(C).No. 7539 of 2010(N)

PETITIONER(S):

P.PRASAD KUMAR, PREMIER OIL COMPANY, POOKKOTHUTHERU, THALIPARAMBA, KANNUR DISTRICT.

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BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA

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RESPONDENT(S):

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THE KANNUR DISTRICT CO-OPERATIVE BANK LIMITED, THALIPARAMBA BRANCH,THALIPARAMBA, KANNUR DISTRICT.

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THE SALE OFFICER, (ASSISTANT REGISTRAR) KANNUR DISTRICT CO-OPERATIVE BANK KANNUR.

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BY GP K C SANTHOSH KUMAR

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.SURENDRA MOHAN, J

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WP(C).NO.7539 OF 2010

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DATED THIS THE 23^rd DAY OF MARCH, 2010

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JUDGMENT

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The petitioner had availed of two loans of Rs.2,00,000/- and Rs.3,00,000/- each as loans from the first respondent Bank in the year 1992 and 1994 respectively. The complaint of the petitioner is that though he had remitted substantial amounts in repayment of the loans, all the amounts paid by him have not been given credit to by the first respondent Bank. Therefore, he had sought for the issue of true copies of the statement of accounts to him. He had also approached this court by filing WP(C) No.2259 of 2008. As per Ext.P3 judgment, this court had directed the first respondent Bank to issue such statements to the petitioner. Exts.P6 and P7 are the statements issued by the Bank. However, according to the petitioner, the statements are not legible. Therefore, Ext.P9 statement was issued by the second respondent pursuant to Ext.P8 judgment, the judgment in another writ petition filed by the petitioner voicing similar grievances. The petitioner objected to Ext.P9 by submitting Ext.P10 letter. However, without considering the

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Wpc 7539/2010 2

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objections or explaining the entries in Ext.P9 statement of accounts, Ext.P11 notice has been issued by the second respondent Sale Officer. As per Ext.P11, the property of the petitioner has been notified for sale on 15.3.2010. It is submitted that the sale has subsequently been adjourned to 29.3.2010.

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According to the counsel for the petitioner, the Bank is bound to explain the entries in Ext.P9 and to establish that the amounts claimed are actually due and payable by him. He also expressed doubt as to whether due credit has been given to all payments made by him.

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Adv.P.Narayanan, who appears for the first respondent Bank points out on the other hand that due credit has been given for all payments made by the petitioner. The interest has been charged only at the rates agreed upon. According to the counsel, ARC 102 of 2004 was filed for recovery of the amounts due from the petitioner. The case was tried and an award has been passed, finding that the Bank was entitled to recover the amounts from the petitioner. Pursuant to the award, E.P.320 of 2000 has been filed by the first respondent before the second respondent. As on 1.3.2010, an amount of Rs.6,55,093/- is

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Wpc 7539/2010

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payable by the petitioner. It is for the said amount that the property has been ordered to be sold by the second respondent. Since Ext.P11 has been issued pursuant to orders issued by the second respondent in execution proceedings, it is pointed out that it is not open to the petitioner to file this writ petition agitating matters that could be determined in the execution proceedings.

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I have heard the counsel for the respective parties. I have also considered the rival contentions anxiously.

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It is not in dispute that execution proceedings are pending before the second respondent for execution of the award passed in favour of the first respondent Bank. Ext.P11 sale has been notified pursuant to the orders of the second respondent in execution. Therefore, any objection of the petitioner regarding the correctness of the amount that it sought to be recovered can be agitated effectively before the second respondent in execution proceedings. It is not necessary for this court to go into the correctness of the figures of Exts.P6,P7 and P9 in exercise of the jurisdiction under Article 226 of the Constitution.

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Wpc 7539/2010 4

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In the above circumstances, this writ petition is disposed of directing the petitioner to raise all his contentions regarding the correctness of the amount claimed by the first respondent Bank, before the second respondent in execution proceedings pending before him. In the event of such issues being raised, the second respondent shall decide the sale before proceeding to recover the amounts that are sought to be recovered through sale of petitioner's property. The second respondent is free to stipulate any conditions subject to which the sale may be deferred for considering the said objections.

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K.SURENDRA MOHAN, JUDGE

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lgk

P.Prasad Kumar v. the Kannur District Co-Op. Bank Ltd.

Case brief

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P.Prasad Kumar v. the Kannur District Co-Op. Bank Ltd.

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