Allowed

A.P. Muhammed v. the South Malabar Gramin Bank

Kerala HC4 Mar 2013CRP/67/2013

Case brief

AI extract

What is this about?

In a revision against an order refusing waiver of a decretal amount under the Agricultural Debt Waiver and Debt Relief Scheme, 2008, the High Court held that the executing court must examine the applicability of the Scheme and the plea of loan renewal.

What did the court decide?

Order dated 03.12.2012 in E.P. No.305 of 2010 in O.S. No.266 of 2008 set aside; execution petition remitted for fresh decision.

A.P. Muhammed Vs the South Malabar Gramin Bank — Execution and Attachment | Kerala HC (2013)

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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 THOMAS P.JOSEPH

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MONDAY, THE 4TH DAY OF MARCH 2013/13TH PHALGUNA 1934

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CRP.NO. 67 OF 2013 ()

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E.P.NO.305 OF 2010 IN O.S. NO.266 OF 2008, MUNSIFF'S COURT, PARAPPANANGADI

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REVISION PETITIONER/IST JUDGMENT DEBTOR:

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A.P. MUHAMMED,

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S/O BEERANKUTTY, ANGANTEPURAKKAL, SADDAM BEACH P.O. NEDUVA, PARAPPANANGADI MALAPPURAM DISTRICT-676 303.

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BY ADV. SRI.K.K.MOHAMED RAVUF

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RESPONDENT(S)/DECREE HOLDER AND 2ND JUDGMENT DEBTOR:

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1. THE SOUTH MALABAR GRAMIN BANK, PARAPPANANGADI BRANCH, REPRESENTED BY MANAGER PARAPPANANGADI AMSOM DESOM, IRURANGADI TALUK MALAPPURAM DISRICT, PIN:676 302.

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2. ISMAIL,

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S/O A.P. MOHAMMED, SADDAM BEACH, ANGANEPURAKKAL P.O. NEDUVA, PARAPPANANGADI MALAPPURAM DISTRICT-676 303.

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R1 BY ADV. SRI.T.R.RAVI, SC, S.MALABAR G. BANK

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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

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C.R.P. No.67 of 2013

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

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Dated this the 04^th day of March, 2013

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O R D E R

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Order dated 03.12.2012 in E.P. No.305 of 2010 in O.S.No.266 of 2008 of Munsiffs Court, Parappanangadi refusing prayer for petitioner/judgment debtor for waiver of amount claimed by the 1^st respondent-decree holder based on the Agricultural Debt Waiver and Debt Relief Scheme, 2008 (for short, “the Scheme”) is under challenge.

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First respondent has obtained a decree for recovery of money against petitioner and proceeded against petitioner for realization of the said amount. Petitioner contended that he being a fisherman is entitled to the benefit of the Kerala Fishermen Debt Relief Commission Act (for short, “the Act”) and further, that the liability stands waived by the Scheme. It appears that in the executing court his contention based on the Act was not pursued. Based on the evidence of P.W.1, Manager of the 1^st respondent, the executing court found against waiver pleaded as per the Scheme.

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It is contended by the learned counsel for petitioner

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C.R.P.No.67 of 2013

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-: 2 :-

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that in view of clause 4 of the Scheme, petitioner is entitled to waiver of the amount since the loan in this case was availed on 16.06.2006. According to the learned counsel, though respondent claimed that there was a renewal of the loan on 25.07.2007, no document was produced either on the trial or execution side in support of that contention. Hence the executing court ought to have found in favour of petitioner. According to the learned counsel, even if there is renewal of the loan on 25.07.2007 petitioner is entitled to waiver in view of clarification issued by the Ministry of Finance, Government of India on 28.05.2008.

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The learned counsel for 1^st respondent contended that since the loan was renewed on 25.07.2007, petitioner is not entitled to the benefit of the Scheme.

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Though learned counsel for the 1^st respondent has raised a contention that the question cannot be urged in execution, in view of the decision in Jammu Rural Bank v.

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Mohd. Din (AIR 2009 SC 51) where a scheme was applied in execution of the decree and that was confirmed by the Supreme Court, the said contention of 1^st respondent cannot be

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C.R.P.No.67 of 2013

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accepted. If petitioner is otherwise entitled to the protection of the Scheme, the 1^st respondent is not entitled to realize the amount.

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One question which is required to be decided is whether there was renewal of the loan on 25.07.2007. It is seen from the order under challenge that as regards renewal what is available is only evidence of P.W.1. He did not produce any document to prove renewal on 25.07.2007. Learned counsel has given me a copy of plaint and judgment. There, there is no reference to the renewal on 25.07.2007. In that view of the matter, I am inclined to think that 1^st respondent was required to produce relevant documents to show renewal of the loan on 25.07.2007. The executing court is also to consider whether, if there was a renewal on 25.07.2007 petitioner would be entitled to the benefit of the Scheme in view of the clarification above stated.

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Learned counsel for petitioner has also a contention that question of renewal cannot be gone into in execution since that is not pleaded or answered on the trial side. That contention cannot be accepted. Application of the Scheme itself is to be considered by the executing court. In

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C.R.P.No.67 of 2013

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-: 4 :-

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considering that, it is open to the executing court to consider the plea of renewal as well. In the circumstances, I am inclined to interfere with order.

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Resultantly, the Civil Revision is allowed as under:

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(i) Order dated 03.12.2013 in E.P.No.305 of 2010 in O.S. No.266 of 2008 of Munsiff's Court, Parappanangadi is set aside.

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(ii) E.P. No.305 of 2010 is remitted to the learned Munsiff for fresh decision after giving both sides opportunity to adduce evidence as regards application of the Scheme.

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THOMAS P. JOSEPH, JUDGE.

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vsv

A.P. Muhammed v. the South Malabar Gramin Bank

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A.P. Muhammed v. the South Malabar Gramin Bank

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