Partly allowed

Abdul Rahiman v. the General Manager, Kasaragod Co-Operative Town Bank Ltd.

Kerala HC21 Nov 2016OP(C)/2375/2016

Case brief

AI extract

What is this about?

The High Court, considering a writ petition filed to stay execution proceedings for the sale of mortgaged property, declined to quash the sale proclamation. The court stayed the execution for a period and directed the petitioner to repay the loan in seven equal monthly installments.

What did the court decide?

Continuation of execution proceedings was stayed for seven months to allow payment of the loan amount via equal monthly installments, commencing from the first Monday in December 2016 and ending on Ju

Abdul Rahiman Vs the General Manager… — Contract and Commercial Disputes | Kerala HC (2016)

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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.RAMAKRISHNAN

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MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938

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OP(C).No. 2375 of 2016 (O) --------------------------EP 363/2015 OF PRL.MUNSIFF'S COURT, KASARAGOD ---------------

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PETITIONER:

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ABDUL RAHIMAN, AGED 63 YEARS, S/O. Y MOOSA, CHALAKUNNIL HOUSE, NAIMARMOOLA, VIDYANAGAR POST, KASARGOD VILLAGE, KASARGOD.

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BY ADV. SRI.S.JIJI

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RESPONDENT:

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THE GENERAL MANAGER, KASARAGOD CO-OPERATIVE TOWN BANK LTD, NO. 970, KASARAGOD VILLAGE, VIDYANAGAR P.O. KASARGOD-671123.

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BY ADVS. SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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OP(C).No. 2375 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS ----------------------EXT. P1 TRUE COPY OF THE E.P. NO. 363/2015 DATED 11.11.2015. EXT. P2 TRUE COPY OF THE SALE PROCLAMATION AND PETITION DATED 27.6.2016. EXT. P3 TRUE COPY OF THE COUNTER DATED 28.7.2016. EXT. P4 TRUE COPY OF THE MEMO DATED 28.7.2016. RESPONDENT(S)' EXHIBITS NIL

/TRUE COPY/

P.A.TO JUDGE

K.V.

K.RAMAKRISHNAN, J.

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O.P.(C) No.2375 of 2016

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Dated this the 21^st day of November, 2016

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JUDGMENT

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This petition has been filed by the petitioner seeking intervention of this court to stay the proceedings in E.P.363/2015 of Principal Munsiff Court, Kasaragod under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioner had taken a personal loan of Rs.5,00,000/- on security of furnishing 14.5 cents of land and building therein to the respondent bank. Since they did not pay the amount, the matter has been referred to arbitration and the arbitration case was filed and the award was passed against the petitioner. Since the amount was not be paid, the bank initiated execution proceedings before the Munsiff Court, Kasaragod as E.P.363/2015 by sale of the properties. As per the terms of the loan, the amount will have to be paid within five years in equal monthly installments. The upset prize was fixed as Rs.8,00,000/-. Though objections has been filed for the same, it was not properly considered by the court below. The amount fixed is very low. So he is prepared to pay the amount by instalments. So the petition has been filed seeking the following reliefs:

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i. Call for the records pertaining to the proceedings taken on

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O.P.(C) No.2375 of 2016

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the above E.P. and set aside illegal sale proceedings initiated in the E.P.No.363/2015 of Principal Munsiff Court, Kasaragod,

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ii. Issue an order or direction directing the respondent to give 12 months installment facility to the petitioner to remit the entire loan, and

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iii. Issue such other writ or direction which this Hon'ble Court may deem fit and proper on the facts and circumstances of the case and in the interest of justice.

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Heard Sri.Jiji.S., counsel appearing for the petitioner and Sri.Kodoth Pushparajan, counsel appearing for the respondent. The counsel for the petitioner submitted that he wanted one year time for paying the amount and that was opposed by the counsel for the respondent. But the counsel for the respondent has no objection in granting reasonable time for payment of the amount.

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There is no dispute regarding the fact that the petitioner availed a loan and committed default and the arbitration case was filed under the Provisions of the Kerala Co-operative Societies Act and award has been passed and in spite of that he had not paid the amount. So E.P.363/2015 was filed. He entered appearance and filed objection to the sale proclamation issued. His case was that the amount fixed is very low on the ground that the property will fetch more than Rs.1,00,000/- per cent. He had not produced any document to prove that fact. So mere assertion made by the petitioner that it will worth more than Rs.1,00,000/- per cent is not sufficient to come to

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O.P.(C) No.2375 of 2016

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the conclusion that the upset prize fixed by the court below is very low. So there is no merit in the submission that the upset prize fixed is very low for the reason that no valid evidence has been adduced before the court below to come to a different conclusion.

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As regards the time for payment is concerned, since the petitioner did not pay the amount, it has been transferred to nonperformance assets (NPA) and if this is continued for long period then the status of the bank will be reduced.

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So this court feels that granting seven months time will be sufficient and that will meet the ends of justice. The petitioner is directed to pay the amount with interest and costs in seven equal monthly installments, first of which is to start from 06.12.2016 and the next installment has to be paid on or before 6^th of succeeding months, but the last payment will have to be paid on or before 6^th June, 2017. If the petitioner commits any default in payment of any one of the installments, then the court below is entitled to proceed with the execution proceedings from the stage at which it has been directed to be kept in abeyance by this court on the same proclamation and effect sale of the property and realise the amount. If the installment is paid correctly, then the court below is directed to keep the execution in

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O.P.(C) No.2375 of 2016

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abeyance, till 06.06.2017 as directed by this court.

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With the above direction and observation the petition is disposed

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of.

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Registry is directed to communicate the judgment to the court

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below at the earliest.

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Sd/- (K. Ramakrishnan, Judge)

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//True Copy//

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P.A. to Judge

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Abdul Rahiman v. the General Manager, Kasaragod Co-Operative Town Bank Ltd.

Case brief

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Abdul Rahiman v. the General Manager, Kasaragod Co-Operative Town Bank Ltd.

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