Partly allowed

K.M.Hamsa v. Kasaragod Co-Operative Town Bank Ltd.

Kerala HC21 Nov 2016OP(C)/2564/2016

Case brief

AI extract

What is this about?

Petitioner sought a stay on execution proceedings via writ petition under Article 227, arguing low upset price and requesting installment facility. Court noted no evidence for low price but directed payment in seven equal monthly installments with interest, staying proceedings until June 2017.

What did the court decide?

Petitioner directed to pay amount with interest and costs in seven equal monthly installments; execution proceedings stayed till 06.06.2017.

K.M.Hamsa Vs Kasaragod Co-Operative Town Bank Ltd. — Banking and Recovery | 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. 2564 of 2016 (O)

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E.P.NO. 349/2015 OF THE PRINCIPAL MUNSIFF COURT, KASARAGOD

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PETITIONER(S)/JUDGMENT DEBTOR NO. 1 :

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K.M.HAMSA,

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AGED 54 YEARS, S/O. MOHAMMED, R/AT PERUMBALA, KADAVU ROAD, VIDYANAGAR POST, KASARAGOD VILLAGE.

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BY ADV. SRI.S.JIJI

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RESPONDENT(S)/DECREE HOLDER :

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THE GENERAL MANAGER, KASARAGOD CO-OPERATIVE TOWN BANK LTD. NO. 970, KASARAGOD VILLAGE & POST, KASARAGOD 671 121.

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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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Msd.

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OP(C).No. 2564 of 2016

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1 TRUE COPY OF THE E.P NO. 349/2015. EXHIBIT P2 TRUE COPY OF THE SALE PROCLAMATION DATED 02.06.2016. EXHIBIT P3 TRUE COPY OF THE COUNTER DATED 30.06.2016.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

K.RAMAKRISHNAN, J.

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O.P.(C) No.2564 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.349/2015 of Principal Munsiff's 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 loan of Rs.3,00,000/- for the marriage of his daughter on security of furnishing 10 cents of land and building therein to the respondent bank. Since he 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.349/2015 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 have been filed for the same, the same was not properly considered by the court below. The amount fixed is very low. So he is prepared to pay the amount by installments. So the petition has been filed seeking the following reliefs:

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i. Issue writ of mandamus or any other order or direction

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O.P.(C) No.2564 of 2016

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directing the respondent to consider the loan of the petitioner under ASHWAS scheme of the government and pass necessary orders on the same by giving him eligible benefits under the scheme within a time frame decided by this Hon'ble Court,

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ii. Issue an order or direction directing the respondent to give maximum months instalment facility to the petitioner to remit the entire loan balance as fixed by the above application, 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 more 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.349/2015 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.2564 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, 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 court below is directed to keep the execution in

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O.P.(C) No.2564 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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K.M.Hamsa v. Kasaragod Co-Operative Town Bank Ltd.

Case brief

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K.M.Hamsa v. Kasaragod Co-Operative Town Bank Ltd.

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