The Court dismissed a writ petition challenging an auction notice for the sale of mortgaged property. The Court held that the petitioner lacked bonafides for not complying with the interim deposit order, making him ineligible for discretionary writ relief to delay enforcement of the final arbitral award.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY ,THE 09TH DAY OF NOVEMBER 2018 / 18TH KARTHIKA, 1940
WP(C).No. 4317 of 2018
PETITIONER/S:
A.J.JOSEPH AGED 51 YEARS
S/O.JOHN, ALENCHERIL HOUSE, MADUKKA,ERUMELI NORTH VILLAGE, KANJIRAPPALLY TALUK-686512
BY ADV. SRI.JOSY ANTONY
RESPONDENT/S:
2 THE SPECIAL SALE OFFICER KORUTHODU SERVICE CO-OPERATIVE BANK GROUP, A.R.OFFICE, KANJIRAPPALLY-686 512.
3 THE KORUTHOD SERVICE CO-OPERATIVE BANK LTD. NO.365 KORUTHOD, KANJIRAPPALLY -686 512 REPRESENTED BY ITS MANAGER.
BY ADVS. SRI.LIJI.J.VADAKEDOM
BY SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 4317 of 2018
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JUDGMENT
The petitioner, who availed a loan for Rs.3,00,000/- from the 3rd respondent Service
Co-operative Bank, which is a Society registered under the provisions of the Kerala Co-operative Societies Act, 1969, has filed
this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 auction notice dated 08.01.2018 issued by the 2nd respondent Special Sale Officer and seeking a writ of mandamus commanding the 3rd respondent to permit him to pay the amount legally due in his loan account, in monthly installments.
came up for admission, the learned Senior
Government Pleader took notice on admission for
the 1st respondent. This Court issued urgent
notice on admission by speed post to respondents 2 and 3 returnable within three
WP(C).No. 4317 of 2018
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weeks. This Court granted an interim stay of
all further proceedings pursuant to Ext.P4 sale
notice for a period of one month, on condition
that the petitioner deposits a sum of
Rs.25,000/- within two weeks from that date and a further sum of Rs.25,000/- within two weeks thereafter.
came up for consideration, the learned counsel
for the 3rd respondent, on instructions,
submitted that the petitioner has not complied
with the order of this Court dated 08.02.2018. The learned counsel for the petitioner sought adjournment and accordingly, the matter was
listed to 16.10.2018.
taken up for further consideration, the learned counsel for the petitioner sought further time
to get instructions. While granting adjournment for two weeks, this Court made it clear that if
the petitioner has not complied with the
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conditions stipulated in the order of this
Court dated 08.02.2018, it will be open to
respondents 2 and 3 to proceed further with the coercive steps.
petitioner, the learned Senior Government Pleader appearing for the 1st respondent and
also the learned counsel for the 3rd respondent
Bank. Despite service of notice, none appears
for the 2nd respondent Special Sale Officer.
would show that the petitioner availed a loan
for Rs.3,00,000/- from the 3rd respondent Bank
by mortgaging his property having an extent of
20 Ares in Resurvey No.244/13 (Old survey No.385/11) of Koruthod Village. On account of the default committed by the petitioner in effecting repayment, the Bank initiated
arbitration proceedings, which culminated in an
award passed by the Arbitrator in A.R.C.No.297/2014. In terms of the award passed
WP(C).No. 4317 of 2018
5
by the Arbitrator, the 2nd respondent Special
Sale Officer issued Ext.P2 demand notice demanding a sum of Rs.6,09,000/- together with
future interest from 06.11.2017, which was
followed by Ext.P3 demand notice dated 18.12.2017 for a sum of Rs.6,17,000/- and
Ext.P4 auction notice dated 08.01.2018, whereby
sale of the property offered as security was proposed to be held on 12.02.2018. Feeling aggrieved, the petitioner has moved this writ petition seeking appropriate reliefs.
petition, the petitioner is seeking only a
breathing time to pay off the entire dues in
monthly installments. However, the petitioner
has not shown his bonafides by complying with the condition stipulated in the interim order
of this Court dated 08.02.2018 by remitting the
amount within the time limit stipulated therein. The conduct of the petitioner makes it explicitly clear that the petitioner has filed
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6
this writ petition absolutely without any bonafides, with an intention to protract the recovery proceedings initiated by respondents 2 and 3 in terms of the award passed by the Arbitrator in A.R.C.No.297 of 2014. The fact that, in the absence of an appeal filed by the petitioner, invoking the provisions under Section 82(1)(e) of the Kerala Co-operative Societies Act, 1969, the award passed by the Arbitrator has attained finality is not in dispute.
In such circumstances, the petitioner is not entitled for any discretionary relief in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India.
The writ petition fails and the same is accordingly, dismissed.
Sd/-
ANIL K.NARENDRAN, JUDGE
WP(C).No. 4317 of 2018
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXT.P1 TRUE COPY OF THE DISABILITY CERTIFICATE DATED 4/11/2010 ISSUED BY THE MEDICAL BOARD CONSTITUTED BY THE DEPARTMENT OF HEALTH SERVICES, GOVERNMENT OF KERALA
EXT.P2 TRUE COPY OF THE E.A. DEMAND NOTICE DATED 6/11/17 ISSUED BY THE 2ND RESPONDENT
EXT.P3 TRUE COPY OF THE NOTICE DATED 18/12/2017 ISSUED BY THE 2ND RESPONDENT
EXT.P4 TRUE COPY OF THE AUCTION NOTICE DATED 8/1/2018 ISSUED BY 2ND RESPONDENT
AV/12/11
3 issues framed by the court
Whether the petitioner is entitled to discretionary writ relief to delay enforcement of the final arbitration award by seeking installment payment.
Whether the petitioner filing the writ without complying with the interim deposit condition proves lack of bonafides.
Whether this Court can quash the auction notice or grant stay pending payment of dues under the final arbitral award.
1 provisions across 1 enactments
A.J. Joseph
Assistant Registrar of Co-operative Societies Kanjirappally
The Special Sale Officer Koruthodu Service Co-operative Bank Group
The Koruthod Service Co-operative Bank Ltd.
Anil K. Narendran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
