Dismissed

A.a.Abraham v. the Special Sale Officer

Kerala HC20 Feb 2018WP(C)/4962/2018

Case brief

AI extract

What is this about?

This writ petition challenged a sale notice issued under an arbitrator's award despite pending revision petitions before the Co-operative Tribunal. The Court held that without a specific stay order from the Tribunal, the execution proceeds are justified and the writ petition is not maintainable.

What did the court decide?

The writ petition challenging the sale notice is dismissed as the petitioners must seek a stay order from the Co-operative Tribunal.

A.a.Abraham Vs the Special Sale Officer — Property and Title | Kerala HC (2018)

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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 ANIL K.NARENDRAN

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TUESDAY, THE 20TH DAY OF FEBRUARY 2018 / 1ST PHALGUNA, 1939

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WP(C).No. 4962 of 2018

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PETITIONER(S)

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1 A.A.ABRAHAM, S/O.ABRAHAM, AGED 67 YEARS, RESIDING AT AATTAPPATTU HOUSE, MANAPPADY KARA, ELAPPILLY VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN-685 589.

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2 MERRIN ABRAHAM, D/O.A.A.ABRAHAM, AGED 31 YEARS, AATTAPPATTU HOUSE, MANAPPADY KARA, ELAPPILLY VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN-685 589.

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BY ADVS.SRIP.S.SUJETH SMT.M.R.REENA

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RESPONDENT(S):

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1. THE SPECIAL SALE OFFICER, ARBITRATION & EXECUTION, ASSISTANT REGISTRAR (GENERAL) OFFICE, CO-OPERATIVE SOCIETIES, THODUPUZHA, IDUKKI DISTRICT, PIN-685 584.

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2. THE MANAGING DIRECTOR, THE ARAKKULAM FARMERS-SERVICE CO-OPERATIVE BANK LTD, NO.1299, ARAKKULAM, ELAPPILLY VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN-685 591.

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R1 BY SENIOR GOVERNMENT PLEADER SRI.BIMAL K.NATH R2 BY ADVS. SRI.JOHNSON MANAYANI SRI.BENHUR JOSEPH MANAYANI SRI.JEEVAN MATHEW MANAYANI

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 4962 of 2018 (U)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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----------------------EXHIBIT P1. TRUE COPY OF THE SALE NOTICE DATED 4/1/2018 SHOWING THE SALE OF PROPERTY SCHEDULED ON 23/2/2018. EXHIBIT P2. TRUE COPY OF THE REPRESENTATION GIVEN TO THE BRANCH MANAGER EXHIBIT P3. TRUE COPY OF THE RP NO.98/2017 DATED 9/8/2017 FILED BEFORE THE CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT P4. TRUE COPY OF THE RP NO.101/2017 DATED 9/8/2017 FILED BEFORE THE CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. RESPONDENT(S)' EXHIBITS -----------------------

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EXHIBIT R2(A):- THE TRUE COPY OF THE AWARD IN ARC 3/2016 OF ASSISTANT REGISTRAR CO-OPERATIVE SOCIETIES GENERAL, THODUPUZHA, DATED 14.2.2017. EXHIBIT R2(B):- THE TRUE COPY OF THE AWARD IN ARC 4/2016 OF ASSISTANT REGISTRAR CO-OPERATIVE SOCIETIES GENERAL, THODUPUZHA, DATED 14.2.2017. EXHIBIT R2(C):- THE TRUE COPY OF THE AUCTION SALE NOTICE OF THE PETITIONERS PROPERTIES, PUBLISHED IN DEEPIKA, DATED 19.1.2018. EXHIBIT R2(D):- TRUE COPY OF THE AUCTION SALE NOTICE OF THE PETITIONERS PROPERTIES, PUBLISHED IN MANGALAM DAILY, DATED 19.1.2018.

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/TRUE COPY/

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PS TO JUDGE TS 24/02/2018

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ANIL K.NARENDRAN, J.

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W.P.(C).No.4962 of 2018

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Dated this the 20^th day of February, 2018

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J U D G M E N T

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The petitioners, who have filed Exts.P3 and P4 revision petitions before the Kerala State Co-operative Tribunal, Thiruvananthapuram, i.e., revision petition Nos.98 of 2017 and 101 of 2017, under Section 84 of the Kerala Co-operative Societies Act, 1969, challenging Exts.R2(a) and R2(b) awards dated 14.02.2017 in A.R.C.Nos.3 of 2016 and 4 of 2016, have approached this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 sale notice dated 04.01.2018 and for a declaration that Ext.P1 sale notice is illegal and against the principles of natural justice, since the revision petitions are pending consideration before the Cooperative Tribunal. The petitioners have also sought for other consequential reliefs.

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On 04.02.2018, when this writ petition came up for admission, this Court issued urgent notice on admission by special messenger to respondents 1 and 2 returnable by 19.02.2018.

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A counter affidavit has been filed by the 2^nd respondent opposing the reliefs sought for in this writ petition, wherein, it has been stated that, no stay petitions are filed in Exts.P3 and P4 revision petitions pending before the Co-operative Tribunal seeking stay of execution of Exts.R2(a) and R2(b) awards. In the said counter affidavit

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W.P.(C)No.4962 of 2018

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:-2-:

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it has also been stated that the sale scheduled on 19.02.2018, in terms of Ext.P1 sale notice now stands adjourned by the 1^st respondent Special Sale Officer to 26.02.2018.

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Heard the learned counsel for the petitioners, the learned Senior Government Pleader appearing for the 1^st respondent and also the learned counsel appearing for the 2^nd respondent Bank.

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Ext.P1 sale notice, which is under challenge in this writ petition is one issued in respect of Ext.R2(a) award passed by the Arbitrator in A.R.C.No.3 of 2016. Aggrieved by the award passed by the Arbitrator, i.e., Exts.R2(a) and R2(b), the petitioners have already filed Exts.P3 and P4 revision petitions before the Co-operative Tribunal, invoking the provisions under Section 84 of the Act. If the petitioners want an order of stay of execution of the awards, during the pendency of those revision petitions, they have to file interlocutory applications before the Tribunal, seeking an order of stay.

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Admittedly, the petitioners have not filed any such stay petitions in Exts.P3 and P4 revision petitions. When the operation of Exts.R2(a) and R2(b) awards passed by the Arbitrator is not stayed by the Co-operative Tribunal in Exts.P3 and P4 proceedings, the 1^st respondent Special Sale Officer is perfectly justified in issuing Ext.P1 sale notice. The proceedings in Ext.P1 sale notice cannot be challenged in a writ petition filed under Article 226 of the Constitution of India,

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W.P.(C)No.4962 of 2018

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:-3-:

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even without seeking an order of stay before the Co-operative Tribunal, in the revisions petitions pending before that Tribunal.

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Now from the averments in the counter affidavit filed by the 2^nd respondent Bank, it can be seen that the 1^st respondent Sale Officer has already adjourned the sale scheduled in terms of Ext.P1 sale notice to 26.02.2018. Exts.P3 and P4 revision petitions now stand listed before the Co-operative Tribunal on 23.02.2018.

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In such circumstances, if the petitioners are aggrieved by the recovery proceedings initiated by the 1^st respondent Special Sale Officer, their remedy is to approach the Co-operative Tribunal with appropriate interlocutory applications in Exts.P3 and P4 revision petitions. Without prejudice to the aforesaid right of the petitioners, this writ petition stands dismissed.

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Sd/-

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ANIL K.NARENDRAN JUDGE

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A.a.Abraham v. the Special Sale Officer

Case brief

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A.a.Abraham v. the Special Sale Officer

Case brief

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