Kerala High Court
Vayalil Nechooli Aboobacker vs The Kozhikode Primary Co-Op. ... on 21 November, 2018
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 21ST DAY OF NOVEMBER 2018 / 30TH KARTHIKA, 1940
WP(C).No. 13375 of 2007
PETITIONERS:
1 VAYALIL NECHOOLI ABOOBACKER, S/O. UNNIMOYI,
AGED 48 YEARS, FARMER, MYSOOR MALA P.O.,
MUKKOM, KOZHIKODE DISTRICT.
2 ABDUL AZEEZ E., S/O. MARAKKAR HAJI
EDARATH, AGED 38 YEARS, KARASSERI P.O.,
MUKKOM, KOZHIKODE DISTRICT, REP. BY HIS
POWER OF ATTORNEY HOLDER ABOOBACKER,
S/O. MARAKKAR HAJI, EDARATH, AGED 43,
KARASSERI P.O., KAKKAD AMSOM AND DESOM OF
KOZHIKODE TALUK.
BY ADV. SRI.C.P.MOHAMMED NIAS
RESPONDENTS:
1 THE KOZHIKODE PRIMARY CO-OP. AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD., PUTHIYARA P.O.,
KOZHIKODE DIST., REPRESENTED BY ITS SECRETARY.
2 THE KOZHIKODE PRIMARY CO-OP. AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD., MUKKOM BRANCH,
KOZHIKODE, REPRESENTED BY ITS MANAGER.
3 THE JOINT REGISTRAR OF THE DISTRICT
CO-OPERATIVE SOCIETY, KOZHIKODE.
R1 & R2 BY ADVS.SRI.P.A.HARISH
SRI.V.V.SURENDRAN
R3 BY SRI.SUNILNATH-GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC 13375/07 2
JUDGMENT
The petitioners impugn Exhibit P12 order on the ground that it has been issued by the third respondent without proper application of mind and therefore, being illegal and unlawful.
2. The compendious facts necessary for my consideration are that the petitioners had taken certain loans from the respondent Bank; but that they committed default in payment and the, therefore, approached the Bank for a One Time Settlement of the account. According to the petitioners, they have paid off the entire amount under the One Time Settlement (OTS) Scheme, but that the Bank resiled from it and demanded larger amounts in violation of the terms of the OTS Scheme. The petitioners, on such assertion, pray that the alleged amounts collected in excess of the OTS Scheme be refunded to them.
3. I notice that the stand of the Bank in this case is that the petitioners were given the benefit of the OTS Scheme based on Exhibit P1 circular dated 27.09.2001 and that the terms of this settlement is only prospective in nature. The Bank, therefore, submits that the amounts collected from the petitioners prior to Exhibit P1 obviously was on the basis of the then available circulars and instructions, but that the arrears that fell due after Exhibit P1 were given the benefits under it. He further says that all these issues have been considered in detail by WPC 13375/07 3 the Joint Registrar while he issued Exhibit P12 order and therefore, that it may not be possible for this Court, acting under Article 226 of the Constitution of India, to consider the correctness of the facts and figures recorded therein, it being dependent upon various documents, materials and factual circumstances.
4. I have considered Exhibit P12 impugned order. As has been correctly stated by the learned counsel for the Bank, all the contentions of the parties have been considered by the third respondent quite in detail in the said order. The question whether the petitioners were charged excess or whether penal interest was collected from them in violation of the applicable Circulars and Regulations, are issues that may not be available for this Court to consider and evaluate, while acting Article 226 of the Constitution of India, since they are all in the factual realm. Going by the well recognised constraints of jurisdiction of this Court while dealing with factual circumstances, I am of the view that the petitioners ought to have invoked their alternative remedy, if any, for a proper evaluation and assessment of the adjudication of the facts and figures claimed by them and that the petitioners cannot challenge Exhibit P12 before this Court, particularly when the said order has been issued based on certain evaluated factual circumstances and inputs.
WPC 13375/07 4
5. In the afore circumstances, without entering into the merits of Exhibit P12, I leave liberty to the petitioners to invoke their alternative remedies, including by filing a civil suit or by invoking the provisions of the Kerala Co-operative Societies Act, as are available to them. I am certain that the petitioners, if they are so advised, can invoke such remedies and apply for exclusion of the period during which this writ petition has been pending before this Court, while computing the period of limitation, if the provisions of Limitation Act are applicable to the alternative remedy.
This writ petition is thus closed with the afore liberty.
Sd/-
Devan Ramachandran, Judge tkv WPC 13375/07 5 APPENDIX PETITIONER'S EXHIBITS:
EXT. P1 TRUE COPY OF THE CIRCULAR NO.35/2001 DATED 27.9.2001 EXT. P2 TRUE COPY OF THE CIRCULAR NO.30/2002 DATED 16.8.2002 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES EXT. P3 TRUE COPY OF THE JUDGMENT DATED 22.3.2002 IN OP 14353/2001 EXT. P4 TRUE COPY OF THE LETTER DATED 3.3.2003 EXT. P5 TRUE COPY OF THE JUDGMENT DATED 7.1.2005 IN WPC 691/2005 AND STATEMENT SUBMITTED THERETO EXT. P6 TRUE COPY OF THE PETITION TO REFUND THE EXCESS AMOUNT IN CRB NO.1428/2005 EXT. P7 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE BANK IN CRB NO.1428/2005 EXT. P8 TRUE COPY OF THE REJOINDER IN CRB NO.1428/2005 EXT. P9 TRUE COPY OF THE PETITION TO REFUND THE EXCESS AMOUNT IN CRB NO.1429/2005 EXT. P10 TRUE COPY OF THE COUNTER STATE ENT FILED BY THE BANK IN CRB NO.1429/2005 EXT. P11 TRUE COPY OF THE REJOINDER IN CRB NO.1429/2005 EXT. P12 TRUE COPY OF THE ORDER DATED 8.3.2006 NO.CRB/1248/2005 OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, CALICUR /TRUE COPY/ P.S. TO JUDGE