Kerala High Court
M.V.Nabeesa vs Kannur District Co-Op.Bank Limited on 20 September, 2014
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
SATURDAY,THE 20TH DAYOF SEPTEMBER 2014/29TH BHADRA, 1936
WP(C).No. 20103 of 2014 (K)
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PETITIONERS:
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1. M.V.NABEESA,D/O.ABOOBACKER,'FLOWER GARDEN',
GARDENS ROAD,PILAKKOOL,THALASSERY,KANNUR DISTRICT.
2. T.K.FIROZ,S/O.ALI,'FLOWER GARDEN',GARDENS ROAD,
PILAKKOOL,THALASSERY,KANNUR DISTRICT.
BY ADVS.SRI.M.P.ASHOK KUMAR
SMT.BINDU SREEDHAR
RESPONDENTS:
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1. KANNUR DISTRICT CO-OP.BANK LIMITED,
HEAD OFFICE KANNUR-670001,REPRESENTED BY
ITS AUTHORISED OFFICER.
2. THE MANAGER,DISTRICT CO-OPERATIVE BANK,
MANHODI BRANCH,THIRUMUGAL,THALASSERY-670 103.
R1 & R2 BY ADV. SMT.MEENA JOHN, SC, KANNUR DIST. CO.OP. BANK
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 20-09-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(C).No.20103 of 2014 (K)
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APPENDIX
PETITIONERS' EXHIBITS
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EXHIBIT P1 : PHOTOCOPY OF THE DEMAND NOTICE DT.18-5-12.
EXHIBIT P2 : PHOTOCOPY OF THE JUDGMENT IN WPC 29232/13 DT.29-11-13.
EXHIBIT P3 : PHOTOCOPY OF THE ORDER IN IA 1736/14 IN
WPC 29232/13 DT.11-2-2014.
EXHIBIT P4 : PHOTOCOPY OF THE RECEIPT DT.1-2-2014.
EXHIBIT P5 : PHOTOCOPY OF THE RECEIPT DT.1-3-14.
EXHIBIT P6 : PHOTOCOPY OF THE RECEIPT DT.31-3-14.
EXHIBIT P7 : PHOTOCOPY OF THE RECEIPT DT.12-6-14.
EXHIBIT P8 : PHOTOCOPY OF THE APPLICATION FOR REGULARISATION
DT.12-6-14.
RESPONDENTS EXHIBITS: NIL
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//TRUE COPY//
P.S.TO JUDGE
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P.R. RAMACHANDRA MENON, J.
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W.P.(C). Nos. 20103 & 20256 of 2014
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Dated this the 20th day of September, 2014
JUDGMENT
The basic issue involved in these cases is with regard to the challenge raised against the course pursued by the respondent Banks which are Cooperative Banks governed by the provisions of Kerala Co- operative Societies Act, in invoking the machinery under the SARFAESI Act for recovery of the amount allegedly due under different loan transactions.
2. The petitioners have got a common claim that the proceedings are not maintainable in view of the special statute, which according to them is the Kerala Co-operative Societies Act. The learned counsel for the petitioner in W.P.(C) No. 20103 of 2014 who led the arguments submits that, by virtue of the mandate under Section 69, particularly Section 69 (h) of the Kerala Co-operative Societies Act, a 'non obstante clause' is incorporated and as such, no other Court or Forum is having jurisdiction to deal with the disputes between the Bank and the customers. This being the position, the respondents are not at all justified in invoking the provisions under the SARFAESI Act to effect the recovery. Reliance is also sought to be placed on the decisions rendered by the Apex Court in Greater W.P.C. Nos. 20103&20256 of 2014 -2- Bombay Coop. Bank Ltd v United Yarn Tex (P) Ltd. & Others (2007) 6 SCC 236, Udyami Evam Khadi Gramodyog Welfare Sanstha & Another v State of Uttar Pradesh & Others (2008) 1 SCC 560, besides the decision in Paulose v. Assistant Registrar Co- Operative Societies (2003(2) KLT 270).
3. The version of the petitioner is sought to be rebutted from the part of the respondents, particularly the respondent Bank in W.P. (C). 20103 of 2014, who made submissions with reference to the counter affidavit. It is stated that, this writ petition itself is not maintainable in law for the reason that, the petitioner had approached this Court earlier, raising the very same contentions by way of W.P.(C) No. 29232 of 2013. When the matter came up for consideration before this Court on 29.11.2013, the petitioner gave up all the contentions in this regard, as recorded therein, and sought for the benefit of instalment facility, so as to wipe out the liability in a phased manner. It was accordingly, that Ext.P2 judgment was passed. But the commitment was not honoured by effecting the instalments. Still, the time was extended by this Court as per Ext.P3 order dated 11.02.2014 in I.A. No. 1736 of 2014. The petitioner did not choose to satisfy the liability and as such, the petitioner is estopped from filing the present writ petition seeking for the very same relief with reference to the provision of law to be made applicable. The writ W.P.C. Nos. 20103&20256 of 2014 -3- petition is liable to be dismissed on this score itself, submits the learned counsel.
4. It is true that the law was declared by the hon'ble Apex Court as per the decision in Greater Bombay Coop. Bank Ltd. V. United Yarn Tex (P) Ltd. and Others (2007 (6) SCC 236) holding that, the provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 could not be made applicable to institutions governed by the Co-operative Societies Act as referred therein. The said decision was followed in the subsequent decision as well, as in Udyami Evam Khadi Gramodyog Welfare Sanstha and Another V. State of Uttar Pradesh and Others (2008 (1) SCC 560). The law declared by another learned Judge of this Court in Paulose V. Assistant Registrar Co-operative Societies (2003 (2) KLT 270) with reference to Section 69 of the Kerala Co-operative Societies Act, 1969 is also in relation of the applicability of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. None of the above decisions does make any reference to the SARFAESI Act or say that the said Act is not liable to be applied in the case of the entities like the respondents herein.
5. In fact, such a question was brought to notice of this Court earlier. After meticulous analysis of the relevant provisions of law, it was held as per the decision reported in Varghese V. Kerala State W.P.C. Nos. 20103&20256 of 2014 -4- Co-operative Bank Ltd. (2008 (1) KLT 521) that, the SARFAESI Act is applicable in the case of the Co-operative Banks as well. The issue was further discussed and explained by a Division Bench of this Court in the decision reported in Georgekutty Abraham V. Kottayam Dist. Co-op. Bank Ltd. (2008 (1) KLT 778). The Decision rendered by the hon'ble Apex Court in Greater Bombay Coop. Bank Ltd. V. United Yarn Tex (P) Ltd. and Others (2007 (6) SCC 236) was referred to and a specific finding was arrived at holding that, the same was not applicable. The writ petitions were dismissed, without prejudice to the rights and liberties of the petitioners for appropriate remedy in terms of the SARFAESI Act.
In the above circumstances, this Court finds that, the issue is squarely covered by the decision rendered by the Division Bench of this Court and it stands against the petitioners. No interference is possible in these writ petitions. Accordingly, interference is declined and both the writ petitions are dismissed.
P.R. RAMACHANDRA MENON, JUDGE.
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