Kerala High Court
T.J.Jose vs The Kerala Financial Corporation on 5 June, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
MONDAY, THE 27TH DAY OF FEBRUARY 2012/8TH PHALGUNA 1933
WP(C).No. 13254 of 2011 (F)
---------------------------
PETITIONER(S):
-------------
T.J.JOSE, THERMADAM HOUSE,
CHEMBUTHARA, PATTIKKAD, THRISSUR.
BY ADV. SRI.M.P.ASHOK KUMAR
RESPONDENT(S):
--------------
1. THE KERALA FINANCIAL CORPORATION,
THRISSUR, REPRESENTED BY ITS CHIEF MANAGER
PIN 680 001.
2. THE KERALA FINANCIAL CORPORATION,
VELLAYAMBALAM, THIRUVANANTHAPURAM
REPRESENTED BY ITS CHAIRMAN, PIN 695001.
3. THE ZONAL MANAGER, KERAL FINACIAL
CORPORATION, ERNAKULAM- 682001.
4. THE DEPUTY TAHSILDAR (RR),
KFC, THRISSUR DISTRICT- 680001.
5. NATIONAL HIGHWAYS AUTHORITY OF INDIA,
OFFICE OF THE PROJECT DIRECTOR NO.8/1187
ARUMUGAN COLONY, CHANDRANAGAR, PALAKKAD-678007.
ADDL.6. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY
TO GOVERNMENT, SECRETARIATE,
THIRUVANANTHAPURAM.
(ADDL. R6 IS IMPLEADED AS PER ORDER DT. 5.7.2011 IN
I.A.NO.10284/2011)
R,R1-3 BY SRI.M.M.SAYED MUHAMMED, SC, KFC
R,R5 BY SRI.THOMAS ANTONY
R,R3 BY SRI.THOMAS ANTONY
R, BY GOVERNMENT PLEADER
R1-R3 BY SRI.K.JAJU BABU,SC,KERALA FINANCIAL COR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX IN W.P.(C) NO.13254 OF 2011
EXT.P1 PHOTOCOPY OF THE ADVERTISEMENT IN MATHRUBHOOMI DAILY
DATED 5.6.2010
EXT.P2 PHOTOCOPY OF THE RECOVERY POLICY FOR THE YEAR 2007-2008
DATED 13.9.2007
EXT.P3 PHOTOCOPY OF THE CIRCULAR NO.59 DATED 1.12.2007
EXT.P4 PHOTOCOPY NOF THE MINUTES OF THE 546TH MEETING HELD ON
25.7.2008
EXT.P5 PHOTOCOPY OF THE MINUTES DATED 17.12.2007
EXT.P6 PHOTOCOPY OF THE DEMAND NOTICE DATED 4.6.2009
EXT.P7 PHOTOCOPY OF THE LETTER DATED 9.12.2009
EXT.P8 PHOTOCOPY OF THE LETTER DT. 10.5.2010
EXT.P9 PHOTOCOPY OF THE JUDGMENT IN W.P.(C) NO.18340/2010
DATED 28.6.2010
EXT.P10 PHOTOCOPY OF THE REPRESENTATION DATED 17.8.2010
EXT.P11 PHOTOCOPY OF THE PROCEEDINGS DATED 8.10.2010
EXT.P12 PHOTOCOPY OF THE ORDER DATED 24.11.2010
EXT.P13 PHOTOCOPY OF THE REQUEST DATED 11.12.2010
EXT.P14 PHOTOCOPY OF THE ORDER DATED 31.3.2011
EXT.P15 PHOTOCOPY OF THE PROPOSAL DATED 11.2.2011
SUBMITTED BY THE PETITIONER.
EXT.P16 PHOTOCOPY OF THE JUDGMENT IN W.P.(C) NO.1048/11 DATED
17.2.2011
EXT.P17 PHOTOCOPY OF THE ORDER DATED 11.3.2011 PASSED BY THE
FIRST RESPONDENT.
EXT.P18 PHOTOCOYP OF THE CONSENT LETTER DATED 23.10.2010 GIVEN
BY THE PETITIONER.
EXT.P19 PHOTOCOPY OF THE LETTER DATED 23.2.2011
EXT.P20 PHOTOCOPY OF THE LETTER DATED 21.5.2011
EXT.P21 PHOTOCOPY OF THE PROCEEDINGS NO.110219710/2190/2011
DATED 11.3.2011.
EXT.P22 PHOTOCOPY OF THE SKETCH SHOWING THE DETAILS OF PROPERTY
AGREED TO SELL BY THE PETITIONER.
W.P.(C) NO.13254/2011
: 2 :
EXT.P23 PHOTOCOPY OF THE DEMAND NOTICE ISSUED BY THE KERALA
FINANCIAL CORPORATION DATED 1.10.2011
RESPONDENTS EXHIBITS:
EXT.R1(A) TRUE PHOTOSTAT COPY OF THE LETTER DATED 9.12.2009 OF THE
KERALA FINANCIAL CORPORATION ASKING THE PETITIONER TO
REMIT OTS ADVANCE.
EXT.R1(B) TRUE PHOTOSTAT COPY OF LETTER DATED 17.8.2010 SUBMITTED BY
THE PETITIONER BEFORE THE KERALA FINANCIAL CORPORATION
OFFERING RS.45.00 LAKHS AS OTS AMOUNT.
EXT.R1(C) TRUE PHOTOSTAT COPY OF LETTER DATED 8.10.2010 SENT BY THE
K.F.C. TO THE PETITIONER DEMANDING TO ENAHNCE HIS CSS OFFER.
EXT.R1(D) TRUE PHOTOSTAT COPY OF LETTER DATED 23.10.2010 SENT BY THE
PETITIONER TO THE TAHSILDAR (LAND ACQUISITION)
EXT.R1(E) TRUE PHOTOSTAT COPY OF THE LETTER DATED 24.11.2010
ISSUED BY THE KERALA FINANCIAL CORPORATION TO THE
PETITIONER.
EXT.R1(F) TRUE PHOTOSTAT COPY OF THE LETTER DATED 24.11.2010 ISSUED
BY THE K.F.C. TO THE SPL. TAHSILDAR, N.H.D.P., THE 4TH
RESPONDENT.
EXT.R1(G) TRUE PHOTOSTAT COPY OF PROPOSAL DATED 11.2.2011 SUBMITTED
BY THE PETITIONER BEFORE THE FIRST RESPONDENT.
EXT.R4(a) A TRUE COPY OF THE LETTER FROM CHIEF MANAGER, KFC
DATED 24.11.2010
//TRUE COPY//
P.S. TO JUDGE.
V.CHITAMBARESH, J.
-------------------------------
W.P.(C) No.13254 of 2011
-------------------------------
Dated this the 27th day of February, 2012
J U D G M E N T
'Thermadom Auditorium' which was a prominent structure on the side of NH-47 was sliced into two and a portion of the property acquired for widening the National Highway. The petitioner who is the owner of the Auditorium lost 17 cents out of 45 cents in that process. The issue raised in this writ petition relates to the arbitrary denial of the benefits of the One Time Settlement (Compromise Settlement Scheme) of Kerala Financial Corporation (hereinafter referred to as 'the KFC' for short). The petitioner had availed of Rs.25.5 lakhs as loan from the KFC for constructing the Auditorium.
2. The petitioner relies on Ext.P4 proceedings of the KFC to contend that heavy concessions have been granted in respect of other loanees. The petitioner highlights the fact that he has been discriminated in the matter of granting concession and that the principles in Exts.P2 and P3 recovery policies are not adhered to. The KFC on the other hand contends that the W.P.(C) No.13254 of 2011 2 petitioner did not make a concrete proposal despite several opportunities granted. The KFC further submits that it is eager and willing to extend all benefits/concessions to the petitioner provided a firm offer is made.
3. This Court has in Usmatech Textile Engineers Pvt. Ltd. v. The Branch Manager, K.F.C. Ltd & Ors (2009 (1) KLJ 83) has occasion to observe as follows:-
"17. .........In this context, I should also make reference to Exts.P16 & P17 proceedings of the respondent Corporation itself, produced by the petitioner, where about 200 similar defaulters have been given the benefit of OTS scheme and the petitioner has in specific terms contended that they have been discriminated. In the counter affidavit filed, this contention of the petitioner is sought to be brushed aside by making a general and vague statement that each case is to be dealt with on its own merit. It may be true that there is an element of discretion conferred on the respondents. But, it being an instrumentally of state, cannot exercise the discretionary power discriminatively or capriciously." W.P.(C) No.13254 of 2011 3
I subscribe to the same views and hold that the petitioner is entitled to a similar treatment as was extended to other loanees. The petitioner may therefore submit a detailed representation giving up the break up of the payments made and the recovery policies existing. The Board of Directors of th KFC shall consider the representation so submitted within a period of two months from the date of receipt of a copy of the representation. The petitioner shall be put on notice and heard before the Board of Directors takes a final decision.
4. Yet another grievance of the petitioner is the appropriation of a sum of Rs.50,74,178/- by the KFC from the compensation amount payable towards the land acquisition. The petitioner asserts that the fourth respondent Tahsildar (LA) exceeded his authority in so transferring the compensation amount to the KFC directly without effecting payment to the petitioner. But I find that the amount was so transferred as ordered by the District Collector on 29.11.2010 in tune with Ext.P9 judgment in W.P.(C) No.18340 of 2010. The same reads W.P.(C) No.13254 of 2011 4 as follows:-
"5. ......On receipt of the amount as above, the application preferred by the petitioner for the benefit of 'OTS'/'CSS' shall be considered and the balance liability to be cleared by the petitioner shall be let known to the petitioner as well as the 2nd respondent, on which event, the requisite amount as above left at the hands of the 2nd respondent shall be released directly to the KFC, with proper intimation to the petitioner."
Neither the KFC nor the fourth respondent Tahsildar can therefore be faulted for appropriating the compensation amount towards the dues to the KFC.
5. A sizeable amount has been realised by the KFC by appropriation of the compensation amount. It is only just and fair that the petitioner is given the maximum concession as per the recovery policy existing as on the date of appropriation. This is particularly so since the petitioner was disabled from making payments in time due to acquisition of the Auditorium which was the source of money for repayment. The amount, if W.P.(C) No.13254 of 2011 5 any, recovered in excess will be refunded to the petitioner after completing the exercise as directed above. Needless to mention that the documents pledged by the petitioner would be released to him on clearing the liability in compliance with the directions stated above.
V.CHITAMBARESH, Judge.
nj.
V.CHITAMBARESH, J.
-------------------------------------- W.P.(C) No. 13254 of 2011
JUDGMENT Dated:- 27th February, 2012
--------------------------------------