Kerala High Court
Indian Overseas Bank vs M/S.K.B.Vilasom Cashew Factory on 5 October, 2009
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 956 of 2009(C)
1. INDIAN OVERSEAS BANK,
... Petitioner
Vs
1. M/S.K.B.VILASOM CASHEW FACTORY,
... Respondent
2. DEBT RECOVERY OFFICER,
For Petitioner :SRI.P.B.SURESH KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :05/10/2009
O R D E R
P.R. RAMACHANDRA MENON, J.
.....................................................................
R.P. No. 956 OF 2009 IN I.A.No. 11384 OF 2009
AND I.A.No. 11989 of 2009
IN
W.P.(C) No. 21670 OF 2009
.........................................................................
Dated this the 5th October, 2009
O R D E R
As per the judgment in the above Writ Petition, the Writ Petitioner was directed to satisfy a sum of Rs. Five lakhs on or before 30th August, 2009 and to have the balance amount cleared by way of six equal monthly installments, as specified. The said verdict was passed, taking note of the submission made from the part of the petitioner that one of the items of the scheduled property had already been sold on 16.07.2009 for a paltry amount, without any regard to the actual value and hence seeking for interference with regard to the sale of the remaining properties concerned. It was submitted from the part of the Bank that the total liability was more than Rs.56 lakhs; that after giving credit to the sale proceeds derived from the sale held on R.P. No. 956 OF 2009 IN I.A.No. 11384 OF 2009 AND I.A.No. 11989 of 2009 IN W.P.(C) No. 21670 OF 2009 2 16.07.2009, the balance was about Rs. 37,50,000/- and that the Bank was ready and willing to have the matter settled, if the petitioner paid a sum of Rs.27 Lakhs to close the loan transaction. However, considering the representation made by the Writ Petitioner that some of the amounts remitted by him were not given credit to, the respondent Bank was directed to furnish a Statement of Accounts to the petitioner, on satisfying the sum of Rs. Five lakhs within the time as specified, also directing the Writ Petitioner to satisfy the balance amount shown as per the Statement of Accounts, to top up the figures to the specified extent, by way of 'six' equal monthly installments, as stated herein before.
2. After disposal of the Writ Petition, the Writ Petitioner approached this Court by filing I.A.No.11384 of 2009 (producing the proof regarding satisfaction of Rs. Five lakhs as ordered by this Court), seeking for stay of confirmation of sale of the "2nd Schedule property" and also to direct the Bank to give a Statement of Accounts, as already directed, which was yet to be R.P. No. 956 OF 2009 IN I.A.No. 11384 OF 2009 AND I.A.No. 11989 of 2009 IN W.P.(C) No. 21670 OF 2009 3 served on him, despite the specific direction given. It was after hearing both the sides including the learned Counsel for the Bank, that the said I.A. was allowed, as it was never opposed from the part of the Bank.
3. The Bank has now come up with the Review Petition, stating that there occurred an inadvertent mistake in so far as the above I.A. happended to be not opposed on misconceived fats, particularly when it was not posted on 17.09.2009 (on which day it was allowed), but was taken up in the afternoon, pursuant to the request made by the learned counsel for the Writ Petitioner, to have it taken up on that day itself, of course, after hearing the Counsel for the respondent Bank as well. It is stated that the idea conveyed to the Counsel for the Bank was with regard to the "stay of confirmation of sale of the property which was scheduled to be held on 10.08.2009" and not with respect to the "2nd Schedule property" (as mentioned in Annexure A2, sale of which was already held on 16.07.2009). This is more so, since the sale of the said property held on 16.07.2009 was never R.P. No. 956 OF 2009 IN I.A.No. 11384 OF 2009 AND I.A.No. 11989 of 2009 IN W.P.(C) No. 21670 OF 2009 4 interfered with, by this Court, while passing the final verdict on 06.08.2009, enabling the petitioner to clear the liability by way of installments as specified therein.
4. The learned Counsel for the Bank referred to the specific averments raised in the paragraph No.7 of the Review Petition, as to the sequence of events, which however was disputed by the learned counsel for the petitioner, also adding that the dispute with regard to the actual amount payable is pending consideration in Appeal before the DRAT, Chennai, accompanied with the petition to condone the delay in filing the same. The Writ Petitioner has filed a fresh I.A. (I.A.No. 11989 of 2009), stating that even after remitting the specified sum of Rs. 5 lakhs, the Statement of Accounts as directed to be given by this Court, was not served on time, having served the same only on 24.09.2009 and hence that the petitioner might be given sufficient time to discharge the liability, which according to the Writ Petitioner, is only less than Rs. 10 lakhs as shown in the Statement of Accounts produced as Ext.P3 along with the I.A. R.P. No. 956 OF 2009 IN I.A.No. 11384 OF 2009 AND I.A.No. 11989 of 2009 IN W.P.(C) No. 21670 OF 2009 5
5. A detailed counter affidavit has been filed from the part of the respondent Bank stating that the contentions raised by the Writ Petitioner are thoroughly wrong and misconceived; that the amount actually due is covered by Ext.R1(a) Final Order, (which is the subject matter of the appeal before the DRAT, Chennai) and further that the amount shown in Ext. P3, as due on 31.08.2009, is not inclusive of interest w.e.f. 01.10.1997, the date on which the account was declared as 'NPA'. The learned Counsel for the Bank asserts that the total liability was about Rs.56 lakhs, as recorded in the judgment dated 06.08.2009, which however was confined to Rs.27 lakhs (after giving credit to the amount procured in the sale held on 16.07.2009 and also after giving concession); which in turn was directed to be cleared by way of installments. Obviously, the prayer contained in I.A.No.11384 of 2009 was a `prayer in disguise' seeking to stay confirmation of the "2nd schedule" property (sale of which was held on 16.07.2009) which was not a subject matter of challenge in the Writ Petition. More so, when the successful bidder was not R.P. No. 956 OF 2009 IN I.A.No. 11384 OF 2009 AND I.A.No. 11989 of 2009 IN W.P.(C) No. 21670 OF 2009 6 made a party to the Writ Petition. Further, any I.A. can only sub serve the main relief and when there was no challenge against the sale held on 16.07.2009. In the said circumstances, even though the said I.A. was allowed for having not opposed the same, this Court finds that there is an 'error apparent on the face of the records' and as such, the order passed by this Court on 17.09.2009 in I.A.No. 11384 of 2009 is recalled; the Review Petition is allowed to the said extent and the above I.A. is hereby dismissed.
6. With regard to I.A.No.11989 of 2009, it is rather conceded from the part of the Bank that, but for Annexure Ext.P3 Statement, showing the principal amount due, i.e., excluding the interest payable from 01.10.1997, no proper Statement showing the total liability of the petitioner was served to him, though there was a clear direction given by this Court in the judgment dated 06.08.2009. The learned Counsel for the Bank submits that a fresh statement showing the entire outstanding liability including interest and also giving credit to the amounts stated as R.P. No. 956 OF 2009 IN I.A.No. 11384 OF 2009 AND I.A.No. 11989 of 2009 IN W.P.(C) No. 21670 OF 2009 7 remitted by the Writ Petitioner on the relevant dates, if any, will be supplied to him within two days. On satisfying the said requirement, the balance amount due, as reduced and fixed by the Bank shall be cleared by the petitioner by way of `five' equal monthly installments, the first of which shall be effected on or before the 30th of this month, to be followed by the remaining installments to be satisfied by the 30th of the succeeding months, in default of which, it will be open for the Bank to proceed with further steps, from the stage where now it stands. Subject to the above, the judgment passed by this Court on 06.08.2009 will stand varied/modified. Satisfaction of the liability as above will not preclude the petitioner from establishing his rights and liberties in the proceedings stated as pending before the DRAT, Chennai.
P.R. RAMACHANDRA MENON, JUDGE.
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