Kerala High Court
Meethala Panayullathil Avulla vs State Of Kerala on 4 December, 2018
Author: V.Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
TUESDAY ,THE 04TH DAY OF DECEMBER 2018 / 9TH AGRAHAYANA, 1940
WA.No. 2278 of 2018
AGAINST THE JUDGMENT IN WP(C) 664/2006 DATED 25.05.2017
APPELLANT:
MEETHALA PANAYULLATHIL AVULLA
AGED 53 YEARS
S/O MOIDEEN,
CHETTIYAM VEETTIL HOUSE,
PONMERI PARAMBIL PO,
VILIAPPILLY,
VADAKARA KOZHIKODE DISTRICT
BY ADV. SRI.K.MOHANAKANNAN
RESPONDENTS:
1 STATE OF KERALA
THE SECRETARY,
DEPARTMENT OF CO-OPERATION,
SECRETARIAT ,
THIRUVANANTHAPURAM - 695001
2 THE REGISTRAR OF CO-
SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE
SOCIETIES THIRUVANANTHAPURAM 695001
3 THE BADAGARA CO-OPERTIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LIMITED,
NO. 1857 KAKKATTIL P.O.,
VADAKARA, KOZHIKODE DISTRICT,
REPRESENTED BY ITS SECRETARY
W.A.No.2278/2018
2
4 THE ARBITRATOR -CUM-SPECIAL
SALE OFFICER,
SENIOR INSPECTOR (HIGHER GRADE),
BADAGARA CO-OPERATIVE AGRICULTURAL AND RURAL
DEVELOPMENT BANK LIMITED, NO. 1857 KAKKATTIL P.O.,
VADAKARA, KOZHIKODE DISTRICT 673 101
5 A.P. MOOSA HAJI,
S/O. AMMED,
KUNNANKAT HOUSE, VILIAPPILLY AMSOM DESOM,
VADAKARA,KOZHIKODE DISTRICT 673 101
6 DEVI,
MANNADITHAZHA KUNIYIL P.O.,
KADMERI (VIA), VILLIAPPALLY, AYANCHERY AMSOM, KADMERI
DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT 673 639
7 NANU
AGED 66 YEARS
S/O. (LATE), CHEEKUNNI, MANNADITHAZHA KUNIYIL P.O.,
KADMERI (VIA), VILLIAPPALLY, AYANCHERY AMSOM, KADMERI
DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT 673 639
8 CHANDRAN,
AGED 64 YEARS
S/O. (LATE) CHEEKUNNI,
MANNADITHAZHA KUNIYIL P.O., KADMERI (VIA),
VILLIAPPALLY, AYANCHERY AMSOM, KADMERI DESOM,
VADAKARA TALUK, KOZHIKODE DISTRICT 673 639
9 SANTHA,
AGED 66 YEARS
S/O. (LATE), CHEEKUNNI,
MANNADITHAZHA KUNIYIL P.O., KADMERI (VIA),
VILLIAPPALLY, AYANCHERY AMSOM, KADMERI DESOM,
VADAKARA TALUK, KOZHIKODE DISTRICT 673 639
10 LEELA.
AGED 66 YEARS
D/O. (LATE), CHEEKUNNI,
MANNADITHAZHA KUNIYIL P.O., KADMERI (VIA),
VILLIAPPALLY, AYANCHERY AMSOM, KADMERI DESOM,
VADAKARA TALUK, KOZHIKODE DISTRICT 673 639
11 SOBHA
AGED 66 YEARS
D/O. (LATE), CHEEKUNNI,
MANNADITHAZHA KUNIYIL P.O., KADMERI (VIA),
VILLIAPPALLY, AYANCHERY AMSOM, KADMERI DESOM,
VADAKARA TALUK, KOZHIKODE DISTRICT 673 639
W.A.No.2278/2018
3
SRI.JACOB P.ALEX
SRI.T.R.HARIKUMAR
SRI.JOSEPH P.ALEX
SR.G.P SMT.K.R.DEEPA
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30.11.2018, THE
COURT ON 04.12.2018 PASSED THE FOLLOWING:
W.A.No.2278/2018
4
V.CHITAMBARESH
&
R.NARAYANA PISHARADI, JJ.
**************************
W.A.No.2278 of 2018
----------------------------------------------
Dated this the 4th day of December, 2018
JUDGMENT
R.Narayana Pisharadi, J The appellant had availed of four loans from the third respondent Co-operative Bank in the months of October and November, 1996. The total amount of the loans was Rs.2,72,570/-. He did not repay the loan amount, which was payable in instalments. The bank conducted sale of the property mortgaged by the appellant to realise the amount. The sale was confirmed. The appellant filed W.P(C).No. 664 of 2006 challenging the sale proceedings. The writ petition filed by him was dismissed. He has come up in appeal.
2. We have heard the learned counsel for the appellant.
3. It is evident that the appellant had no intention to repay the loan amounts. When the sale proceedings were initiated, the appellant had filed O.P.No.16129/2001 before this Court, challenging the auction proceedings. As per the W.A.No.2278/2018 5 judgment of this Court on 25.1.2002, the appellant was permitted to repay the loan amounts in six monthly instalments. The petitioner did not avail that facility. Thereafter, proclamation of sale was made fixing the date of sale as on 24.3.2003. The appellant remitted an amount of Rs.11,000/- on 24.3.2003. The sale was then adjourned to 31.03.2003. Since the appellant did not pay any further amount, sale was conducted on that date. The appellant then filed O.P.No.13286/2003. As per judgment dated 29.07.2003, this Court directed the bank to permit the appellant to pay the amount in instalments. It was further directed that the sale shall not be confirmed till instalment facilities were given to the appellant. In compliance with this judgment, as per Ext.R3(b), the bank permitted the appellant to repay the amount in six instalments. He did not remit any amount. Thereafter, as per Ext.R3(d), the bank permitted the appellant to repay the amount in ten instalments. He did not pay any amount. Thereafter, as per Ext.R3(e), the bank again permitted the appellant to discharge the liability in 15 monthly instalments and even then, he did not remit any amount. The sale was confirmed in favour of the fifth respondent on 30.6.2004. The certificate of sale was issued W.A.No.2278/2018 6 on 31.8.2004. Possession of the property was delivered to the auction purchaser on 15.10.2005.
4. Though the sale was confirmed as early as on 30.6.2004, the writ petition challenging the sale was filed only on 6.1.2006. The Kerala State Co-operative Agricultural and Rural Development Banks Act, 1984 (hereinafter referred to as 'the Act') contains the provisions regarding granting of loans and steps for recovery of loans to be taken by an Agricultural and Rural Development Bank. Section 10(1) of the Act provides that notwithstanding anything contained in the Kerala Co-operative Societies Act, or in any other law for the time being in force, but subject to any claim of the Government in respect of land revenue or amounts recoverable as land revenue, whether prior in time or subsequent, any person owning any land or having interest in any land as tenant or occupier or owning any other movable or immovable property who applies to a primary bank for a loan, shall make a declaration in the prescribed form creating a Gehan or mortgage or hypothecation in favour of the primary bank on the land or other movable or immovable property or interest therein or any movable property or movable assets to be acquired with the loan, specified in the W.A.No.2278/2018 7 declaration, for the repayment of the loan or advance granted or to be granted to him by the primary bank, together with interest on such amount of the loan or advance and expressly reserving in favour of the primary bank a right of sale without intervention of court, in case of default. Section 19(1) of the Act provides that notwithstanding anything contained in the Kerala Co-operative Societies Act, 1969, or the Transfer of Property Act, 1882 or in any other law for the time being in force, where a Gehan or mortgage or hypothecation has been created or executed in movable or immovable property in accordance with the provisions of sub- section (1) of section 10 in favour of the Agricultural and Rural Development Bank or a primary Bank, the Board or committee of such bank or any person authorized by the Board or such committee, shall, in case of default in the payment of sums due to the bank, have power, in addition to any other remedy available to the primary bank to bring to sale the property to which the Gehan or mortgage or hypothecation relates without intervention of the court. Section 20 of the Act deals with sale of property. Section 21(1) of the Act states that when a property has been sold, any person having a right or interest therein affected by the W.A.No.2278/2018 8 sale may, at any time within thirty days from the date of the sale, apply to the sale officer concerned to have the sale set aside on his depositing with the sale officer- (a) for payment to the Agricultural and Rural Development Bank or the primary bank, as the case may be, the amount specified in the proclamation of sale together with subsequent interest and the costs, if any, incurred by the bank in bringing the property to sale; and (b) for payment to the purchaser a sum equal to five per cent of the purchase money. Section 21(2) states that if such deposit is made, the sale officer may make an order setting aside the sale. Section 21(3) provides that where no application with deposit is made under sub-section (1) or where such application is made and disallowed, the sale officer may apply to the Registrar or any other officer empowered by him in this regard to make an order confirming the sale and, on the Registrar or such officer confirming the sale, it shall become absolute and the property shall be deemed to have vested in the purchaser from the time the property is sold. Section 24(3) of the Act states that the provisions of Rules 97 to 103 of Order XXI of the First Schedule to the Code of Civil Procedure, 1908 shall mutatis mutandis, apply to delivery of possession of the property to W.A.No.2278/2018 9 auction purchaser. Section 27 of the Act states that when a sale has been made in the professed exercise of the power of sale under section 19 and has been confirmed, the title of the purchaser shall not be impeachable on the ground that no cause had arisen to authorise the sale or that due notice was not given or that the power was otherwise improperly or irregularly exercised, but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his remedy in damages against the Agricultural and Rural Development Bank or the concerned primary bank, as the case may be.
5. The learned Single Judge has noticed that there was inordinate delay in challenging the sale before this Court and also the fact that the appellant was granted several opportunities to repay the loan amount in instalments, even after the sale of the property, but he did not avail them. Further, the appellant did not avail the statutory remedies to challenge the sale. As noticed earlier, as per Section 27 of the Act, when a sale has been made in the professed exercise of the power of sale under Section 19 and has been confirmed, the title of the purchaser cannot be impeached on the ground that no cause had arisen to authorise the sale or that due W.A.No.2278/2018 10 notice was not given or that the power was otherwise improperly or irregularly exercised.
5. In the aforesaid circumstances, we see no sufficient ground to interfere with the impugned judgment. The appeal is liable to be dismissed.
Consequently, we dismiss the appeal. No costs.
(sd/-) V.CHITAMBARESH, JUDGE (sd/-) R.NARAYANA PISHARADI, JUDGE jsr True Copy PS to Judge