IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942
WP(C).No.18241 OF 2020(E)
PETITIONERS:
1 ABDUL SALAM,
AGED 62 YEARS
S/O. VAVAKUNJU LABBA, LATHEEF MANZIL,
CHEMANTHOOR KARA, PUNALUR VILLAGE, PUNALUR P O,
KOLLAM,
2 SALIHA MEERA
W/O. ABDUL LATHEEF, MEERA MANZIL, URICODU,
VILAKUDI VILLAGE, VILAKUDI PO , PATHANAPURAM TALUK,
KOLLAM.
BY ADV. SMT.T.V.NEEMA
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
CO-OPERATIVE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
2 THE REGISTRAR
CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF
CO-OPERATIVE SOCIETIES, JAWAHAR SAHAKARANA BHAVAN,
DPI JUNCTION, THYCAUD P.O, KERALA - 695014.
3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL)/ARBITRATOR,
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES, (GENERAL), KOLLAM - 691001.
4 THE ASSISTANT REGISTRAR (GENERAL)
OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES(GENERAL), PATHANAPURAM,
PUNALUR P.O, KOLLAM - 689695.
5 THE SPECIAL ARBITRATOR CUM SALE OFFICER,
ELAMBEL SERVICE CO-OPERATIVE BANK, OFFICE OF THE
ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,
PATHANAPURAM- 689695.
WP(C).No.18241 OF 2020 2
6 ELAMBEL SERVICE CO-OPERATIVE BANK,
REG.NO. 604, REPRESENTED BY ITS SECRETARY,
ELAMBEL P O, PATHANAPURAM - 689695.
7 THE STATION HOUSE OFFICER,
KUNNIKKODU POLICE STATION, PATHANAPURAM,
KOLLAM DISTRICT - 689695.
R1-5, R7 BY SMT SHEEJA CS SR GOVERNMENT PLEADER
R6 BY ADV. SRI.M.R.ANISON
R6 BY ADV. SMT.V.BHARGAVI (PANANGAD)
R6 BY ADV. SMT.P.A.RINUSA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.18241 OF 2020 3
JUDGMENT
The 1st petitioner in his capacity as a member of the 6th respondent Society availed a sum of Rs.3,00,000/- (Rupees Three Lakhs only) by way of loan under the Medium Term Non- Agricultural Property Purpose category. He is stated to have registered a Gahan upon immovable property and signed and produced a Venkadapatram. As per the terms, the loan was to be repaid in 60 monthly instalments with 15% interest. In case of default, the bank was permitted to realize the amount with 17% interest. The 1st petitioner committed default which resulted in the institution of A.R.C.No.2054/2018 before the 4th respondent. The matter is now pending before the 5th respondent. The petitioners are contesting the matter and have filed their counter as well.
2. The petitioners state that the documents relied on by the bank are forged and manipulated to make it appear that in the event of default being committed the petitioner is bound to pay interest at the rate of 17%. They contend that an agricultural loan was availed and as per the circular issued by the registrar, the interest that can be levied is 12 % and nothing more. It is contended that the Venkadapatram produced by the bank before WP(C).No.18241 OF 2020 4 the Arbitrator is a forged document. In the said circumstances, they have submitted Exts.P4 and P5 representations before the respondents 3 and 4. They have also lodged Ext.P6 complaint before the Station House Officer, Kunnikode Police Station. Their grievance is that no action is being taken on Exts.P4 to P6 till date. However, the Arbitrator is proceeding with the matter at a furious pace. It is in the afore circumstances that the petitioners are before this Court seeking a direction to the 4th respondent to consider Ext. P7 representation in an expeditious manner and also for a further direction to keep in abeyance the arbitration proceedings till the grievances raised in Exts.P4 to P6 are redressed.
3. The 6th respondent has filed a counter-affidavit. They have produced Ext.R6(a) loan application, Ext.R6(b), copy of the Gahan, and Ext.R6(c) Circular issued by the Registrar to bring home the point that the interest claimed by the respondents are in terms of the circular. Referring to Ext.R6(a), it is pointed out that the assertion by the petitioners that what was availed was an agricultural loan is clearly false. According to the said respondents, the allegation that the documents produced before the Arbitrator are forged is clearly unsustainable owing to the above reasons. The intent is to protract the proceedings.
4. In the counter affidavit filed by the 5th respondent, it is stated WP(C).No.18241 OF 2020 5 that if the assertions made by the petitioners are genuine, they can raise the contentions before the forum where the proceedings are pending instead of filing representations before other authorities.
5. I have considered the submissions advanced by Smt T.V. Neema, the learned counsel appearing for the petitioners, Sri M.R. Anison the learned counsel appearing for the Bank and the learned Government Pleader.
6. The contention of the petitioners is that the loan availed by the 1st petitioner is an agricultural loan. This contention will fall to the ground on a perusal of the loan application itself which says that the loan availed is a business loan under the medium-term non-agricultural purpose category. Exhibit R6 (c) circular issued by the Registrar gives the interest rate for such loans at the rate of 15%. If default is committed the Bank is entitled to recover the amount with 17 % interest. There is considerable merit in the submission of the counsel appearing for the respondents that the proper course for the petitioners would be to raise all their legitimate legal contentions before the Arbitrator rather than preferring representations before the respondents 4 and 7. For the very same reason, I do not think that there is any need to keep the proceedings before the Arbitrator in abeyance till the representation submitted by the petitioners before the WP(C).No.18241 OF 2020 6 respondents 4 and 7 are finalised. As the petitioners have appeared before the Arbitrator in Exhibit P1 proceedings and they are contesting the proceedings, it will be open to them to raise their contentions before the Arbitrator. The Arbitrator shall grant reasonable opportunity to the petitioners to substantiate their legal and factual contentions.
With the above directions, this Writ Petition is disposed of.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE NS WP(C).No.18241 OF 2020 7 APPENDIX PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PETITION FILED BY THE 6TH RESPONDENT BANK BEFORE THE 4TH RESPONDENT DATED 02.05.2018.
EXHIBIT P2 TRUE COPY OF THE COUNTER STATEMENT DATED 22.01.2020 IN ARC 2054/2018.
EXHIBIT P3 TRUE COPY OF THE VENKADAPATHRAM SUBMITTED BY THE BANK BEFORE THE 4TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE PETITION DATED 27.08.2020 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE PETITION DATED 27.08.2020 SUBMITTED BEFORE THE 4TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE STATION HOUSE OFFICER, KUNNIKKODE DATED 27.08.2020.
EXHIBIT P7 TRUE COPY OF THE PETITION DATED 25.08.2020 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.
RESPONDENTS' EXHIBITS:
EXHIBIT R6(a) TRUE COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER DATED 24.09.2013 EXHIBIT R6(b) TRUE COPY OF THE REGISTERED GAHAN MORTGAGING THE PROPERTY TO THE BANK EXHIBIT R6(c) TRUE COPY OF CIRCULAR BEARING NO.20/12 DATED 25.05.2012 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES.
EXHIBIT R6(d) TRUE COPY OF THE LEDGER OF 6TH
RESPONDENT'S CO-OPERATIVE BANK
EXHIBIT R6(e) TRUE COPY OF THE BALANCE STATEMENT OF 6TH
RESPONDENT'S CO-OPERATIVE BANK.