IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 29TH DAY OF JUNE 2022/8TH ASHADHA, 1944
WP(C) NO. 28760 OF 2021
PETITIONERS:
1 LOVELY BIJU, W/O. BIJU THOMAS,
MAZHUVANCHERIL HOUSE, MOONNILAVU P.O.,
ERATTUPETTA, KOTTAYAM DISTRICT.
2 BIJU THOMAS, S/O. THOMAS,
MAZHUVANCHERIL HOUSE, MOONNILAVU P.O.,
ERATTUPETTA, KOTTAYAM DISTRICT.
BY ADV M.V.RAJENDRAN NAIR
RESPONDENTS:
1 THE KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD.,
DISTRICT CO-OPERATIVE BUILDING,
POST BOX NO. 140, KOTTAYAM, PIN 686 001
REP. BY ITS AUTHORISED OFFICER.
2 THE SECRETARY, THE KOTTAYAM DISTRICT
CO-OPERATIVE BANK LTD., EVENING BRANCH,
ERATTUPETTA P.O., KOTTAYAM DIST. PIN 686 121.
3 JIJI MON, S/O. AYYAPPAN,
AGED ABOUT 57 YEARS,
VARICKAMACKAL HOUSE, PLASANAL P.O.,
THALAPPULAM, MEENACHIL TALUK,
KOTTAYAM DISTRICT PIN 686 579.
BY ADVS.
R1-R2 ATHUL SHAJI
R3 C.S.MANILAL
S.NIDHEESH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.28760/2021
:2 :
JUDGMENT
Dated this the 29th day of June, 2022 The 1st petitioner had availed a loan from the 1st respondent Bank in the year 2012. The 2 nd petitioner is the guarantor in respect of the loan. On default being committed, the property was brought to sale by the 1 st respondent Bank under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (hereinafter referred to as the SARFAESI Act). It was sold in auction to the 3 rd respondent for a sum of `10,51,000/-. The 3rd respondent paid a sum of `2,05,000/- and did not remit the balance amount as the petitioners had by that time approached this Court through WP(C) No.35491/2017 and had obtained an interim order against confirmation of the sale in favour of the 3 rd respondent.
WP(C) No.28760/2021 :3 :
2. The learned counsel appearing for the petitioners would submit that the interim order of this Court in WP(C) No.35491/2017 was on condition that the petitioners remit a sum of `2 lakhs towards the loan account. It is submitted that this condition was complied with and thereafter a further amount of `3 lakhs was also paid to the 1st respondent Bank. It is submitted that the liability is almost completely wiped out and all that remains is payment of further interest if any. It is submitted that the earlier writ petition filed by the petitioners was thereafter dismissed as withdrawn as it was felt that the entire matter had been settled. It is submitted that the 1 st respondent Bank however did not take any steps to cancel the sale or to return the amount deposited by the 3 rd respondent and now the petitioners are put to great difficulty.
3. I have heard the learned counsel for the respondent Bank and the learned counsel appearing for the 3rd respondent.
4. It is submitted, on behalf of the respondents, that the petitioners should not have withdrawn the earlier writ WP(C) No.28760/2021 :4 : petition and they should have obtained the relief of the sale being set aside if the petitioners had a case that the entire liability had been settled. It is submitted that the present writ petition is not maintainable, as it essentially seeks to re- agitate the claims made in the earlier writ petition, which was dismissed as withdrawn. It is submitted that the principles of constructive resjudicata apply to writ proceedings also and the petitioners are not entitled to any relief.
5. Having heard the respective counsel for some time, I suggested to the learned counsel for the petitioners and the learned counsel for the 3rd respondent that on the petitioner compensating the 3rd respondent, the matter can be treated as settled and the Bank can be directed to release the amount of `2,05,000/- to the 3rd respondent forthwith. The learned counsel appearing for the 3 rd respondent with much reluctance agreed with the suggestion put forth by the Court.
Accordingly, I direct that on a sum of `60,000/- being paid by the petitioners to the 3 rd respondent, the entire claim WP(C) No.28760/2021 :5 : of the 3rd respondent shall be treated as settled. The Bank shall also release forthwith the amount of `2,05,000/- deposited by the 3rd respondent. If the petitioners have any remaining liability with the 1st respondent Bank, they shall settle the same with the 1st respondent Bank. The amount of `60,000/- shall be paid by the petitioners to the 3 rd respondent within one month from today. It is made clear that further extension of time will not be granted for this purpose.
Sd/-
GOPINATH P.
JUDGE ncd/29.06.22