Kerala High Court
Abdul Salam vs State Of Kerala on 4 January, 2021
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
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
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
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
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.
