Micheal vs Maradu Service Co-Coperative ...
2021 Latest Caselaw 14984 Ker

WP(C) NO. 6902 OF 2014             1




                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
      FRIDAY, THE 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943
                         WP(C) NO. 6902 OF 2014
PETITIONER/S:

               MICHEAL
               AGED 60 YEARS
               S/O. DOMICIANOSE, RESIDING AT KOLOTHUM HOUSE,
               NETTOOR.P.O., PIN CODE-682304, NETTOOR DESOM, MARADU
               VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

              BY ADVS.
              SRI.K.C.ELDHO
              SRI.SURAJ.S.
              SRI.ANIL R.NATH
              SRI.ANEESH JAMES
              SRI.A.V.CHARLES
              SRI.JIJO THOMAS
              SRI.MALLENATHAN.M.
              SMT.NEYA JAMES



RESPONDENT/S:

      1        MARADU SERVICE CO-COPERATIVE BANK LIMITED
               NETTOOR BRANCH, REPRESENTRED BY ITS SECRETARY,
               NETTOOR.P.O., PIN CODE-682304, NETTOOR DESOM,
               MARADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM
               DISTRICT.

      2        THE BOARD OF DIRECTORS OF MARADU SERVICE CO-
               OPERATIVE BANK LIMITED
               REPRESENTED BY ITS PRESIDENT, MARADU SERVICE CO-
               OPERATIVE BANK LIMITED, NETTOOR.P.O., PIN CODE-
               682304, NETTOOR DESOM, MARADU VILLAGE, KANAYANNUR
               TALUK, ERNAKULAM DISTRICT.

      3        THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
               ERNAKULAM, OFFICE OF THE JOINT REGISTRAR CO-
               OPERATIVE SOCIETIES, DISTRICT CO-OPERATIVE BANK
               BNUILDING, KAKKANAD.P.O., COCHIN-682030, KANAYANNUR
 WP(C) NO. 6902 OF 2014            2




               TALUK, ERNAKULAM DISTRICT.

      4        HAINA
               AGED 19 YEARS
               D/O. LATE EDWIN JOSE AND LATE MINI @ VIOLET,
               RESIDING AT VELIYATH HOUSE,NETTOOR.P.O., PIN CODE-
               682304, NETTOOR DESOM, MARADU VILLAGE, KANAYANNUR
               TALUK, ERNAKULAM DISTRICT.

      5        SRI. JOSEPH
               AGED 79 YEARS
               S/O. JOSEPH,RESIDING AT KOLOTHUM HOUSE,
               NETTOOR.P.O., PIN CODE-682304, NETTOOR DESOM,
               MARADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM
               DISTRICT.

              BY ADVS.
              SRI.T.B.GAFOOR
              SRI.A.BALAGOPALAN
              SRI.T.K.RADHAKRISHNAN
              SRI.A.RAJAGOPALAN
              SMT.S.SREEDEVIALP

OTHER PRESENT:
          SMT.MABLE.C.KURIAN, GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) NO. 6902 OF 2014               3




                        P.V.KUNHIKRISHNAN, J
                  --------------------------------------------
                      W.P.(C.) No.6902 of 2014.
                     --------------------------------------
                 Dated this the 16th day of July, 2021


                                JUDGMENT

According to the petitioner, he is the absolute owner in

possession of property covered by Ext.P1 document. The

petitioner stated in the writ petition that the said property was

mortgaged with the 1st respondent-Bank for availing a loan. It

is also stated in the writ petition that, during the year 2007,

Ext.P3 agreement for sale of the property covered by Ext.P1

was also executed between the petitioner and the 5 th

respondent. According to the petitioner, conditions in Ext.P3

agreement are not complied by the 5th respondent and Ext.P3

agreement became invalid. One of the condition is that the 5 th

respondent will repay the loan amount of Rs.5 lakhs availed by

the petitioner from the 1st respondent. According to the

petitioner, no payment was made by the 5th respondent till

2011. The petitioner paid several instalments whenever he

received notice from the Bank. According to the petitioner,

since the default increased, the 1st respondent-Bank initiated

legal proceedings and ARC No.423 of 2011 was preferred

against the petitioner. On receipt of the summons in the said

proceedings, the petitioner approached the 1st respondent and

submitted Ext.P7 representation expressing his willingness to

close the loan account. But, the petitioner was asked to

consult the Bank again during the 1st week of March 2014.

The petitioner also preferred Ext.P8 suit before the Munsiff

Court, Ernakulam against respondent Nos. 4 and 5 seeking

declaration that Ext.P3 is not binding on the petitioner.

According to the petitioner, the respondent Nos. 4 and 5 on

receiving notice in Ext.P8 suit, approached respondent Nos. 1

and 2 and they colluded together. The petitioner contended

that, they created records by making payment on 25.2.2014

without the knowledge or consent of the petitioner. It is the

definite case of the petitioner that the respondent Nos.1 and

2, along with respondent Nos. 4 and 5 colluded together to

snatch away the property from the petitioner, which according

to the petitioner is worth more than 1 crore.

2. In such circumstances, the petitioner preferred

Ext.P9 complaint before the 3rd respondent under Sec. 66 of

the Kerala Co-operative Societies Act. Consequently, Ext.P10

order was passed by the Assistant Registrar (General),

Kanayannur Taluk on 12.6.2014 in which it is specifically

stated that since the loan account is cleared, the original

mortgage document should be given to the petitioner

forthwith. In Ext.P10, it is stated that it should be returned

within 7 days. Ext.P10 was dated 12.6.2014. The grievance of

the petitioner is that even now, the document is not returned

to the petitioner. Hence, this writ petition is filed with the

following prayers :

"a. Issue a writ of mandamus or any other appropriate writ order or direction compelling the respondents 1 and 2 to return all the original documents of the petitioner's property covered by Exhibit P1 within a time limit stipulated by this Hon'ble Court.

b. Issue a writ of mandamus or any other appropriate writ, order or direction compelling the 3 rd respondent to consider Exhibit P9 and take action on the same in accordance with law within a time limit stipulated by this Hon'ble Court.

c. Issue a writ of mandamus or any other appropriate writ, order or direction compelling the 1 st respondent not to hand over the title deeds of the petitioner with respect to Exhibit P1 property to respondent 4 and 5 or create liability on the same.

d. Issue such other writ, order or direction as this Hon'ble Court deems fit to grant considering the peculiar circumstances of the case."

3. It is submitted that the 5th respondent died pending

the writ petition. The counsel for the petitioner submitted that

no relief is prayed against the 5th respondent and therefore, he

is not pressing the petition filed for impleading the legal heirs

of the 5th respondent. Therefore, the same is closed.

4. A counter affidavit is filed by the 1st respondent

stating that the Bank accepted the loan due from the

contesting respondents because of the specific authorisation

from the petitioner. The Bank produced several documents to

substantiate the case that there is no collusion as alleged in

the writ petition and the Bank was acting with bonafide. The

first respondent submitted that the loan was closed based on

the authorization letter issued by the petitioner and the loan

was closed by the 4th respondent.

5. The counsel, who is appearing for respondent Nos. 4

and 5 submitted that a suit is pending before the Munsiff

Court, Ernakulam as O.S.No. 268 of 2016. The counsel for the

contesting respondents also submitted that a counter claim is

also pending. The counsel submitted that the matter is seized

by the civil court. In such circumstances, the main

apprehension pointed out by the contesting respondents is

that the intention of the petitioner is to alienate the property.

The counsel submitted that the prayer in the writ petition may

not be allowed.

6. It is an admitted fact that the petitioner availed a

loan from the 1st respondent-Bank. It is also an admitted fact

that the loan account is completely closed. According to the

petitioner, the contesting respondents have no authority to

clear the account. According to the contesting respondents,

they paid the loan dues because of the authorisation from the

petitioner and also based on Ext.P3 agreement. The counsel

for the Bank submitted that the loan dues were accepted from

the contesting respondents because of Ext.P3 and other

documents produced by them.

7. I do not want to make any observation about the

same. These are disputed facts. The matter is seized by the

civil court. The matter is to be considered by the civil court,

untrammeled by any observation from this Court. But one

thing is clear. Ext.P10 is the order passed by the Assistant

Registrar (General), Kanayannur Taluk dated 12.6.2014. The

counsel for the 1st respondent conceded before me that the

Bank has not challenged Ext.P10 order. It is also conceded by

all the parties that there is no prohibitory order from the civil

court against Ext.P10 order. In such circumstances, according

to me, the 1st respondent is bound to obey Ext.P10 order and

return the documents referred in Ext.P10 forthwith. I make it

clear that I passed this order because Ext.P10 order is final

and there is no challenge on Ext.P10 either from the side of

the 1st respondent or from the side of the contesting

respondents. In Ext.P10, it is clearly stated that since the loan

amount is cleared, the document of the mortgage property

should be returned to the petitioner. In the light of the fact

that Ext.P10 became final, the 1st respondent is bound to obey

the same. Therefore, this writ petition can be disposed of,

directing the 1st respondent to return the document referred

in Ext.P10 forthwith. But I make it clear that all the

contentions of the petitioner and the contesting respondents

about the merit of the case are left open.

Therefore, this writ petition is disposed of, in the

following manner :

1) The first respondent is directed to return the document

referred in Ext.P10 and obey the directions in Ext.P10

forthwith, at any rate, within one month from the date of

receipt of a copy of this judgment.

2) The contentions of the petitioner and the contesting

respondents about the merit of the case are left open and to

be decided in the suit pending before the civil court.

SD/-

P.V.KUNHIKRISHNAN JUDGE SKS

APPENDIX OF WP(C) 6902/2014

PETITIONER EXHIBITS

EXHIBIT P1. A TRUE COPY OF THE SALE DEED NO. 1221 OF 1999 OF SRO MARADU

EXHIBIT P2. A TRUE COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY, MARADU GRAMA PANCHAYATH DATED 6-11-2006.

EXHIBIT P3. A TRUE COPY OF THE AGREEMENT FOR SALE EXECUTED BETWEEN THE PETITIONER AND THE 5TH RESPONDENT.

EXHIBIT P4. A TRUE COPY OF THE ARC NO. 423 OF 2011 PREFERRED BY THE FIRST RESPONDENT BANK.

EXHIBIT P5. A TRUE COPY OF THE SUMMONS DATED 13-6-

2011 IN ARC NO. 423 OF 2011.

EXHIBIT P6. A TRUE COPY OF THE STATEMENT DATED 12-

12-13 ISSUED BY THE FIRST RESPONDENT BANK.

EXHIBIT P7. A TRUE COPY OF THE WRITTEN REQUEST SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 13-2-2014.

EXHIBIT P8. A TRUE COPY OF THE PLAINT IN O.S.NO.

182 OF 2014 ON THE FILES OF THE MUNSIFFS COURT, ERNAKULAM.

EXHIBIT P9. A TRUE COPY OF THE REPRESENTATION/COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 7-3-2014.

RESPONDENT'S EXHIBITS

EXHIBIT R4(a) THE TRUE COPY OF THE RELEVANT PAGE OF THE PASSBOOK ISSUED BY THE 1ST RESPONDENT BANK PERTAINING TO THE SAVINGS BANK ACCOUNT BEARING NO.9433

EXHIBIT R4(b) THE TRUE COPY OF THE RECEIPT DATED 25.2.2014 SHOWING PAYMENT OF RS.9,29,243/- BY THE 4TH RESPONDENT

EXHIBIT R4(c) THE TRUE COPY OF THE PLAINT IN O.S.NO.268/2016 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, ERNAKULAM

EXHIBIT R4(d) THE TRUE COPY OF THE WRITTENSTATEMENT FILED BY MYSELF AND THE 5TH RESPONDENT IN EXHIBIT R4(C) SUIT DATED 30.11.2016.