Lovely Biju vs The Kottayam District ...
2022 Latest Caselaw 8060 Ker

         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

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

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

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