Muhammed Yousuf vs Mayyanad Regional Co-Operative ...
2023 Latest Caselaw 8177 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
     TUESDAY, THE 1ST DAY OF AUGUST 2023 / 10TH SRAVANA, 1945
                        WP(C) NO. 6102 OF 2023
PETITIONERS:

    1     MUHAMMED YOUSUF,
          AGED 62 YEARS,
          S/O. ABDUL HAMEED, NIDHIN NIVAS, VADAKKUKARAKIZHAKK
          CHERIYIL, UMAYANELLUR, KOLLAM - 691 020.
    2     SEENATH,
          AGED 55 YEARS,
          W/O MUHAMMED YOUSUF, NIDHIN NIVAS, VADAKKUKARAKIZHAKK
          CHERIYIL, UMAYANELLUR, KOLLAM - 691 020.
          BY ADVS.
          V.K.PEERMOHAMED KHAN
          GIRISH KUMAR V.C


RESPONDENTS:

    1     MAYYANAD REGIONAL CO-OPERATIVE BANK LTD.,
          REPRESENTED BY ITS GENERAL MANAGER, MAYYANAD,
          KOLLAM - 691 303.
    2     THE AUTHORISED OFFICER,
          MAYYANAD REGIONAL CO-OPERATIVE BANK LTD.,
          MAYYANAD, KOLLAM - 691 303.
          BY ADVS.
          V.JAYAPRADEEP
          ARSHIJA T.P.(K/003533/2022)
          LILIN LAL(K/114/2021)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 6102 OF 2023
                                   2

                             JUDGMENT

The petitioners availed separate loans from the respondent

Bank. On default being committed, proceedings were initiated

against the petitioners under the provisions of the Kerala Co-

operative Societies Act, 1969 and awards were obtained by the Bank

determining the amounts payable by each of the petitioners. On the

awards being put to execution, the petitioners approached the Co-

operative Ombudsman with a complaint, which was rejected in the

year 2020 finding that the Co-operative Ombudsman has no

jurisdiction in the matter. It is the case of the petitioners that they

had no notice of the Arbitration proceedings and the awards are

ex parte. It is submitted that the petitioners could not contest the

claim of the Bank in any manner. It is submitted that the 1st

petitioner became bed ridden in the year 2018 and the default

occurred only on account of that fact. It is submitted that the

petitioners were running an MSME unit and the same had to be

closed down owing to the illness of the 1st petitioner.

2. The learned Counsel appearing for the respondent Bank

refers to the counter affidavit filed in this Court. It is submitted that

the petitioners were quite irregular in repaying the loan liability. It

is submitted that there is practically no payment towards the loan WP(C) NO. 6102 OF 2023

liability after the year 2014. It is submitted that the petitioners

were clearly aware of the arbitration proceedings initiated by the

Bank, the availability of the One Time Settlement scheme as also

the execution proceedings. It is submitted that the petitioners

cannot therefore contend that the awards were ex parte and without

notice to them. It is submitted that the petitioners had purposefully

kept away from the arbitration proceedings and they cannot be now

heard to contend that they were not aware of the arbitration

proceedings. It is submitted that even after the dismissal of the

complaint by the Co-operative Ombudsman in the year 2020, the

petitioners have not taken any steps either to set aside the ex parte

award or to challenge the same in appeal etc and therefore, at this

distance of time, it may not be possible for the petitioner to avail

any statutory remedy that may have been open to them. It is

submitted that notwithstanding the above, the Bank has no

objection in some instalments being granted to the petitioners to

clear the liability. It is submitted that the total liability as on

26.7.2023 is Rs.70,48,282/- and the Bank has no objection in

permitting some reasonable instalments to the petitioners to clear

the liability.

3. Having regard to the circumstances of the case and the WP(C) NO. 6102 OF 2023

situation now prevailing, apart from the submissions made as

recorded above, I am of the view that the petitioners can be granted

an opportunity to repay the outstanding amount in 18 instalments.

4. Accordingly, there will be a direction to the respondent

Bank to accept repayment of the entire outstanding amount of

Rs.70,48,282/-(Rupees seventy lakhs forty eight thousand two

hundred and eighty two only) along with any accrued interest, costs

and charges from the petitioners on the following conditions:

(i)The outstanding amount of Rs.70,48,282/-(Rupees seventy lakhs forty eight thousand two hundred and eighty two only) along with any accrued interest, costs and charges shall be repaid in 18 equated monthly instalments.

(ii)The first instalment shall be paid on or before 25.08.2023 and the subsequent instalments shall be paid on or before the 25th day of every succeeding month.

(iii) In the event of default of any one instalment, the respondent bank shall be entitled to proceed in accordance with law.

(iv) In order to enable the petitioners to repay the entire amounts, all coercive proceedings shall be kept in abeyance.

The writ petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE

DK WP(C) NO. 6102 OF 2023

APPENDIX OF WP(C) 6102/2023

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AWARD OF THE ARBITRATOR- THE ASSISTANT REGISTRAR GENERAL CO-OPERATIVE SOCIETIES KOLLAM DATED 29.05.2018 IN ARC 735/2018 Exhibit P2 TRUE COPY OF THE AWARD OF THE ARBITRATOR- THE ASSISTANT REGISTRAR GENERAL CO-OPERATIVE SOCIETIES KOLLAM DATED 29.05.2018 IN ARC 736/2018 Exhibit P3 TRUE COPY OF THE PETITION PREFERRED BY THE PETITION BEFORE THE CO-OPERATIVE SOCIETIES OMBUDSMAN DURING OCTOBER 2018 WHICH IS NUMBERED AS COM364/2018 AGAINST EXT-P.1 AWARD Exhibit P4 TRUE COPY OF THE PETITION PREFERRED BY THE PETITION BEFORE THE CO-OPERATIVE SOCIETIES OMBUDSMAN DURING OCTOBER 2018 WHICH IS NUMBERED AS COM363/2018 AGAINST EXT-P.2 Exhibit P5 TRUE COPY OF THE ORDER OF THE CO-

OPERATIVE SOCIETIES OMBUDSMAN DATED 03.03.2020 IN COM364/2018 AGAINST EXT-

P.1 Exhibit P6 TRUE COPY OF THE ORDER OF THE CO-

OPERATIVE SOCIETIES OMBUDSMAN DATED 03.03.2020 IN COM363/2018 AGAINST EXT-

P.2 AWARD Exhibit P7 TRUE COPY OF THE ATTACHMENT NOTICE DATED 10.10.2022 IN EA 1438/2018 Exhibit P8 TRUE COPY OF THE ATTACHMENT NOTICE DATED 10.10.2022 IN EA 1439/2018 RESPONDENT ANNEXURES ANNEXURE R1[a] TRUE COPY OF THE LOAN APPLICATION DATED 11.10.2012 OF THE OF THE 1ST PETITIONER ANNEXURE R1[b] TRUE COPY OF THE LOAN APPLICATION DATED 11.10.2012 OF THE OF THE 2ND PETITIONER ANNEXURE R1[c] TRUE COPY OF THE GEHAN REGISTERED AT THE KOTTIYAM SUB REGISTRY DATED 15.11.2012 ANNEXURE R1[d] TRUE COPY OF THE GEHAN REGISTERED AT THE KOTTIYAM SUB REGISTRY DATED 15.11.2012 WP(C) NO. 6102 OF 2023

ANNEXURE R1[e] TRUE COPY OF THE AFFIDAVIT OF THE 1ST PETITIONER DATED 15.11.2012 ANNEXURE R1[f] TRUE COPY OF THE AFFIDAVIT OF THE 2ND PETITIONER DATED15.11.2012 ANNEXURE R1[g] TRUE COPY OF THE LIABILITY DEEDS EXECUTED BY THE 1ST PETITIONER DATED 15.11.2012 ANNEXURE R1[h] TRUE COPY OF THE LIABILITY DEEDS EXECUTED BY THE 2ND PETITIONER DATED 15.11.2012 ANNEXURE R1[i] TRUE COPY OF THE E.A.DEMAND NOTICE NO.1438/2018 SERVED ON THE 1ST PETITIONER DATED.15.9.2018 ANNEXURE R1[j] TRUE COPY OF THE E.A.DEMAND NOTICE NO.1439/2018 SERVED ON THE 2ND PETITIONER DATED 15.9.2018 ANNEXURE R1[k] TRUE COPY OF THE DEMAND NOTICE-2 NO.1438/2018 ISSUED TO THE 1ST PETITIONER DATED.12.4.2022 ANNEXURE R1[l] TRUE COPY OF THE DEMAND NOTICE-2 NO.1439/2018 ISSUED TO THE 2ND PETITIONER DATED.12.4.2022 ANNEXURE R1[m] TRUE COPY OF THE STATEMENTS OF ACCOUNTS UP TO 16.3.2023 OF THE 1ST PETITIONER ANNEXURE R1[n] TRUE COPY OF THE STATEMENTS OF ACCOUNTS UP TO 16.3.2023 OF THE 2ND PETITIONER