Muhammed Shereef K.V vs Ponnani Co-Operative ...
2023 Latest Caselaw 6432 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
        TUESDAY, THE 13TH DAY OF JUNE 2023 / 23RD JYAISHTA, 1945
                         WP(C) NO. 2907 OF 2023
PETITIONER:

            MUHAMMED SHEREEF K.V.
            AGED 51 YEARS
            S/O. NITHYANANDHAN, KIZHAKKOTT VALAPPIL, TIPU NAGAR,
            NANNAMUKKU, MALAPPURAM, PIN - 679517

            BY ADVS.
            ANUPAMA SUBRAMANIAN
            K.R.SRIPATHI


RESPONDENTS:

    1       PONNANI CO-OPERATIVE AGRICULTURAL RURAL DEVELOPMENT BANK
            REPRESENTED BY ITS SECRETARY, KUTTIKADU, P.O. PONNANI,
            MALAPPURAM, PIN - 679577

    2       SPECIAL SALE OFFICER
            PONNANI CO-OPERATIVE AGRICULTURAL RURAL DEVELOPMENT BANK
            KUTTIKADU, P.O. PONNANI, MALAPPURAM, PIN - 679577

            BY ADVS.
            M.VIJAYAKUMAR
            V KRISHNA MENON
            E.K.MADHAVAN(K/587/1979)
            P.VIJAYAMMA(K/116/1970)
            J.SURYA(K/1007/2005)


OTHER PRESENT:

             SMT. PREETHA K K (SR GP)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P (C) No.2907/2023                           -2-

                                      JUDGMENT

The petitioner has approached this court challenging the proceedings

initiated by the 1st respondent bank to recover the amounts due under a loan availed

by the petitioner from the 1st respondent.

2. The learned counsel for the petitioner would submit that the petitioner

was quite regular in paying the monthly installments. It is submitted that owing to

the COVID-19 Pandemic there was some default in repayment of the installments

and the respondents initiated action against petitioner under the provisions of the

Kerala State Co-operative (Agricultural and Rural Development Banks) Act, 1984

(hereinafter referred to as 'the CARD Bank Act'.

The petitioner has approached this court seeking the following reliefs:-

"(i) Issue a writ of Mandamus or writ or similar nature or order or direction to the 1st and 2nd respondents not to dispossess the possession of the petitioner of his secured asset.

(ii) Issue a writ of Mandamus or writ or similar nature or order or direction commanding the 1st and 2nd respondents to clear the loan liability by allowing the petitioner to regularise the loan account in paying off the overdue amount in installments."

3. The learned counsel appearing for the 1 st respondent would refer to the

counter affidavit filed in this case and would submit that the petitioner availed

several credit facilities from the respondent bank. It is submitted that there was

considerable default in repayment of the liabilities and therefore the bank was

compelled to initiate action under the provisions of the CARD Bank Act. It is

submitted that there is absolutely no illegality or infirmity in proceedings initiated

by the bank and both loan accounts of the petitioner had been declared as non-

performing assets. Pertinently it is pointed out that the property of the petitioner

has already sold in auction and therefore the prayer to permit the petitioner to clear

the liability in installments cannot be granted. The learned counsel for the

respondent also referred to the judgment of this court in W.P (C) No.38638/2022

where this court had taken the view that once a sale is conducted, it is for the

borrower to challenge the same in accordance with the provisions of the statute.

4. Having heard the learned counsel appearing for the petitioner and the

learned counsel appearing for the 1 st respondent, I am of the view that there is

considerable merit in the contention taken by the learned counsel for the 1 st

respondent that the prayers sought for have essentially become infructuous. The

proceedings initiated by the respondent bank under the provisions of the CARD

Bank Act have culminated in the sale of the property belonging to the petitioner.

Only confirmation is pending. It is in the above circumstances the prayers sought

for by the petitioner cannot be granted. The writ petition fails and it is accordingly

dismissed. However, considering the fact that the writ petition was pending in this

court from 23-01-2023 till 13-06-2023, it is directed that the period from 23-01-

2023 till 13-06-2023 shall be excluded for the purpose of determining any period of

limitation within which the petitioner had to challenge the sale proceedings in

terms of Section 21 of the CARD Bank Act. It is also made clear that since the sale

has not been confirmed till date, the same shall not be confirmed for a further

period of 15 days to enable the petitioner to avail any alternative remedy that may

be available.

Sd/-

GOPINATH P.

JUDGE AMG

APPENDIX OF WP(C) 2907/2023

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE AUCTION NOTICE PURSUANT TO M. NO.

14273 DATED 29.12.2022