Vinod Sankar vs Secretary, Ambalappara Service ...
2024 Latest Caselaw 15641 Ker

Kerala High Court

Vinod Sankar vs Secretary, Ambalappara Service ... on 6 June, 2024

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
         THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
   THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
                   WP(C) NO. 33199 OF 2014
PETITIONER:

          VINOD SANKAR
          AGED 38 YEARS
          S/O.KUTTAN NAIR,
          KARIVEETIL,AMBALAPARA,
          OTTAPALAM TALUK,
          PALAKKAD DISTRICT
          BY ADV SRI.P.JAYARAM


RESPONDENTS:

    1     SECRETARY,
          AMBALAPPARA SERVICE CO-OPERATIVE BANK LTD.
          P.O. AMBALAPARA,
          PIN 679 512.
    2     THE SPECIAL SALE OFFICER
          AMBALAPARA SCB GROUP, OFFICE OF THE ASSISTANT
          REGISTRAR CO-OPERATIVE SOCIETIES (GENERAL),
          OTTAPALAM - 679 101.
    3     THE ASSISTANT REGISTRAR GENERAL CO-OPERATIVE
          SOCIETIES
          SUNDARA IYER ROAD, OTTAPPALAM - 679 101.
    4     ABDUL SHBEER SO. ECHAYIL HAMSA ARAVAKKADU
          AMABALAPPARA P.O.
          PALAKKAD DISTRICT PIN 679 512.
    5     STATE OF KERALA
          REPRESENTED BY SECRETARY, DEPARTMENT OFCO-OPERATION
          GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM - 695
          001.
          BY ADVS.
          SRI.R.SREEHARI
          SRI.K.RAJESH SUKUMARAN
          C.P.SABARI(K/973/2010)
          SRI.BIMAL K NATH-SR.GP,SMT.K.B.SONY-GP


     THIS WRIT PETITION (CIVIL) HAVING FINALLY BEEN HEARD ON
06.06.2024, ALONG WITH WP(C) 22454/2016, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C)NOs.33199/2014 & 22454/2016

                                      2




              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
            THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
     THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
                        WP(C) NO. 22454 OF 2016


   PETITIONER:

              VINOD SANKAR
              KARIVEETIL,
              AMBALAPARA,
              OTTAPALAM TALUK,
              PALAKKAD DISTRICT.
              BY ADV SRI.P.JAYARAM


   RESPONDENTS:
       1     SECRETARY,
             AMBALAPPARA SERVICE CO-OPERATIVE BANK LTD.
             AMBALAPPARA SERVICE CO-OPERATIVE BANK LTD.,
             P.O. AMBALAPARA,
             PIN - 679 512.
       2     THE SPECIAL SALE OFFICER
             AMBALAPARA SCB GROUP,
             OFFICE OF THE ASSISTANT REGISTRAR,
             CO-OPERATIVE SOCIETIES (GENERAL),
             OTTAPALAM - 679 101.
       3     THE ASSISTANT REGISTRAR GENERAL
             CO-OPERATIVE SOCIETIES,
             SUNDARA IYER ROAD,
             OTTAPALAM
             PIN - 679 101.
       4     THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
             GENERAL
             CIVIL STATION,
             PALAKKAD
             PIN - 678 001.
 WP(C)NOs.33199/2014 & 22454/2016

                                   3




        5       ABDUL SHABEER SO.ECHAYIL HAMSA
                ARAVAKKADU,
                AMBALAPPARA P.O.,
                PALAKKAD DISTRICT,
                PIN-679 512.
        6       STATE OF KERALA
                REPRESENTED BY SECRETARY, DEPARTMENT OF CO-
                OPERATION, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM -695 001.
                BY ADVS.
                SRI.R.SREEHARI
                SRI.K.RAJESH SUKUMARAN
                SRI.SACHIN VYAS
                C.P.SABARI(K/973/2010)
                SRI.BIMAL K NATH-SR.GP,SMT.K.B.SONY-GP


            THIS WRIT PETITION (CIVIL) HAVING FINALLY BEEN HEARD
   ON 06.06.2024, ALONG WITH WP(C).33199/2014, THE COURT ON
   THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C)NOs.33199/2014 & 22454/2016

                                    4




                              JUDGMENT

1. The Petitioner in both these writ petitions is the same person.

W.P(C) No.33199/2014 is filed by the petitioner challenging Ext.P2

order of the 2nd respondent dated 28/10/2014 by which Ext.P1

Application dated 14/08/2014 submitted by the petitioner under Rule

83 of the Kerala Co-operative Societies Rule to set aside the sale was

dismissed.

2. It is revealed from Ext.P1 that the sale was conducted on

21/07/2014 with respect to 82.5 cents of land belonging to the

petitioner. During the pendency of W.P(C) No.33199/2014, sale was

confirmed as per Order dated 28/01/2016 passed by the Joint

Registrar of Cooperative Societies and hence WP(C) No.22454/2016

is filed by the petitioner challenging the said Order producing it as

Ext.P1.

3. Ext.P1 in W.P(C) No. 22454/2016 shows that the property was

sold for an amount of Rs.10,75,000/- to the 4 th respondent in W.P(C)

No.33199/2014.

WP(C)NOs.33199/2014 & 22454/2016

4. The contentions of the petitioner are that the property was sold

without complying the procedures prescribed under Rule 81 of the

Kerala Co-operative Societies Rules, without proper publication for a

low price and that the entire property was not required to be sold for

realizing the debt.

5. Both the writ Petitions are admitted and have been remaining in

this Court without any interim order in favour of the petitioner.

6. It is submitted by the learned counsels for the petitioner that the

auction purchaser has not taken delivery of the property till this date

and the property has still been remaining with the petitioner.

7. Going by the pleadings in W.P(C) No.33199/2014, the petitioner

has got a contention that he had approached this Court earlier by filing

W.P(C) No.718/2014 and this Court had granted facility to pay the debt

in instalments but Bank did not permit him to liquidate liability in

instalments.

8. The 1st respondent Bank has filed Counter Affidavits in both the WP(C)NOs.33199/2014 & 22454/2016

writ petitions opposing the prayers in the writ petition. The 1 st

respondent filed I.A.No.1/2014 in both the Writ Petitions with a prayer

to accept documents producing copy of the judgment dated

28/01/2014 in W.P(C) No.718/2014 as Ext.R1(a) by which instalment

benefit was directed to be granted to the petitioner and Letter dated

15/02/2014 giving instalment benefit to the petitioner as Ext.R1 (b).

9. I heard the learned counsels for the petitioner, the 1 st respondent,

& the Auction Purchaser and the Learned Government Pleader for

official respondents.

10. The learned Counsel for the petitioner cited the decisions - Ram

Kishun &Others v. State of UP & Others [AIR 2012 (SC) 2288],

Antony.P.X. v. State of Kerala & Others [2017 (3) KLT 261], Thampi

v. Kunnathunad Taluk Primary Co-operative Agrl. & R.D Bank Ltd

[2012(3) KLT 628] and People's Urban Co-operative Bank Ltd v.

Mohanan [1992 (2) KLT 745] in support of his contentions.

11. Citing Ram Kishun's case, the learned Counsel for the

petitioner argued that the authority has to make a proper valuation WP(C)NOs.33199/2014 & 22454/2016

before fixing a reserve price for conducting an auction. He referred to

Para 9 that a right to hold property is a constitutional right as well as a

human right and a person cannot be deprived of this property except in

accordance with the provisions of the statute.

12. He cited Anotony.P.X case that in view of rule 85 of the Kerala

Co-operative Societies Rules it is imperative for the Sale Officer to sell

the immovable property that is sufficient to discharge the amount due.

He argued that no such enquiry was conducted before effecting the

sale in the present case.

13. He cited Thampi's case which mandates that only a minimum

extent of land, that is required to settle the liability should be sold.

14. He cited People's Urban Co-operative Bank Ltd's case

holding that sale can be set aside even without an application in that

regard from the defaulter.

15. On the other hand, the learned counsel for the 1 st respondent-

Bank submitted that he had not made any application for sale of a WP(C)NOs.33199/2014 & 22454/2016

portion of a property before effecting sale. Exts. R1(a) and R1(b) would

show that he was aware of the sale proceedings before the date of

sale. Though this Court by Ext.R1(a) directed the 1 st respondent to give

instalment facility to the petitioner and the Bank issued Ext. R1(b)

Letter granting instalment facility the same was not availed by the

petitioner. On the other hand, he filed the present writ petitions with an

incorrect statement that the Bank did not permit the petitioner to

liquidate the liability in instalments. He invited my attention to the

endorsement in Ext. R1(b) by which the wife of the petitioner received

Ext. R1(b).

16. The learned counsel for the Auction Purchaser submitted that he

purchased the property as early as on 21.07.2014 by depositing the full

amount of Rs.10,75,000/- and on account of the successive writ

petitions filed by the petitioner, he could not get delivery of the property

till this date and that he has been deprived of the enjoyment of the

property for the last nearly 10 years.

17. After hearing the parties, I find that in Ext.P1 Petition to set aside WP(C)NOs.33199/2014 & 22454/2016

the sale, though the petitioner has raised all sorts of objections, it does

not disclose the details of the material irregularity, mistake or fraud in

publishing or conducting the sale as mandatorily required under Rule

83 of the Cooperative Societies Rules to set aside the sale. He has

made only vague allegations with respect to the value of the property

and publication. Since the petitioner had knowledge about the sale

proceedings, well before the sale he could have objected to the

reserve price for the property and could have requested the Sale

Officer to sell a portion of the property which is required for realizing

the debt. The amount outstanding from the petitioner was

Rs.8,31,678/- as stated by the petitioner and the amount at which the

property was sold was only Rs.10,75,000/-. Hence, prima facie, the

contention of the petitioner that only a portion of the property is

sufficient to discharge the debt is not sustainable. There is no material

before me to show that the property was having any higher valuation.

The petitioner could have sought direction in this regard in the earlier

writ petition. He did not even avail instalment facility granted on the

basis of the earlier writ petition. Though the present writ petitions have WP(C)NOs.33199/2014 & 22454/2016

been remaining in this Court since 2014/2016, the petitioner has not

made any earnest efforts to settle the liability and to avoid the sale till

this date. He has been enjoying the property all along despite the

payment of full value by the Auction Purchaser.

18. I do not find any reason to interfere with the orders impugned in

these writ petitions and the same are accordingly dismissed.

Sd/-

M.A.ABDUL HAKHIM JUDGE sms WP(C)NOs.33199/2014 & 22454/2016

APPENDIX OF WP(C) 22454/2016

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER NO.1327/2015/A.E.L./K.DIS DATED 28.01.2016 ISSUED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), PALAKKAD.

Exhibit P2 TRUE COPY OF THE APPLICATION DATED 14.08.2014 TO SET ASIDE THE SALE DATED 21.07.2014.

Exhibit P3 TRUE COPY OF THE ORDER NO. 1693/2014/C DATED 28.10.2014 ISSUED BY THE 2ND RESPONDENT.

   Exhibit P4         TRUE   COPY    OF   THE    LETTER DATED
                      13.02.2016 SENT BY THE PETITIONER TO
                      4TH RESPONDENT
   Exhibit P5         TRUE   COPY    OF   THE    LETTER DATED
                      29.04.2016 SENT BY THE 3RD RESPONDENT
                      TO THE PETITIONER.
   Exhibit P6         TRUE COPY OF THE SALE NOTICE ISSUED BY
                      THE 2ND RESPONDENT UNDER RULE 81 (E) OF

THE KERALA CO-OPERATIVE SOCIETIES RULES FOR THE SALE OF THE PETITIONER'S PROPERTY TO BE HELD ON 09/01/2014 TO REALIZE THE DEBT WP(C)NOs.33199/2014 & 22454/2016

APPENDIX OF WP(C) 33199/2014

RESPONDENT EXHIBITS Exhibit R1(a) TRUE COPY OF THE JUDGMENT DATED 28/01/2014, PASSED IN W.P.( C) NO.718/2014, BY THE HON'BLE HIGH COURT OF KERALA Exhibit R1 (b) TRUE COPY OF THE LETTER DATED 15/02/2014 ISSUED BY THE SECRETARY, AMBALAPARA SERVICE CO-OP BANK LTD NO.F.1512 ADDRESSED TO VINOD KUMAR, S/O.KUTTAN NAIR, KARIVEETTIL, AMBALAPARA PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE APPLICATION DATED 14- 08-2014 TO SET ASIDE THE SALE DATED 21- 07-2014.

Exhibit P2 TRUE COPY OF THE ORDER NO. 1693/2014/C DATED 28-10-2014 ISSUED BY THE 2ND RESPONDENT.