Kerala High Court
Sabu Cyriac vs Vadayar Service Co-Operative Bank on 31 October, 2025
2025:KER:82259
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 31ST DAY OF OCTOBER 2025 / 9TH KARTHIKA, 1947
WP(C) NO. 44046 OF 2023
PETITIONER/S:
SABU CYRIAC
AGED 52 YEARS
S/O.MATHAN, ANGADIYIL VEETTIL, KIZHAKKEKARA MURI,
VADAYAR VILLAGE, VAIKOM.P.O., KOTTAYAM DISTRICT,
PIN - 686 146.
THE WORDS 'S/O.MATHAN' OCCURING IN THE ADDRESS PORTION
OF THE PETITIONER IN WP(C) 44046/2023 IS CORRECTED AS
'S/O.A.M.KURIYAKOSE' AS PER ORDER DATED 31.01.2024 IN
IA NO. 01/2024 IN WP(C) 44046/2023.
BY ADVS.
SHRI.ALEX K.JOHN
SHRI.JOJI ALEX
SHRI.ANIL G. PILLAI
SMT.SRAYAS JOSEPH
RESPONDENTS:
1 VADAYAR SERVICE CO-OPERATIVE BANK
REPRESENTED BY ITS AUTHORISED OFFICER, VADAYAR,
VAIKOM.P.O., KOTTAYAM DISTRICT,PIN - 682031.
2 PARVATHY G,
SPECIAL SALE OFFICER, VADAYAR SERVICE CO-OPERATIVE
BANK, VADAYAR, VAIKOM.P.O., KOTTAYAM DISTRICT,
PIN 686146, PIN - 682031
BY ADVS.
SHRI.SASI M.R.
SMT.DHARMYA M.S
SMT.KAVYA KRISHNAN
SHRI.S.SAJIT SANAL
SMT. ARYA VALSAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.10.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 44046 OF 2023
2
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JUDGMENT
The petitioner along with his father availed a loan of
Rs.25 lakhs from the 1st respondent Bank. Ext.R1(a) produced
along with a counter affidavit of the 1 st respondent, is a copy of the
loan application filed by the petitioner along with his father.
Ext.R1(b) is the loan sanction letter issued by the Secretary of the
1st respondent Bank. Two items of properties belonging to the
father of the petitioner were mortgaged to secure the repayment
of the loan. The title deed and other documents pertaining to the
said properties were also deposited with the 1 st respondent Bank.
A Gehan was also executed, which is on record as Ext.R1(e).
2. On default being committed, the 1st respondent
Bank initiated proceedings under Section 69 of the Kerala Co-
Operative Societies Act, 1969 and obtained Ext.P1 award
permitting the Bank to recover a sum of Rs.43,78,129/- together
with interest at the rate of 13.5% from 01.05.2023 from the
petitioner and his father. Ext.P2 is a copy of the demand notice
dated 28.11.2023 issued by the Bank to the petitioner and his
father demanding payment of the amounts adjudicated in terms
of Ext.P1 award. On receipt of Ext.P2, the petitioner approached
this Court and filed the above writ petition seeking the following
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reliefs:-
i) To set aside the Exhibit P1 which is the
arbitrator award in 794/2023 and Exhibit P2
which is the demand notice issued by the 1 st
respondent for the attachment of property
owned by the father of the petitioner who is no
more.
ii) To direct the impartial arbitrator for
considering the dispute which is having by the
petitioner herein.
3. The petitioner has made the following
averments in the writ petition:-
"It is submitted that in the initial stages
of the loan, the petitioner is paying the loan
amount very correctly. But in the effect of
Corona, the petitioner could not find out the fund
for remitting every month instalments. So it
resulted the dues to the loan amount."
"It is submitted that the 2 nd respondent
pronounced the award against petitioner and his
father on 30.05.2023. It is to be noted that the
award was passed as exparte in this case as ARC
No. 794/2023. It is also submitted that the award
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was passed at the time, the father of the
petitioner was no more. Without considering the
same, the respondent passed the award in
unusual manner. The 2nd respondent could have
been impleaded the legal heirs of the father of the
petitioner. Since that is not happened, award is
liable to be set aside."
"It is submitted that the petitioner got
the demand notice from the 1st respondent in the
name of petitioner and his father who is no more
on 28.11.2023. It is to be noted that the 1 st
respondent also did not take any care with regard
to the issuing to the demand notice to the
deceased person. The 1st respondent bank could
have been taken steps for impleading the legal
heirs of the father of the petitioner. So the said
demand notice is liable to be set aside. It is to be
noted that the said demand notice issued the
petitioner for the payment of Rs.44,93,279/-
which is the current dues as per the version of 1 st
respondent and 2nd respondent."
"It is submitted that the petitioner
came to know about the proceedings of the 2nd
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respondent with regard to the arbitration award
at the time when the petitioner got the Exhibit P2
for the attachment of the property belongs to the
father of the petitioner who is no more. So, for
submitting the same, the petitioner approached
the 2nd respondent for accepting the application
for setting aside the exparte award which is the
Exhibit P1 herein. But the 2nd respondent did not
accept the same."
4. The counter affidavit filed by the 1 st respondent
indicates that the averment in the writ petition that the petitioner
was regularly servicing the loan account is incorrect. It is clear
from the counter affidavit that after availing the loan from the
respondent Bank, the petitioner has made only two payments
totaling a sum of Rs.5.5 lakhs towards the loan account. It is also
clear from the counter affidavit and Ext. R1(i) that the petitioner
received notice of the arbitration proceedings on 13.12.2021. But
he did not enter appearance. The petitioner also did not take any
steps to inform the Bank that his father had passed away in the
year 2019. Considering the fact that the petitioner was given
notice of the arbitration proceedings and he had received the
notice of the arbitration proceedings as evident from Ext.R1(i),
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the averment of the petitioner in the writ petition that he came to
know of the award only after receiving Ext.P2 demand notice is
absolutely false. The petitioner has also suppressed the fact that
his father had executed a registered will dated 15.10.2009
bequeathing the properties which were mortgaged to the
respondent Bank absolutely to the petitioner. Thus on the death
of his father in the year 2019, the petitioner was the absolute
owner of the properties which were mortgaged to the respondent
Bank. Going by the averments in the counter affidavit filed by the
respondent Bank, the petitioner had also mutated the properties
in his name.
5. The primary contention taken in the writ
petition is that Ext.P1 award and Ext.P2 demand notice are issued
against a dead person, while in normal circumstances, would have
resulted in the arbitration proceedings being set aside. In the facts
of the present case, the fact that Ext.P1 award and Ext.P2 demand
notice were issued against a dead person does not result in the
proceedings being vitiated for the reason that the petitioner as
one of the legal heirs of his father was entitled to be on record in
the proceedings. That apart, the property which was mortgaged
and against which the Bank intends to proceed for recovery of
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amounts due to it was bequeathed to the petitioner by his late
father and therefore, any action by the Bank is not to the
prejudice of other legal heirs, if any, of the late father of the
petitioner.
In the above facts and circumstances, I am clear in my
mind that the petitioner has not made any case for interference
with the proceedings initiated by the respondent Bank. Since I
have found that the petitioner has filed this writ petition
suppressing material facts, I am constrained to dismiss this writ
petition imposing cost, which I quantify at Rs.25,000/-. The
petitioner shall pay the cost of Rs.25,000/- (Rupees twenty five
thousand only) to the Kerala State Legal Services Authority within
a period of one month from today (31.10.2025), failing which the
District Collector, Kottayam shall take steps to initiate Revenue
Recovery proceedings to recover the said sum of Rs.25,000/-
from the petitioner.
Sd/-
GOPINATH P.
JUDGE
DK
WP(C) NO. 44046 OF 2023
2025:KER:82259
APPENDIX OF WP(C) 44046/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE AWARD IN ARC
NO.794/2023 BY THE SALE OFFICER
VADAYAR SERVICE CO-OPERATIVE BANK LTD.
DATED 30.05.2023
Exhibit P2 TRUE COPY OF THE DEMAND NOTICE DATED
28.11.2023 ISSUED BY THE VADAYAR
SERVICE CO-OPERATIVE SOCIETY BANK
LTD., VAIKOM
RESPONDENT EXHIBITS
Exhibit R1(a) TRUE COPY OF THE LOAN APPLICATION
DATED 01/08/2016 BY THE PETITIONER AND
HIS FATHER.
Exhibit R1(b) TRUE COPY OF THE LOAN SANCTIONING
ORDER SIGNED BY THE SECRETARY OF THE
BANK.
Exhibit R1(c) TRUE COPY OF THE SURETY BOND DATED
27/09/2016.
Exhibit R1(d) TRUE COPY OF DECLARATION BY APPLICANT
CONTAINING DESCRIPTION OF THE
PROPERTY.
Exhibit R1(e) TRUE COPY OF THE FORM FOR CREATING A
GEHAN DATED 06/09/2016.
Exhibit R1(f) TRUE COPY OF THE TITLE DEED NO.
4491/1962 OF KADUTHURTHY SUB REGISTRY.
Exhibit R1(g) TRUE COPY OF THE LAND TAX RECEIPT NO
4049732 DATED 16/07/2016.
Exhibit R1(h) TRUE COPY OF THE LEDGER OF OL (60)
DATED 15/03/2024.
Exhibit R1(i) TRUE COPY OF THE POSTAL
ACKNOWLEDGMENT.
Exhibit R1(j) TRUE COPY OF THE WILL NO. 86 OF SUB
REGISTRY, THALAYOLAPPARMABU.
Exhibit R1(k) TRUE COPY OF THE THANDAPER ACCOUNT
ISSUED BY THE VILLAGE OFFICER, VADAYAR
ON 26/03/2023.
Exhibit R1(l) TRUE COPY OF THE CORRELATION STATEMENT
OF THE SURVEY NUMBERS IN VADAYAR
VILLAGE, VAIKOM TALUK.
