IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 13.08.2010 CORAM THE HONOURABLE MS.JUSTICE K.B.K. VASUKI W.P. Nos.644 & 645 of 2010 Palanivel .. Petitioner in W.P. No.644 of 2010 Ponnumayil .. Petitioner in W.P. No.645 of 2010 vs 1. The Secretary S 1565 Palace Nagar Co-operative House Building Society Limited, Palace Tower, Cherry Road, Salem-1 2. The Co-operative Sub Registrar Housing, Salem Region-II, Salem 3. The Joint Registrar, Cooperative Housing Societies, Salem Region, Salem, Salem District 4. The District Registrar, Housing Salem Region, Salem, Salem District .. Respondents Writ Petitions are filed under Article 226 of the Constitution of India for issuance of writ of Certiorarified Mandamus calling for the records relating to the undated sale notice issued by the fourth respondent in Form No.9 under Rule 126(2) of the Tamil Nadu Co-operative Societies Rules 1988 for selling the petitioner's land and house properties measuring 1.64 acres situated in Nos.301/2 & 303/2, Thesavillakku Village, No.191/4(1) and Arurpatti Village, respectively in Tharamangalam Sub District, Omalur Talum, Salem District in public auction and to quash the same and to forbear the respondents from selling the petitioner's said land and house properties besides directing the respondents to reschedule the repayment of the loan amount due by the petitioner to the first respondent. For Petitioner : Mr. P. Mani For Respondents : Mr. G. Puniyakotti for R1 (No appearance) Mr. V. Viswanathan, AGP for R2 to R4 ORDER
On consent, the writ petition is taken up for final hearing.
2. The writ petitions are filed by the petitioners to quash the undated sale notice issued by the fourth respondent in Form No.9 under Rule 126(2) of the Tamil Nadu Co-operative Societies Rules 1988 for selling the petitioner’s land and house properties measuring 1.64 acres situated in Nos.301/2 & 303/2, Thesavillakku Village, No.191/4(1), Arurpatti Village, respectively Tharamangalam Sub District, Omalur Talum, Salem District in public auction and to quash the same and to forbear the respondents from selling the petitioner’s said land and house properties besides directing the respondents to reschedule the repayment of the loan amount due by the petitioner to the first respondent.
3. As both the writ petitions are against the same respondents against identical sale notice for identical relief based on identical set of facts involving identical issues both are disposed of by common order.
4. The petitioners in both the writ petitions obtained housing loan to the tune of Rs.3,00,000/- from the first respondent/Society for the construction of their house in the patta land belonging to them and more described in the writ petitions and the loan amount was agreed to be paid in equal monthly instalments for a period of 15 years upto 2015-16. But the petitioners have admittedly committed default in not making monthly instalments regularly and are due to pay huge sum to the tune of few lakhs. As a result, the first respondent initiated proceedings against the petitioners and obtained exparte money decree and has also filed execution proceeding for the recovery of the amount due under the award. In pursuance of the order made in E.P., the house property for the construction of which the loan is sanctioned, was brought for sale in public auction. In pursuance of which the sale notices which are impugned herein are issued to the petitioners. At that stage, the petitioners have approached this Court by way of the present writ petitions for the reliefs as stated supra. The petitioners have herein raised various legal and factual grounds against the validity and enforceability of the impugned notices.
5. Whereas the learned Additional Government Pleader would try to justify the action taken on the part of the first respondent for selling the property mainly by pointing out the chronic default of payment committed by the petitioners and the huge amount due to the first respondent.
6. Heard the rival submissions made on both sides.
7. The learned counsel for the petitioners would strenously appeal to this Court that the petitioners were agricultural coolies and they were initially able to pay the loan amount regularly and their failure to make regular payment is neither wilful nor wanton, but only due to want of any work and their inability to earn money and the sickness of the petitioners. It is further contended on behalf of the petitioners that they have no other source of income and they were able to complete their house property out of the loan with such difficulty and the same is the only property available to them for their dwelling purpose and in the event of the same being brought for sale the petitioners will be put to much hardship.
8. The learned counsel for the petitioners would also appeal to this Court that the petitioners are willing to discharge their liability but within further time given to them and may be permitted to approach the first respondent with proposal to reschedule the repayment of the loan amount and the first respondent may be directed to duly consider the same in the light of the poorer condition of the petitioners and till such time the sale proceedings can be kept in abeyance.
9. The learned counsel for the petitioner would further definitely say that the properties are not yet brought for sale and though the sale publication was effected in pursuance of sale notices, no sale was held and there was no further progress in this regard and the same state of affairs continued till date. That being the factual position this Court is considering the nature of avocation being carried on by the petitioners, the purpose for which the loan is sanctioned, the reasons stated in the affidavit filed in support of the writ petitions for their failure to make the monthly instalments regularly and the proposal placed before this Court inclined to show some indulgence by directing them to pay portion of the amount due to the first respondent, however with further liberty given to them to approach the respondents for revising the re-payment schedule and in order to enable the petitioners and the first respondent to arrive at a settlement in this regard to keep the sale proceeding in abeyance, however with liberty given to the respondents to proceed further as per law in the event of the petitioners committed any default in repayment of the amounts are agreed herein.
10. In the result, the impugned sale notices are set aside on condition that the petitioners in both the writ petitions shall pay the sum of Rs.2,50,000/- each to the first respondent towards partial discharge of the housing loan amount within three weeks from the date of receipt of a copy of this order. In the event of such payment, the petitioners are given the liberty to approach the first respondent with the proposal for revising the re-payment schedule within two weeks from the date of such payment and with further direction issued to the first respondent to duly consider the proposal and dispose of the same after giving due opportunity to the petitioners for being heard within two weeks thereafter. In the event of the petitioners, failure to comply with the condition to pay Rs.2,50,000/- each within the time specified herein or in the event of their failure to comply with the re-payment schedule as and when revised, the first respondent is given liberty to proceed with the sale proceedings as per law.
11. With this observation the writ petitions are disposed of. No costs. Consequently, connected M.Ps. are closed.
13.08.2010
Index : Yes/No
Internet : Yes/No
vga
To
1. The Secretary
S 1565 Palace Nagar Co-operative
House Building Society Limited,
Palace Tower, Cherry Road,
Salem-1
2. The Co-operative Sub Registrar Housing,
Salem Region-II, Salem
3. The Joint Registrar,
Cooperative Housing Societies,
Salem Region, Salem, Salem District
4. The District Registrar,
Housing Salem Region,
Salem, Salem District
K.B.K. VASUKI,J.
vga
W.P. Nos.644 & 645 of 2010
13.08.2010