IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 6168 of 2005(H)
1. M.M.ANTHRU,
... Petitioner
2. PATHUMMA ANTHRU, W/O. M.M.ANTHRU,
Vs
1. THE SECRETARY TO GOVERNMENT,
... Respondent
2. DEPUTY TAHSILDAR (REVENUE RECOVERY),
3. THE BRANCH MANAGER,
For Petitioner :SRI.P.K.ABOOBACKER(EDAPPALLY)
For Respondent :SRI.A.S.P.KURUP, SC, UBI
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :18/06/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) 6168 of 2005
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Dated: JUNE 18, 2008
JUDGMENT
The challenge is against Ext.P5, an order passed by the 1st
respondent rejecting a representation made by the petitioner
against the recovery proceedings that were initiated at the
instance of the 3rd respondent bank.
2. The facts of the case are that: In 1988 petitioners’ son
had availed of an agricultural loan of Rs.25000/- from the 3rd
respondent bank. The petitioners were the sureties and their
property was also mortgaged. Default was committed and by
1998 recovery proceedings were initiated for realising
Rs.95428/- with interest thereon. That was challenged before
this court in OP No.10671/1999 resulting in judgment dated
23.4.1999. By that judgment this court directed the 1st
respondent to consider the representation made by the
petitioners which was produced as Ex.P6. It was also directed
that recovery proceedings will remain stayed on condition that
the petitioners remit Rs.20000/-. It is stated that this amount
was remitted and the petitioners enjoyed the benefit of the stay.
W.P.(C) 6168 of 2005
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3. Pursuant to the aforesaid judgment, 1st respondent
issued Ext.P2 notice in August 2004 scheduling the hearing to
25.8.2004. Though notice was served, the petitioners asked for
time and thereupon the hearing was postponed. It is stated
that thereafter by Ext.P3 notice, issued on 30.10.2004, the
hearing was scheduled to 5.11.2004. Petitioners stated that on
receipt of the notice they forwarded a statement and a request
for adjournment. It is stated that Ext.P4 is the cover in which
the aforesaid statement and request were forwarded under
registered post to the officer who issued Ext.P3. It is submitted
that Ext.P4 cover was returned with the endorsement “addressee
not known”. It is stated that the hearing was held as scheduled
in Ext.P3 and that resulted in Ext.P5 order. In this writ petition
the main complaint that is now raised is that it was without
opportunity of hearing as directed in the judgment dated
23.4.1999, their representation was decided by the 1st
respondent and therefore Ext.P5 is illegal.
4. The bank has filed a counter affidavit resisting the
claims of the petitioners. According to the bank, it has been the
habit of the petitioners and their son to avail of loans in the
W.P.(C) 6168 of 2005
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name of different persons and commit default. It is also stated
that other recovery proceedings are also pending against them.
5. Yet another point that is urged against the petitioner is
that while passing the order on 22.2.2005 in this writ petition,
though this court had imposed a condition for remittance of
Rs.25000/-, even that has not been complied with by the
petitioners. The Bank submits that the amount due from the
petitioners as at present is more than Rs.1.5 lakh. It is stated
that the only intention of the petitioners is to avoid the payment
and therefore this petition is ill-motivated.
6. It appears to be true that Ext.P4 cover was returned
without serving the same on the addressee. But then, with the
address shown in Ext.P4, even if it was not served, there is
nothing surprising in the action of the postal authorities.
7. Going by the endorsements on Ext.P4, the cover would
have come back to the petitioners before the date of hearing, but
the fact remains that the petitioners did not do anything further
thereafter. Therefore, for the only reason that Ext.P4
statement and request for adjournment were returned, I am not
inclined to set aside Ext.P5 at this distance of time This is all the
W.P.(C) 6168 of 2005
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more so, for the reason that the liability cannot be disputed by
the petitioners whose son had availed of the loan and that too
with the petitioners themselves as sureties and mortgaging
immovable properties.
8. I asked the learned counsel for the petitioners to argue
on the merits of the contentions that were raised in the
representation which is directed to be decided by the
Government and the answer was that they wanted to get more
time for effecting payment. Since the loan was availed of in
1988, and as more than 20 years have elapsed, there is no bona
fides in the request for more time now made by the counsel for
the petitioners.
Therefore, there is nothing on the merits of the claim raised
by the petitioners either. In view of this the writ petition is only
to be dismissed and I do so.
ANTONY DOMINIC
JUDGE
mt/-