IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2972 of 2011(V)
1. MIRIYAM, AGED 74 YEARS,
... Petitioner
2. NIKHILA JOSE, AGED 24 YEARS,
Vs
1. THE MANAGER,
... Respondent
2. THE ASSISTANT REGISTRAR/ARBITRATOR
3. THE JOINT REGISTRAR OF CO-OPERATIVE
4. THE SECRETARY TO THE GOVERNMENT,
For Petitioner :SRI.NISHIN GEORGE VIJAYABABU
For Respondent : No Appearance
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :28/01/2011
O R D E R
P.N. RAVINDRAN, J.
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W.P.(C) No.2972 of 2011
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Dated this the 28th day of January, 2011
J U D G M E N T
The second petitioner herein, the grand daughter of the
first petitioner, availed a loan from the Chittarickal Branch of the
Kasargod District Co-operative Bank. The first petitioner is a
guarantor to the said transaction. The lands belonging to her have
been mortgaged as security for the loan. When the petitioners
defaulted repayment of the loan, the bank filed A.R.C.No.57 of 2007
before the Assistant Registrar of Co-operative Societies. By Ext.P1
award passed on 6.6.2007, the Arbitrator directed the petitioner to
pay the sum of Rs.1,27,716/- with future interest at the rate of 12%
per annum on the principal amount of Rs.98,330/- from 11.10.2006
onwards. The award also directed that it will be open to the bank to
recover the decree debt by sale of the security. Ext.P1 award has
become final. Even thereafter, the petitioners did not pay the amount
payable under the award. The bank thereupon took steps to execute
the award. The sale officer issued Ext.P2 demand notice dated
27.1.2010 demanding payment of the sum of Rs.1,67,648/-. The
petitioners were cautioned that if within 10 days, the said amount is
not paid, the properties described in the said notice will be attached
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and sold in public auction. Even thereafter, the petitioners did not pay
the award amount. The bank thereupon put the properties to sale,
after Ext.P3 sale notice was issued. The security for the loan
transaction was accordingly sold on 29.12.2010 by public auction. In
the auction held on 29.12.2010, one Sri.E.K.Sunil Kumar was the
successful bidder. The property was sold to him for the sum of Rs.2
lakhs. As on the date of the sale, money due from the petitioners
under Ext.P1 award was Rs.1,92,797/-. Immediately after the sale
was held, the sale officer issued Ext.P4 notice dated 29.12.2010
informing the petitioners that the property has been sold to E.K.Sunil
Kumar and that if the petitioners pay the sum of Rs.1,92,797/- and
Rs.10,000/- being 5% of the bid amount within 30 days, the sale will
stand set aside. The petitioners were further informed that if they fail
to make the payment, the sale will be confirmed. When the period of
30 days stipulated in Ext.P4 notice was about to expire, the
petitioners filed Ext.P6 representation before the Joint Registrar of Co-
operative Societies (General), Kasargod, with a copy to the Secretary
to Government, Co-operation Department, seeking various reliefs
including a prayer to set aside the sale conducted on 29.12.2010.
This writ petition was thereafter filed seeking the following reliefs:-
W.P.(C) No.2972 of 2011
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1. To issue a writ of mandamus or any other
appropriate writ to quash Ext.P2 demand notice
and direct the respondents to refrain from
proceeding with the recovery steps pursuant to
Ext.P1 award.
2. To issue a writ of mandamus or any other
appropriate writ to quash Ext.P3 proclamation
notice on the ground of illegality and fraud and
direct the respondents to refrain from proceeding
with the recovery steps pursuant to Ext.P1 award
and Ext.P2 demand notice.
3. To issue a writ of mandamus or any other
appropriate writ set aside the auction conducted
on account of illegality and to declare the
Execution petition No.22/2009, is filed o recover
exorbitant amount and to dismiss the
E.P.22/2009.
4. To issue a writ of mandamus or any other
appropriate writ and direct the 3rd respondent to
consider Ext.P6 petition of the first petitioner.
5. To grant such other reliefs as this Hon’ble Court
deems fit.
2. It is stated that unless the sale is set aside, the
petitioners will be put to serious prejudice. The petitioners also attack
the sale on various grounds including the plea that the amount for
which the property was brought to sale is in excess of the amount
payable under the award. They have also alleged other procedural
irregularities in the conduct of the sale. Rule 83(1) of the Kerala Co-
operative Societies Rules provides that at any time, within 30 days
from the date of sale of immovable property, the decree holder or any
W.P.(C) No.2972 of 2011
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person entitled to share in a rateable distribution of the assets or
whose interests are affected by the sale, may apply to the Registrar
to set aside the sale, on the ground of a material irregularity or
mistake or fraud in publishing or conducting it. The petitioners have
in Ext.P6 representation dated 22.1.2011 sought to set aside the sale
held on 29.12.2010 on various grounds. Ext.P7 letter establishes the
fact that the original of Ext.P6 was submitted before the Joint
Registrar of Co-operative Societies (General), Kasargod on 25.1.2011.
It is therefore evident that Ext.P6 representation was filed within 30
days from the date of sale, viz., 30 days from 29.12.2010. In such
circumstances, as the petitioners have invoked a statutory remedy
available to them, I am of the opinion that they should have awaited
the outcome of the said representation before rushing to this Court. I
therefore find no grounds to entertain this writ petition and to grant
reliefs 1 to 3. The only relief that can be granted in the facts and
circumstances of the case is to direct the third respondent to consider
Ext.P6 representation and pass orders thereon, after notice to and
affording the petitioners, the first respondent and the purchaser an
opportunity of being heard.
The writ petition is accordingly disposed of with a
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direction to the third respondent to consider Ext.P6 representation
and pass appropriate orders thereon, expeditiously and in any event
within three months from today, after affording the petitioners, the
first respondent and the purchaser in the auction held on 29.12.2010
an opportunity of being heard.
P.N. RAVINDRAN,
JUDGE.
nj.