(2012) 268 KLR 570 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN MONDAY, THE 12TH DAY OF MARCH 2012/22ND PHALGUNA 1933 WP(C).No. 22802 of 2011 (A) --------------------------- PETITIONER(S): ----------------------- KRISHNANKUTTY, AGED 59 YEARS, S/O.RAMAN, VADAKEVEETIL HOUSE, P.O.POONKUNNAM, THRISSUR-2. BY ADV. SRI.M.B.PRAJITH. RESPONDENT(S): ------------------------- 1. THE THRISSUR DISTRICT CO-OPERATIVE BANK, SAHAKARANA SHATHABDI MANDIRAM, TUDA ROAD, KOVILAKATHUMPADAM, THIRUVAMBADI. P.O., THRISSUR, PIN-682 022, REPRESENTED BY ITS GENERAL MANAGER. 2. THE ASSISTANT REGISTRAR OF CO-OPERATIVE, SOCIETIES/ARBITRATOR CUM SALES OFFICER, THE THRISSUR DISTRICT CO-OPERATIVE BANK, H.O. SHAHAKARANASATHABTHI MANDIRAM, TUDA ROAD, KOVILAKATHUMPADAM, THIRUVAMBADI. P.O., THRISSUR. PIN-680 022. 3. THE STATE OF KERALA, REPRESENTED BY IT'S SECRETARY, DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, TRIVANDRUM. PIN-695 001. 4. THE JOINT REGISTRAR, OFFICE OF THE JOINT REGISTRAR, AYYANTHOLE, THRISSUR. PIN-680 001. 5. KRISHNANKUTTY, S/O.AYYAPPAN, KADAVILPURACKAL HOUSE, KURUMBILAVU, THRISSUR. PIN-680 001. R1 BY ADV. MR.P.C. SASIDHARAN, SC. R2 TO R4 BY SR. GOVT. PLEADER MR.G. GOPAKUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:rs. WP(C).No. 22802 of 2011 (A) APPENDIX PETITIONER'S EXHIBITS:-
RESPONDENT'S EXHIBITS:-
//TRUE COPY// P.S. TO JUDGE rs. "C.R." P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.22802 of 2011 ----------------------------------------- Dated this the 12th day of March, 2012 Head Note:- Kerala Co- operative Societies Act, 1969 - Section 108 - Kerala Co-operative Societies Rules, 1969 - Rules 82, 83 and 84 - Delivery of possession - Obstruction to the property being delivered over to the purchaser by the Judgment Debtor - Whether purchaser should move the civil court? Held:- Rule 84 of the Kerala Co- operative Societies Rules does not govern cases where the judgment debtor himself obstructs delivery of the property sold in auction to the purchaser. It is therefore not necessary for the purchaser to move the competent civil court for obtaining delivery of the property even in cases where there is no obstruction from a third party. The stand taken by the Joint Registrar of Co- operative Societies in Ext.P9 cannot be sustained. I accordingly allow the writ petition, set aside Ext.P9 and direct that in the event of the petitioner filing an appropriate application before the Sale Officer (the second respondent herein) seeking delivery of possession of the property described in Ext.P3 Sale Sannad, which property was sold in public auction on 20.11.008, the Sale Officer shall take steps to deliver the property over to the petitioner within one month from the date on which an application seeking delivery of property is filed before him. Needless to say, the Sale Officer shall, before effecting delivery, give notice to the fifth respondent calling upon him to vacate the premises and if he is resisted or obstructed by the fifth respondent or his family members from delivering the property over to the petitioner herein, it will be open to the Sale Officer to seek the assistance of the Police in terms of section 108 of the Kerala Co- operative Societies Act, 1969. JUDGMENT Ext.P9 order passed by the Joint Registrar of Co-operative Societies on 6.7.2011, rejecting the application filed by the petitioner, the successful bidder in a public auction, for delivery of the property purchased by him in that auction, is under challenge in this writ petition. The brief facts of the case are as follows: 2. The fifth respondent availed a loan from the first respondent bank on 4.11.2000. He defaulted repayment of the loan. The bank thereupon instituted A.R.C.No.880/2004 before the Arbitrator. The fifth respondent did not contest the arbitration case and an award was passed. The fifth respondent did not even thereafter repay the debt. The bank thereupon took steps to execute the award and in execution of the award an item of immovable property belonging to the defaulter was brought to sale and sold in public auction on 20.11.2008. The petitioner was the successful bidder in the auction, he having purchased the property for the sum of Rs.1,30,000/-. 3. The fifth respondent challenged the sale by filing W.P.(C) No.37749 of 2008 in this Court. That writ petition was dismissed on 19.12.2008 reserving liberty with the fifth respondent to apply to have the sale set aside either under rule 82 or 83 of the Kerala Co-operative Societies Rules, 1969. The fifth respondent had in the meanwhile filed an application dated 16.12.2008 to set aside the sale before the Assistant Registrar of Co-operative Societies, who passed the award, the Joint Registrar of Co-operative Societies (General), Thrissur and also before the bank. The Joint Registrar of Co-operative Societies forwarded the application received by him, to the Assistant Registrar of Co-operative Societies, who by order passed on 20.3.2009 rejected it on the ground that it was belatedly received. The fifth respondent successfully challenged that order by filing W.P.(C)No.14987 of 2009 in this Court wherein this Court held that the Joint Registrar of Co-operative Societies ought to have himself disposed of the application to set aside the sale, instead of forwarding it to the Assistant Registrar of Co-operative Societies for disposal. This Court, after quashing the order passed by the Assistant Registrar of Co-operative Societies also gave the fifth respondent another opportunity to have the sale set aside. The operative portion of the judgment of this Court in W.P.(C)No.14987 of 2009 is extracted below:- "6. However, in order to give a quietus to the issue, particularly, taking into account the fact that the petitioner is a Cooli worker, who is chronically ill, I think that yet another opportunity should be given to the petitioner to salvage the property duly compensating the 4th respondent and also discharging the liability of the Bank. Accordingly, to give a quietus to the issue, the writ petition is ordered as follows:- That, if within four weeks from today, the petitioner refunds Rs.1,30,000/- deposited by the 4th respondent along with 9% interest thereon from 18.12.2008 till date of payment, the Bank will release the document of title deposited by the petitioner to him. It is further directed that if out of Rs.1,30,000/- deposited by the 4th respondent, any amount is in excess of the actual liability that is due from the petitioner to the Bank, such excess amount will also be refunded to the petitioner. 7. Needless to say that in any event if the petitioner does not make payment as ordered above, the respondents will take necessary action for confirming the sale in favour of the 4th respondent and issuing sale certificate." 4. The fifth respondent did not comply with the said direction. Instead he filed W.A.No.1951 of 2009. By judgment delivered on 16.9.2009, a Division Bench of this Court disposed of the writ appeal by enlarging the time for remitting the sum of Rs.1,30,000/- by three months, which expired on 16.12.2009. The fifth respondent did not even thereafter deposit the sum of Rs.1,30,000/-. The sale was therefore confirmed on 11.1.2010. 5. The fifth respondent thereafter filed an appeal before the State Government under section 83(1)(j) of the Kerala Co- operative Societies Act, 1969 and filed W.P.(C)No.7824 of 2010 in this Court seeking expeditious disposal of the appeal and a stay of all further proceedings pursuant to the order confirming the sale, pending disposal of the appeal. The said writ petition was disposed of by judgment delivered on 17.3.2010 with a direction to the State Government to dispose of the appeal filed by the fifth respondent within two months from the date of receipt of a copy of the judgment. The successful bidder, the petitioner herein, thereupon filed W.A.No.747 of 2010 wherein an interim order was passed on 23.4.2010 staying the operation of the judgment of the learned single Judge in W.P.(C)No.7824 of 2010. While W.A.No.747 of 2010 was pending, the State Government issued notice on the appeal inviting all the parties, including the petitioner herein, to appear for a hearing. The petitioner thereupon withdrew W.A.No.747 of 2010 and it was dismissed as withdrawn by judgment delivered on 5.7.2010. The Government thereafter allowed the appeal filed by the fifth respondent and passed Ext.P1 order dated 18.8.2010 setting aide the order passed by the Joint Registrar of Co-operative Societies confirming the sale. The petitioner herein challenged that order by filing W.P.(C)No.28063 of 2010 in this Court. By Ext.P2 judgment delivered on 22.3.2011, I disposed of the said writ petition with the following directions:- "6. As noticed above, the subject matter of the dispute is a residential house situated in 11 cents of land, wherein the 2nd respondent is residing. The amount fetched in the sale held on 20.11.2008 is only Rs.1,30,000/-. In the said circumstances, I am of the opinion that interests of the petitioner can be safeguarded by directing the 2nd respondent to pay over to him the sum of Rs.1,30,000/- together with interest thereon at 12% per annum with effect from 18.11.2008 till the date of payment. I accordingly dispose of the writ petition with a direction that in the event of the 2nd respondent depositing with the 3rd respondent bank for payment to the petitioner the sum of Rs.1,30,000/- together with interest thereon calculated at the rate of 12% per annum from 18.12.2008 till the date of payment, within two months from today, the sale held on 20.11.2008 shall stand set aside. Upon such deposit being made, the amount deposited shall be paid over to the petitioner within one week from the date of deposit. If the 2nd respondent fails to deposit the said amount within the time stipulated above, Ext.P4 order passed by the Government shall stand set aside and the sale held on 20.11.2008 shall stand confirmed. In both contingencies, it will be open to the 3rd respondent Bank to appropriate the sum of Rs.1,30,000/- deposited by the petitioner on 18.11.2008. It will be open to the petitioner, in the event of the sale being confirmed to take steps to obtain delivery of the property in accordance with law." 6. The fifth respondent did not deposit the sum of Rs.1,30,000/- together with interest calculated at the rate of 12% per annum from 18.11.2008 within the time limit stipulated and therefore, the direction issued by this Court that the sale held on 20.11.2008 shall stand confirmed, took effect. The second respondent bank thereupon executed and registered the original of Ext.P3 Sale Sannad dated 31.5.2011. The petitioner thereafter filed Ext.P5 application before the Joint Registrar of Co-operative Societies (General), Thrissur, to deliver possession of the property, which was the subject matter of the sale, to him. He later filed Ext.P6 representation dated 6.7.2011 before the General Manager of the first respondent bank. The General Manager of the first respondent bank thereupon submitted Ext.P8 representation before the Joint Registrar of Co-operative Societies (General), Thrissur. By Ext.P9 order dated 6.7.2011, the Joint Registrar of Co-operative Societies (General), Thrissur informed the petitioner that he is not in a position to take any step to deliver the property to him. Hence this writ petition challenging Ext.P9 and seeking the following reliefs:- i. To issue a writ of certiorari or appropriate writ calling for records leading to Ext.P9 and quash the same. ii. To issue a writ of mandamus or appropriate writ or direction directing the respondents to effect the delivery of possession of the property mentioned in Ext.P3 to the petitioner. iii. To issue a writ of mandamus or appropriate writ directing the 4th respondent to take possession of the property mentioned in Ext.P3 and deliver the same to the petitioner. The main contention raised by the petitioner is that rule 84 of the Kerala Co-operative Societies Rules, which relates to removal of obstruction by any person to the property being delivered over to the purchaser, has no application to cases where the defaulter himself resists the delivery and therefore, the Joint Registrar of Co-operative Societies ought to have delivered over the property purchased by the petitioner to him. 7. I heard Sri.M.B.Prajith, learned counsel appearing for the petitioner, Sri.P.C.Sasidharan, learned standing counsel appearing for the first respondent and the learned Government Pleader appearing for respondents 2 to 4. Though the fifth respondent defaulter has also been served, he has not entered appearance and filed a counter affidavit. It is not in dispute that the fifth respondent did not, as directed by this Court in Ext.P2 judgment, deposit the sum of Rs.1,30,000/- together with interest thereon at the rate of 12% per annum from 18.11.2008, within the time limit stipulated by this Court. The said judgment has attained finality. This Court had in Ext.P2 judgment directed that if the fifth respondent fails to deposit the amount mentioned therein within the stipulated time, Ext.P1 order passed by the Government shall stand set aside and the sale held on 20.11.2008 shall stand confirmed. This Court had also observed that in the event of the sale being confirmed, it will be open to the petitioner herein to take steps to obtain delivery of the property in accordance with law. As the fifth respondent did not deposit the sum of Rs.1,30,000/- together with interest, Ext.P1 order of the Government stood quashed and the sale held on 20.11.2008 stood confirmed. Thereupon, Ext.P3 Sale Sannad was executed and registered conveying the property to the petitioner. The property sold is 11 cents of land with a residential house wherein the fifth respondent is residing. Therefore, vacant possession of the property was not delivered over to the petitioner simultaneous with the execution of Ext.P3 Sale Sannad. He thereafter applied for delivery of the property to him. The bank had also addressed the Joint Registrar of Co-operative Societies with a request to take steps to deliver over the property to the petitioner. The Joint Registrar of Co-operative Societies declined to deliver possession of the property on the ground that he is not in a position to do anything in the matter. The stand taken by the Joint Registrar of Co-operative Societies appears to be rested on rule 84 of the Kerala Co-operative Societies Rules, which reads as follows:- "84. Delivery of possession:-- Where any lawful purchaser of immovable property is resisted and prevented by any person other than a person, (not being the defaulter) claiming in good faith to be in possession of the property on his own account, from obtaining possession of the immovable property purchased, any court of competent jurisdiction, on application and production of the certificate of sale referred to in sub rule (5) of R.83 above, shall cause the proper process to be issued for the purposes of putting such purchaser in possession in the same manner as if the immovable property purchased had been decreed to the purchaser by a decision of the court." 8. A learned single Judge of this Court considered a similar question in O.P.No.12790 of 1998 wherein the Sale Officer, who was addressed by the purchaser of the property sold in auction, declined to deliver over the property to the purchaser. The Sale Officer took the stand that in view of rule 84 of the Kerala Co- operative Societies Rules, if there is any obstruction to the property being delivered over to the purchaser, the purchaser should move the civil court. Overruling the said contention a learned single Judge of this Court held that rule 84 applies only in a case where a third party resists and prevents delivery of the immovable property sold and not in cases where the defaulter himself is in possession of the property. This Court accordingly directed that the Sale Officer should take steps to deliver over the property, if necessary with police aid to the purchaser. The relevant portion of the judgment is extracted below:- "2. I am of the view that rule 84 is inapplicable to the facts of this case as already mentioned, since no third person has raised any objection with regard to the sale of property which was confirmed in the name of the petitioner. I am of the view that since the Sale Officer has a right to conduct sale in execution of the award, he is bound to see that the auction purchaser is put in possession of the property. It is open to the Sale Officer to seek appropriate police aid to put the property in possession of the petitioner. Even though notice was issued to the second respondent, there was no appearance on behalf of the second respondent. 3. Accordingly, I am inclined to dispose of this writ petition with a direction to the first respondent to take adequate steps including police aid to see that the property is put in possession of the petitioner." 9. I am in agreement with the opinion of the learned single Judge in O.P.No.12790 of 1998 that rule 84 of the Kerala Co- operative Societies Rules does not govern cases where the judgment debtor himself obstructs delivery of the property sold in auction to the purchaser. It is therefore not necessary for the purchaser to move the competent civil court for obtaining delivery of the property even in cases where there is no obstruction from a third party. The stand taken by the Joint Registrar of Co- operative Societies in Ext.P9 cannot be sustained. I accordingly allow the writ petition, set aside Ext.P9 and direct that in the event of the petitioner filing an appropriate application before the Sale Officer (the second respondent herein) seeking delivery of possession of the property described in Ext.P3 Sale Sannad, which property was sold in public auction on 20.11.008, the Sale Officer shall take steps to deliver the property over to the petitioner within one month from the date on which an application seeking delivery of property is filed before him. Needless to say, the Sale Officer shall, before effecting delivery, give notice to the fifth respondent calling upon him to vacate the premises and if he is resisted or obstructed by the fifth respondent or his family members from delivering the property over to the petitioner herein, it will be open to the Sale Officer to seek the assistance of the Police in terms of section 108 of the Kerala Co- operative Societies Act, 1969. P.N.RAVINDRAN, Judge. ahg. |
