THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR W.P.No.23051 of 2003 and W.V.M.P Nos. 28496 and 2230 of 2003 A.L.Gangadharan .. Petitioner vs.
1. The Co-operative Appellate Tribunal (the District Judge) Udhagamandalam, The Nilgiris District.
2. The Deputy Registrar of Co-operative Societies, Udhagamandalam.
The Nilgiris District.
3. The Nilgiris District Central Co-op. Bank Ltd., Rep. by its Managing Director, Udhagamandalam.
4. M.I.Shamsudeen
5. K.Subaidha .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, calling for the records relating to the Judgment & Decree dated 12.03.2003 made in C.M.A. No.2 of 2002 on the file of the first respondent and the Award dated 04.08.2000 made in A.R.C.No.1/99-2000 on the file of the 2nd respondent and to quash the same.
For Petitioner : Ms.D.Kamatchi For Respondents : Tribunal for R1 Mr.V.Selvaraj, Addl. Govt. Pleader for R2 Mr.L.P.Shanmuga sundaram Spl. Govt. Pleader for R3 ORDER This writ petition has been filed seeking to set aside the Judgment & Decree dated 12.03.2003 made in C.M.A. No.2 of 2002 by the first respondent and the Award dated 04.08.2000 made in A.R.C.No.1/99-2000 on the file of the 2nd respondent.
2. The brief facts of the case is as follows :
The petitioner is an agriculturist and owner of the subject properties. The 4th respondent has approached the 3rd respondent Bank for a term loan to establish a small scale industry for manufacture of steel furniture. As a security for the said loan, the 3rd respondent has obtained a personal security bond from the wife of the 4th respondent, who is 5th respondent herein. At that time, the petitioner has signed the surety bond as a security for the loan of the 4th respondent. Thereafter, proceedings were initiated under Section 90 of the Tamil Nadu Cooperative Societies Act, 1983, for recovery of the said amount in A.R.C. No.1/99-2000. Simultaneously, criminal proceedings were initiated against the petitioner and others. Hence, the petitioner filed an appeal in C.M.A. No. 2/2002 but the same was dismissed. According to the petitioner, he was unable to contest properly before the 2nd respondent. Challenging the judgement and decree passed by the Tribunal, the petitioner filed W.P. No. 9913 of 2001 before this Court, on the ground that no proper opportunity was granted to the petitioner to put forth his case to the 2nd respondent. By order dated 12.07.2001, this Court allowed the petition and directed the 1st respondent therein, to dispose of the case after giving reasonable opportunity to the petitioner.
3. The learned counsel for the petitioner submitted that the petitioner had admitted before the Tribunal that he has signed the surety bond as a security for the 4th respondent and that the award has been passed against the petitioner since the petitioner has mortgaged his land as security in favour of the 3rd respondent. However, without considering the fact that the petitioner is only a security for the loan obtained by the 4th respondent, the Tribunal has erroneously held that the petitioner has to repay the loan borrowed by the 4th respondent and dismissed the appeal. Therefore, the judgment and decree passed by the Tribunal, is liable to be set aside.
4. The 3rd respondent has filed the counter affidavit. Based on the counter affidavit, the learned Special Government Pleader submitted that a criminal case has been preferred against the petitioner and others, in C.C. No.198/2000. In the criminal case, the petitioner had admitted that he stood as a surety to the 4th respondent, to obtain a loan of Rs.7,12,000/-, by mortgaging his property. He further submitted that the said fact has been categorically established in the criminal case, in paragraphs 22 and 23 of the judgment dated 31.12.2008, passed by the learned Judicial Magistrate Court No.IV, Coimbatore. The learned Special Government Pleader further submitted that even before the aforesaid order was passed, the petitioner has remitted part of the loan amount. During execution proceedings, the petitioner made the following remittances:
1. 11.11.1998 .. Rs.10,553.00
2. 27.11.1998 .. Rs.10,000.00
3. 28.10.1998 .. Rs.50,000.00
4. 07.02.2000 .. Rs.43,745.00 Thus, the petitioner paid a total sum of Rs.1,14,298/-. Subsequently, the Government announced interest reduction scheme, in respect of non- farm sector loans. Notices were issued to the petitioner as well as to the borrower, for availing such schemes. As per the interest reduction scheme, for the outstanding amount of Rs.26,77,073/-, after deducting an interest of Rs.14,41,081/-, the petitioner is liable to pay Rs.12,35,992/-, in instalments. The petitioner having admitted his liability in his letter dated 21.01.2011, agreed to remit 25% of the outstanding amount before 25.02.2011 and the balance in 3 instalments. After admitting the liability of the said outstanding loan amount, the petitioner cannot deny his contention. Thereafter, the petitioner issued a cheque for Rs.10,00,000/- but the same was returned as “insufficient funds”. The petitioner has not honoured his promise and paid the amount to the bank, inspite of the concession given to the petitioner. Therefore, no interference is required in the judgement of the Tribunal.
5. Heard the rival submissions and perused the material available on records.
6. It is an admitted fact that an award has been passed against the petitioner, directing him to pay a sum of Rs.7,85,957/- with an interest of 19.5%, until the date of realisation. In the criminal case registered in C.C. No. 198/2000, against the petitioner and others, it has been held as follows in paragraphs 22 and 23 :
“22. mJFwpjJ ghprPypf;Fk;nghJ ,e;j vjphpiag; bghUjj tiu ,th; ,e;j tHff pny ePyfphp khtl;l kj;jpa TlL wt[ t'f papypUeJ 1tJ vjphp jdJ bgahpny bgw;Wf;bfhzl fld;
bjhif U:/7.12.000-?j;jpwfhf. 1tJ vjphpf;F jdJ brhjJ Mtz'f s; t'f ptrk;
<Litj;Js;s $hkPdjhuh; Mthh;/ muR jug;g[ tHf;fpd;go rpWbjhHpy; Jt'F tjwF vd ,e;j flid ntz;oa[ss 1tJ vjphpahd rk;RjPd;.
jd;Dila bjhHpwr hiyfF jsthl ,ae;jpu';fis tH'Ftjw;bfd 3tJ vjphpahd Rg;gpukzpak; vd;gtiu xg;gf;bfhss bra;J.
jd;Dila flDfF $hkPd;jhuuhf ,e;j tHffpd vjphpia Vw;ghL bra;J. KtUk; ,ize;J Tl;Lr;rjp bra;J. t'f papypUeJ nehpilahf 3tJ vjphp trk; tH'fg;gl;l fld; bjhifapid.
RpWbjhHpy; Jt'fhknyna 3tJ vjphpaplkpUeJ jpUk;g bgw;W 1 kw;Wk; 2 vjphpfs; j'fSf;Fs;s g';F gphpj;Jf; bfhzljhf Twg;gLfpwJ/ 23. muR jug;gpny ,jid epU:gpf;Fk tpjkhf tprhhpffg;gl;l rhlr pa'f s; kw;Wk;
rhd;whtz';fs; Mfpatw;wpd; mog;gilapy;. Vjphp jug;g[ rhd;wthz'f spd;goa[k; ghhf ;Fk; nghJ v/j/rh/M/1d; go 1tJ vjphpahd rk;RjPd 27/09/1998y; 3tJ vjphp rk;kh; ,zl!l;hpapypeJ jd;Dila bjhHpYfF ,ae;jpu'f is Fiwej tpiyf;F juf;nfhhp fojk; mDg;gp ,Uf;fpwhh;/ mjd; bjhlhrrpahd ,e;j vjphpf;F mDkjpf;fg;gl;l fld; bjhifahd. ePyfphp khtl;l kj;jpa TlL wt[ t'f pahy; rg;kh ,z;l!;oh!; epWtdj;jpw;F nehpilahf o/o/ K:yk tH';fg;gl;Ls;sJ/ mjd;gpwF 3/10/1998y;
,ae;jpu';fis th'f tpUg;gk; ,yi y vd bjhptpj;J 1tJ vjphp 3tJ vjphpaplkpUeJ fld bjhif KGtija[k; jpUk;g bgw;Wf; bfhz;oUf;fpwhh;/ mjid v/j/rh/M/2 thapyhf fhz KofpwJ/ 1tJ vjphp bgw;w fld;
bjhiff;F jhdj hd; $hkd ;jhuh; vd;gij ,ej;
vjphp kWf;ftpy;iy/ mjw;F <lhf jd;Dila brhj;jpid t'fpapny mlkhdk itj;Js;sjhftk ; ,ej vjphp kWf;ftpyiy/ nkw;go flDfF jhdj hd; bghWg;g[ vd;w r';fjpapida[k; kWff tpyi y/ ,ee piyapy;
,e;j tHf;fpny vjphp jug;ghny jhffy bra;ag;gl;Ls;ss v/j/rh/M/2d; go ghhfFk;nghJ.
t';fpaplkpUe;J bgw;w U:/7.12.000-?bjhifapid jyh U:/3.56.000-? tj k; ,ej vjphpfs; ,UtUk;
brYj;jptpLtjhf xg;gf;bfhz;L vGjpf;
bfhLj;Js;sjhft[k; ,jdK:yk; ,UtUk; Tllhf nkhro bra;J t'f papypUeJ tpahghuj;jpw;F bgw;w fld; bjhifia j'fSf;Fs;shf g'fpl;L bfhz;L t';fpia Vkhw;wpa[ssjhf bjhptpj;J ePyfphp khtll kj;jpa TlL wt[ t'f papd;
nkyhz;ik ,af;Fdh; fhtyJ iwapdhplk; gf hh;
tH';fpapUf;fpd;whh;/ mjd;go ghhf;Fk;nghJ ,UtUk; nrh;eJ Tll hf nkhro bra;j bjhifapid j'f SfF s; g'fpl;Lf; bfhzl jhf muR jug;g[ Twtij fhz KofpwJ/ From the above judgement, it is clear that the petitioner has undertaken the responsibility and paid the aforesaid amount. It is also recorded that his properties have been mortgaged to the Bank for the said loan. The said fact is disputed by the writ petitioner, in the present writ petition. The petitioner has also admitted his liability and agreed to settle the outstanding due amount under the interest reduction scheme announced by the Government and a cheque for a sum of Rs.10,00,000/- has been given by the petitioner, to the 3rd respondent Bank. Therefore, the petitioner has accepted the liability and in the light of the order passed by the criminal court in C.C. No. 98 of 2000, it is made clear that the said properties have been mortgaged for the loan obtained by the 4th respondent. Hence, there is no force in the contention, since the petitioner himself has admitted before the courts as well as the authorities. Therefore, there is no illegality or infirmity in the judgment passed by the Tribunal and so this Court is not inclined to interfere with the judgement passed by the Tribunal.
7. At this stage, the learned counsel for the petitioner requested that an opportunity may be granted to the petitioner to avail the interest reduction scheme announced by the Government on 21.01.2011 since the petitioner is unable to settle the outstanding amount due to financial constrain. Considering the above prayer of the petitioner, liberty is granted to the petitioner to make a representation to the 3rd respondent, to settle the outstanding due amount under the interest reduction scheme, announced on 21.01.2011. On receipt of such representation, the 3rd respondent is directed to consider the same and pass orders as early as possible, considering this as a peculiar case.
8. The writ petition fails and the same is dismissed.
Consequently, the connected Miscellaneous Petitions are closed. No order as to costs.
14.09.2017
avr Index:Yes/No To
1. The Co-operative Appellate Tribunal (the District Judge) Udhagamandalam, The Nilgiris District.
2. The Deputy Registrar of Co-operative Societies, Udhagamandalam.
The Nilgiris District.
3. The Nilgiris District Central Co-op. Bank Ltd., Rep. by its Managing Director, Udhagamandalam.
D.KRISHNAKUMAR.J., avr W.P.No.23051 of 2003 and W.V.M.P Nos. 28496 and 2230 of 2003 14.09.2017