Leelavathi v. Managing Director, S. C. D. C. C. Bank Ltd.
2009-04-24
S.ABDUL NAZEER
body2009
DigiLaw.ai
Judgment :- Though the reliefs sought for in these writ petitions are different, the parties to the writ petitions are common and the facts leading to the cases are also common. Therefore, they are clubbed together, heard and disposed of by this common order. 2. The petitioner in W.P.No.9997/2007 was the owner of the properly morefully described in the schedule to the writ petition (hereinafter referred to as ‘the schedule property’). He had sought financial assistance from the South Canara District Central Cooperative Bank Limited, Mangalore (for short ‘Bank’) in order to make additions to his house. The Bank sanctioned a loan of Rs.2 lakhs subject to the petitioner creating equitable mortgage of the schedule property in its favour. It is not in dispute that the petitioner created equitable mortgage of the schedule property in favour of the Bank and availed the financial assistance as above. It is the case of the petitioner that he had repaid a sum of rs.70,000/-to the Bank and failed to pay the balance of the amount. Therefore, the bank raised a dispute in No.JRM/DDS/1301/04.05, which came to be allowed on 24.11.2004 by the Joint Registrar of Cooperative Societies, Puttur Sub-Division, Puttur for a sum of Rs.1,99,234/-with interest at 19% per annum. Feeling aggrieved by the said order, the petitioner filed an appeal before the Karnataka Appellate Tribunal, Bangalore, in appeal No.608/2005. During the pendency of the appeal, the schedule property was auctioned for a sum of Rs.4 lakhs in favour of the third respondent. The third respondent deposited the said sum of Rs.4 lakhs with the Bank and the bank registered a sale certificate in favour of the third respondent. The third respondent has borne the registration fee in a sum of Rs.35,000/-. During the pendency of the writ petition, the Karnataka Appellate Tribunal dismissed the appeal on 20.8.2007. Therefore, petitioner sought amendment of the prayer in the writ petition, which was allowed by this Court. Thus, in this writ petition, the petitioner has called in question the award passed by the Joint Registrar of Cooperative Societies at Annexure ‘D’ dated 24.11.2004, the order of the appellate authority in appeal No.608/2005 (Annexure ‘K’) dated 20.8.2007 and the sale certificate dated 22.5.2007 executed by the Bank in favour of the third respondent at Annexure ‘H’. 3.
Thus, in this writ petition, the petitioner has called in question the award passed by the Joint Registrar of Cooperative Societies at Annexure ‘D’ dated 24.11.2004, the order of the appellate authority in appeal No.608/2005 (Annexure ‘K’) dated 20.8.2007 and the sale certificate dated 22.5.2007 executed by the Bank in favour of the third respondent at Annexure ‘H’. 3. In W.P.No.17933/2007, the auction purchaser of the schedule property (third respondent in W.P.No.9997/1997) has sought for a mandamus directing the respondents to deliver vacant possession of the schedule property. It is contended that the sale certificate having been executed in his favour as early as on 22.5.2007, possession has not been handed over to him so far. 4. I have heard the learned Counsel for the parties. 5. Learned Counsel for the petitioner in W.P.No.9997/1997 does not dispute the correctness of the award passed by the Joint Registrar of Cooperative Societies dated 24.11.2004 nor does he dispute the order dated 20.8.2007 passed by the Karnataka Appellate Tribunal in appeal No.608/2005. His only submission is that since the financial assistance sought for by the petitioner was for making additions to his house, interest should have been fixed at a reasonable rate. It is argued that since the petitioner had mortgaged his property in favour of the Bank, question of awarding interest at 19% from the date of the claim petition till payment of the amount in question is excessive and arbitrary in nature. In this connection, he has relied on the decision of the Apex Court in Krishna Bhagya Jala Nigam Ltd. Vs. G. Harischandra Reddy & Another – AIR 2007 SC 817 . It is further submitted that petitioner may be granted reasonable time for payment of the award amount with interest which may be fixed by this Court. 6. On the other hand, learned Counsel appearing for the respondent-Bank has sought to justify the levy of interest. 7. Learned Counsel appearing for the auction purchaser submits that the auction purchaser will be satisfied if the amount of Rs. 4 lakhc deposited by him with the Bank and registration fee of Rs.35,000/0 and other expenses be refunded to him with a reasonable rate of interest. 8.
7. Learned Counsel appearing for the auction purchaser submits that the auction purchaser will be satisfied if the amount of Rs. 4 lakhc deposited by him with the Bank and registration fee of Rs.35,000/0 and other expenses be refunded to him with a reasonable rate of interest. 8. Considering similar submission of the learned Counsel for the parties, this Court had passed an interim order on 30.10.2008 as under: “In W.P.No. 9997/2007, learned counsel for the petitioner submits that the petitioner is ready to settle the matter with the 1st respondent Bank. He prays that some concession may be shown in payment of interest. He further submits that the petitioner will approach the 1st respondent Bank in this connection on 5.11.2008. In the light of the said submission, the petitioner is permitted to negotiate with the 1st respondent-Bank with regard to payment of interest at a concessional rate. In W.P. No. 17933/2007, learned Counsel for the petitioner submits that the petitioner will be satisfied if the amount of Rs. 4,00,000/-deposited by the petitioner with the respondent Bank and the registration fee of Rs.35,000/-and other expenses is refunded to the petitioner with reasonable rate of interest. An affidavit has already been filed by the petitioner in this regard on 18.12.2007.” 9. In the light of the rival contentions of the parties, the only question to be considered in these writ petition is whether the impugned orders levying interest at the rate of 19% per annum from the date of the claim petition till the date of payment is just and proper? 10. It is not in dispute that the petitioner in W.P. No. 9997/2007 had availed loan from the Bank for making additions to his house. He had created equitable mortgage of the schedule property in favour of the Bank. The Bank has filed claim petition before the joint Registrar of Cooperative Societies under Section 70 of the Karnataka Cooperative Societies Act, 1959. The Joint Registrar of Cooperative Societies has passed an award on 24.11.2004 as per Annexure ‘D’ for Rs.1,99,234/-with interest at 19% per annum. The said order has been confirmed by the Karnataka Appellate Tribunal in appeal No. 608/2005 as per Annexure ‘K’ dated 20.8.2007. 11. The schedule property was purchased by the auction purchaser for a sum of Rs. 4 lakhs and he had deposited the said sum with the Bank.
The said order has been confirmed by the Karnataka Appellate Tribunal in appeal No. 608/2005 as per Annexure ‘K’ dated 20.8.2007. 11. The schedule property was purchased by the auction purchaser for a sum of Rs. 4 lakhs and he had deposited the said sum with the Bank. The certificate of sale has been registered in the Sub-Registrar’s office. Puttur, on 16.5.2007, a copy of which is produced at Annexure ‘B’ (in W.P. No. 17933/2007). The auction purchaser has no objection for cancellation of the sale certificate subject to the Bank refunding the said sum of Rs. 4 lakhs with reasonable rate of interest and the registration fee of Rs. 35,000/-and other expenses. The submission of the learned Counsel for the petitioner is that petitioner is willing to pay the award amount with reasonable rate of interest. He further prays for reasonable time to pay the said amount. 12. The Apex court in G. Harischandra Reddy’s case (supra) was considering award of interest by an arbitrator for pre-arbitration, pendent lite and post-award period. The Court observed that as the rate of interest has gone down after economic reforms, it is just and reasonable to award interest at 9% per annum. 13. In the present case also, the petitioner had availed financial assistance for making additions to his house. He does not dispute the loan transaction. He only pleads for reduction of rate of interest. Having regard to the facts and circumstances of the case, I am of the view that it is just and proper to award interest at the rate of 9% per annum from the date of claim petition till the date of realization. The auction purchaser is ready to take back the amount deposited by him with reasonable rate of interest. I am also of the view that petitioner should be granted reasonable time for payment of award amount to the Bank. Since the Bank had the advantage of the money deposited by the auction purchaser, it has to return the same with interest at 9% per annum from the date of deposit till the date of payment. The auction purchaser is also entitled for refund of a sum of Rs.35,000/-incurred by him towards registration of the sale certificate and an additional sum of Rs.5,000/-towards other expenses which has to be borne by the petitioner. 14.
The auction purchaser is also entitled for refund of a sum of Rs.35,000/-incurred by him towards registration of the sale certificate and an additional sum of Rs.5,000/-towards other expenses which has to be borne by the petitioner. 14. In the light of the aforesaid discussions, I pass the following: ORDER I. The award passed by the Joint Registrar of Co-operative Societies dated 24.11.2004 at Annexure ‘D’ (in W.P.No.9997/2007) confirmed by the Karnataka Appellate Tribunal in appeal No.608/2005 is hereby modified only to the extent of rate of interest. The petitioner (in W.P.No.9997/2007) is liable to pay interest at the rate of 9% per annum from the date of claim petition till the date of realization. In all other respects, the award and the order referred to above are sustained. II. The petitioner (in W.P.No.9997/2007) is further directed to deposit a sum of Rs.40,000/-within a period of eight weeks from today with the Bank and the Bank is directed to refund the same to the auction purchaser (3rd respondent in W.P.No.9997/2007). III. The Bank is directed to refund a sum of Rs.4 lakhs to the auction purchaser with interest at 9% per annum from the date of deposit till the date of payment within a period of eight weeks from today. .IV. On payment of the amount as per Clause II and III of this order, the auction purchaser is directed to execute and register a deed of cancellation of the sale certificate at Annexure ‘B’ (in W.P.No.17933/2007) and the cost of execution of the deed of cancellation of the sale certificate should also be borne by the petitioner (in w.P.No.9997/2007). .V. The petitioner (in w.P.No.9997/2007) is directed to deposit the award amount with interest as above at Rs.50,000/-per month till the entire amount is deposited with the Bank. The 1st installment shall be deposited on or before the end of May, 2009. If the petitioner in w.P.No.9997/2007 fails to deposit any of the installments as above or fails to deposit Rs.40,000/-as per Clause II of this order and fails to bear the cost of execution of deed of cancellation of sale certificate, liberty is reserved to the Bank to recover the entire outstanding amount calculated in terms of this order in accordance with law. VI. Writ petitions are disposed of accordingly. No costs.