J. Rajeshwari vs State Government Of Tamil Nadu & Others

Abdul Quddhose, J

The instant writ petition has been filed challenging the order dated 26.08.2009, passed by the third respondent, rejecting the claim of the petitioner seeking refund of the excess money collected by the third respondent by not following the G.O.(D)No. 245 dated 02.12.2003, One Time Settlement Scheme for chronic Non-Performing Assets as on 31.03.2000.

It is the case of the petitioner that she borrowed a term loan of Rs.7,68,500/- at 18% p.a. to be repaid in 60 monthly instalments from the third respondent Cooperative Bank. As security for the said loan, the petitioner's husband gave his landed properties measuring 93 cents in Survey No.257/2 in Puthupalayam Village, Rajapalayam and also residential house bearing Door No.159-A, Ward No.21.

According to the petitioner, their business suffered huge loss, which resulted in default in the repayment of the loan to the third respondent. According to the petitioner, even though the loan availed was only Rs.7,68,500/- she has repaid a total sum of Rs.17,15,154/- to the third respondent, though belatedly. According to the petitioner, the interest charged by the Cooperative Bank like that of the third respondent, is exorbitant, which is one of the reasons for the petitioner's default in the repayment of the loan.

The first respondent, in order to alleviate the difficulties faced by the borrowers and also to reduce the number of Non-Performing Assets in the Cooperatives, issued various Government Orders, providing schemes of one time settlement, reduction of interest rate, setting off penal interest and other charges and prohibition of compoundable interest.

According to the petitioner, the first respondent issued G.O.(D)No.245 dated 02.12.2003, directing the second respondent to implement One Time Settlement Scheme for chronic Non-Performing Assets, as on 31.03.2000; vide G.O.(D)No.239 dated 18.06.2004 and G.O.(D)No.403 dated 29.12.2004, extended the time period granted to the borrowers up to 31.10.2004 and 31.03.2005, respectively.

According to the petitioner, the first respondent issued G.O.(3D)No.10 dated 13.04.2005, directing the Urban Cooperatives to redraft the One Time Settlement Scheme amount in accordance with the terms of the Government Order and seek recovery of the said amount through legal process. The G.O. Stipulates that all loans should be levied interest only at 12% p.a. from 01.04.2001 and interest should be levied only on the principal amount after 01.04.2001. Legal expenses and other charges incurred after 01.04.2001 should be discounted from the loan account. It is further stated that the G.O. is applicable to all the loans prevailing as on that date, irrespective of its classification of NPA, Loss of Assets and over due, if the loan is granted before 01.04.2001.

According to the petitioner, in her case, the loan was granted in 1998-1999 and her loan account was classified as NPA in 2000 and the loan account was pending as on the date of G.O., ie., 13.04.2005. Therefore, according to the petitioner, she is entitled to the benefits of the said G.O. According to her, she made various representations to the respondents and other authorities, calling upon them to extend benefits of the G.Os passed by the first respondent. According to the petitioner, the letter dated 25.08.2004, fixed the OTS amount at Rs.5,37,102/- as on 21.07.2004 and the petitioner was directed to make an initial payment of Rs.1,09,629/-, on or before 31.10.2004. According to her, she replied to the respondents on 06.10.2004 and also issued a legal notice on 14.09.2004, expressing her willingness to pay the entire amount fixed in OTS but sought for particulars regarding calculation of the said amount.

According to the petitioner, the third respondent declined to consider her request. Therefore, she filed a writ petition in W.P.[MD]No.750 of 2005, before this Court praying for a Writ of Mandamus, to direct the respondents to receive the sum of Rs.5,37,102/- with 12% interest from 21.07.2004, within the time to be fixed by this Court subject to the return of documents given as mortgage security for the loan availed by the petitioner from the third respondent. The petitioner also filed a Writ Miscellaneous Petition in W.M.P.[MD]No.3478 of 2005, seeking to direct the third respondent to return to the petitioner the original title deeds pertaining to the properties bearing Door No.339, P.A.C.R. Salai, Rajapalayam - 626 117, Virudhunagar District, on payment of Rs.5,85,432/- by the petitioner to the respondent, pending disposal of W.P.[MD]No.750 of 2005.

According to the petitioner, this Court by its order dated 19.04.2005, directed the third respondent to release the original title deeds pertaining to the aforesaid property forthwith on the petitioner paying the said amount within a period of 15 days from the date of receipt of a copy of the said order and failure to pay will result in the dismissal of the said writ petition.

Thereafter, the petitioner filed another writ petition in W.P.[MD]No.13090 of 2004, seeking for a Mandamus;

i) to direct the second respondent through the first respondent to convene the General Body Meeting to the third respondent cooperative bank on the basis of representation dated 03.03.2004, within a time frame to be fixed by this Court in accordance with the provisions contained in Section 32 of the Tamil Nadu Cooperative Societies Act, 1983, for considering the subject of settlement of the loan dues of the members / borrowers of the said Bank in its beneficial strength in accordance with the Reserve Bank of India guidelines for One Time Settlement of dues payable to the third respondent cooperative bank.

b) to issue an order of injunction restraining the second respondent from taking recovery action for the dues of the petitioner as member or as surety to another member pending final decision to be taken by the third respondent Bank for considering the One Time Settlement Scheme.

W.M.P.[MD]No.15282 of 2004 filed in the above writ petition was dismissed on 04.01.2005. According to the petitioner, the main writ petition is still pending. Thereafter, this Court by its order dated 10.06.2009 in W.P.[MD]No.750 of 2005 directed the third respondent to adjudicate all the aspects, after affording adequate opportunity to the petitioner. According to the petitioner, despite several representations and various claims, the third respondent by the impugned order dated 26.08.2009, had rejected her request for refund of money as per G.O.(3D)No.10 dated 13.04.2005, issued by the first respondent. In the above circumstances, the Writ Petition has been filed.

A counter affidavit has been filed by the second respondent as well as the third respondent. According to the second respondent, G.O.(3D)No.10 of 2011 dated 13.04.2005, is not applicable to the loan account of the petitioner since she has already opted to avail the concession awarded by the third respondent bank and has also approached this Court on various occasions by filing writ petitions. According to the second respondent, the petitioner having availed the concession laid down in G.O.(D)No.245, and also having approached this Court by filing writ petitions, is estopped from going back and attempting to avail the concession under G.O.(3D)No.10 dated 13.04.2005. According to the second respondent, at the time of implementation of G.O. (3D)No.10, the petitioner's account was not in existence. According to the second respondent, the publication of G.O. will come into effect only from the date when it appears in the official Gazette, i.e., the date of publication of the said G.O.

Further, it is their case that the petitioner having subjected herself to the jurisdiction of this Court and this Court having passed final orders and the same having been acted upon by the petitioner as well as the third respondent, the writ petition in the form of appeal is not maintainable. According to the second respondent, the petitioner cannot avail the benefits under the G.O. (3D)No.10 and cannot claim the differential amount of Rs.2,73,443/- in this Writ Petition. It is also their case that the petitioner's claim is barred by the law of limitation under Article 126 of the Limitation Act. It is also their case that instead of filing a civil suit being a civil remedy, the petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. According to the second respondent, there is no exorbitant levy of interest by the third respondent bank.

A counter affidavit has also been filed by the third respondent, reiterating the averments contained in the counter affidavit filed by the second respondent. According to the third respondent, the claim for one time settlement was extended up to 31.03.2005. But the petitioner, instead of paying the One Time Settlement amount as per the claim, chose to file writ petitions before this Court and has also complied with the conditional order passed by this Court by depositing a sum of Rs.8,34,549/-, within 15 days from the date of receipt of the copy of the order dated 19.04.2005.

It is their case that the amounts paid by the petitioner towards repayment of the loan amount is paid beyond the stipulated time as per the G.Os. It is also their case that the title deeds obtained from the petitioner by the third respondent while granting the loan amount was returned back to the petitioner, pursuant to the orders passed by this Court in another writ petition namely W.P.[MD]No.750 of 2005. But, the said fact has been suppressed in this Writ Petition.

According to the third respondent, G.O.(3D)No.10 dated 13.05.2010 is not applicable to the account of the petitioner since she had already opted to avail the concession awarded by the bank and also approached this Court on various occasions. According to the third respondent, the petitioner is estopped from going back and attempting to avail G.O.(3D)No.10 dated 13.04.2005, since at the time of G.O.(3D)No.10, the petitioner's account was not in existence. The publication of G.O. will come into effect only from the date when it appears in the official Gazette ie., date of publication of the said G.O. The third respondent has also reiterated the contents of the second respondent that having subjected herself to the jurisdiction of this Court and having got the benefit of the orders passed by this Court, the petitioner's present Writ Petition in the form of appeal is not maintainable.

According to the third respondent, the petitioner is projecting the figure of repayment amount as a huge sum, which she is liable to pay since she suffered a decree dated 26.08.2002. Further, according to the third respondent, the claim made by the petitioner is barred by the law of limitation under Article 126 of the Limitation Act. According to them, the petitioner has resorted to filing this writ petition as her remedy for filing a civil suit has become time barred. Therefore, for the foregoing reasons, the third respondent is not liable to pay the sum of Rs.2,73,443/- to the petitioner and only in such circumstances, the application filed by the petitioner seeking refund was rejected by the third respondent under the impugned order.

Heard Mr.N.Dilip Kumar, learned Counsel for the petitioner, Mr.D.Muruganantham, learned Additional Government Pleader for the first and second respondents and Mr.S.Ramesh, learned Counsel for the third respondent.

Admittedly, in the instant case, the claim for refund made by the petitioner is disputed by the respondents. The respondents have disputed the applicability of G.O.(3D)No.10 to the petitioner, since she never exercised that option available under the said G.O., but instead approached this Court by filing various writ petitions. She has also availed the benefit of the orders passed by the writ petitions filed by her and the amount has also been paid to the third respondent in terms of the said orders accordingly. It is also the case of the respondents that at the time of G.O.(3D)No.10, the petitioner's account was not in existence as the publication of the G.O. came into effect only from the date when it appeared in the official Gazette ie., the date of publication of the said G.O.

This Court finds force in the submissions made by the learned Counsel for the respondents that the petitioner having subjected herself to the jurisdiction of this Court, by filing writ petitions without opting for G.O.(3D)No.10, is now estopped from seeking concession as per the One Time Settlement Scheme. Further, the respondents are also claiming that the claim for refund made by the petitioner is barred by the law of limitation under Article 126 of the Limitation Act.

Even according to the petitioner, the last part payment towards the repayment of the loan to the third respondent was made on 27.04.2005, for a sum of Rs.8,44,554/-. G.O.(3D)No.10 dated 13.04.2005 came into existence only thereafter. But instead of approaching the respondents seeking benefit under G.O.(3D)No. 10 dated 13.04.2005, the petitioner without reference to the said G.O., has approached this Court by filing writ petitions namely W.P. [MD]No.750 of 2005 and W.P.[MD]No.13090 of 2004 and has also obtained return of the title deeds of the properties given as security for the mortgage, pursuant to the orders passed by this Court. Eventhough, the part payment was made on 27.04.2005, the application seeking for refund of the excess amount was submitted by the petitioner to the third respondent only on 25.08.2009. There is force in the submissions made by the learned Counsel for the respondents that the claim of the petitioner is barred by the law of limitation under Article 126 of the Limitation Act.

As seen from the above discussions, there are disputed questions of fact which cannot be decided by this Court under Article 226 of the Constitution of India. It is settled law that the subject remedy provided under Article 226 is not intended to supersede completely the remedy of obtaining relief by an action in a civil Court. The power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue Writs in the nature of mandamus. Further, when there is an unreasonable delay, this Court cannot lend its hand to a party by this extraordinary remedy of mandamus. Even if there is no delay, if the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on merits and on the ground of limitation, the Courts should refuse to issue the Writ of Mandamus for refund of money. In cases where there are disputed questions of fact and triable issues are involved, it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil Court and to refuse the exercise of the extraordinary remedy under Article 226 of the Constitution of India. The instant case squarely falls within the above said proposition.

In the result, there is no merit in this Writ Petition.

Accordingly, the Writ Petition is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.