Kerala High Court
The Mattancherry Sc/St Co-Operative ... vs A.P.Thomas @ Tomy Peter on 12 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 12TH DAY OF JANUARY 2022 / 22ND POUSHA,
1943
OP(C) NO. 160 OF 2020
AGAINST THE PROCEEDINGS E.P.NO.36/2018 IN ARC 2020/2018
OF PRINCIPAL SUB COURT/COMMERCIAL COURT, ERNAKULAM
PETITIONERS:
1 THE MATTANCHERRY SC/ST CO-OPERATIVE SOCIETY LTD
NO. R131, PANDIKUDY, MATTANCHERRY,
KOCHI-682 002, REPRESENTED BY ITS SECRETARY.
2 THE SECRETARY,
THE MATTANCHERRY SC/ST CO-OPERATIVE LTD. NO.R
131, PANDIKUDY, MATTANCHERY, KOCHI-682 002.
BY ADVS.
M.M.MONAYE
SRI.DESI MATTHAI
SMT.BINCY JOSE
RESPONDENT:
A.P.THOMAS @ TOMY PETER, AGED 67 YEARS,
S/O. PETER, ANTHIKKAD, PETERIS BUILDING,
KADAVANTHARA, KOCHI-682 020, ELAMKULAM VILLAGE,
KANAYANNUR TALUK.
BY ADVS.
SRI.K.C.CHARLES
SRI.M.POLY MATHAI
SRI.VIMAL K.CHARLES
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
12.01.2022, ALONG WITH OP(C).1831/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
O.P.(C).Nos.160/2020 and 1831/2021
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 12TH DAY OF JANUARY 2022 / 22ND POUSHA,
1943
OP(C) NO. 1831 OF 2021
AGAINST THE ORDER IN RP 102/2019 OF KERALA CO-OPERATIVE
TRIBUNAL, THIRUVANANTHAPURAM.
PETITIONER/RESPONDENT:
A.P THOMAS @ TOMY PETER, AGED 81 YEARS,
S/O PETER, ANTHIKKAD, PETRIZ BUILDING,
KADAVANTHRA, KOCHI-20, ELAMKULAM VILLAGE,
KANAYANNUR TALUK, PIN-682020.
BY ADVS.
K.C.CHARLES
VIMAL K.CHARLES
A.T.RENJU
RESPONDENTS/PETITIONERS:
1 THE MATTANCHERRY SC/ST CO-OPERATIVE SOCIETY LTD
NO.R131, PANDIKUDY, MATTANCHERY PIN-682002,
KOCHI-2, REPRESENTED BY ITS SECRETARY.
2 THE SECRETARY,
MATTANCHERRY SC/ST CO-OPERATIVE SOCIETY LTD
NO.R131, PANDIKUDY,
MATTANCHERY PIN-682002, KOCHI-2.
BY ADVS.
M.M.MONAYE
M.PAUL VARGHESE
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
12.01.2022, ALONG WITH OP(C).160/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
O.P.(C).Nos.160/2020 and 1831/2021
3
'CR'
JUDGMENT
Original Petition No.1831/2021 has been filed under Article 227 of the Constitution of India, challenging Ext.P5 order dated 05.10.2021 passed by the Kerala Co-operative Tribunal, Thiruvananthapuram in Revision Petition No.102/2019.
2. According to the petitioner, despite having assertion on the part of the petitioner that the petitioner's name is A.P.Thomas alias Tomy Peter, the learned Tribunal remanded the matter for the purpose of deciding as to whether A.P.Thomas alias Tomy Peter are one and same person.
3. It is submitted by the learned counsel for the petitioner that the petitioner's name is A.P.Thomas alias Tomy Peter and the petitioner produced Ext.P8 certificate issued O.P.(C).Nos.160/2020 and 1831/2021 4 by the Village Officer dated 11.03.2013 stating that A.P.Thomas, S/o.Peter T.Anthikatt, Anthikkatt (H), Kadavanthra and Tomy Peter, S/o.Peter T.Anthikatt, Anthikkatt (H), Kadavanthra, Ernakulam are one and the same person.
4. Though the learned counsel for the Co- operative Society, the respondents herein, specifically asserted that the Tomy Peter is a different person, when he was asked whether any other person claiming himself as Tomy Peter approached the Society and claimed the Fixed Deposit, he conceded that no other person approached the Society till today. Thus, it appears that A.P.Thomas alias Tomy Peter is one and the same person and, therefore, the challenge on this ground is totally unsustainable.
5. Before concluding this point, it is necessary to address the question of O.P.(C).Nos.160/2020 and 1831/2021 5 maintainability of this petition filed under Article 227 of the Constitution of India. It is submitted by the learned counsel for the Co-operative Society that as per the decision reported in Valsaraj v. Rajan and Others :
2019 KHC 613, this Court observed that a Judicial Officer exercising the powers of State Transport Appellate Tribunal, acts as a persona designata and not in his capacity as pre-existing judicial authority in the district, he being a District Judge.
Therefore, judgment/order of the State Appellate Tribunal is not a judgment/order of a Civil court against which the remedy under Article 227 of the Constitution of India can be invoked. It is submitted by the learned counsel for the Co-operative Society that the status of Co-operative Tribunal is at par with the status of Appellate Tribunal and, therefore, a petition filed under Article 227 O.P.(C).Nos.160/2020 and 1831/2021 6 of the Constitution of India, is not maintainable. It is submitted further that in view of the ratio in Valsaraj's case (Supra), a petition challenging the said order under under Article 226 is perfectly maintainable. I do agree with the settled law.
6. It is settled in law that misquoting or non-quoting of provision of law is not a ground to dismiss an application or a legal proceeding, if the petition is otherwise maintainable in the eye of law, the same shall be entertained, treating the same, as one filed under the relevant provision. In view of the above settled law, I am inclined to treat this petition as one filed under Article 226 of the Constitution of India and, accordingly, this challenge at the instance of the Co- operative Society is not found maintainable.
7. As I have already observed, according to the petitioner in Original Petition O.P.(C).Nos.160/2020 and 1831/2021 7 No.1831/2021, he had made 12 deposits as detailed below:
Item FD Receipt Amount of
No. Numbers Deposits
1 1076 50,000
2 1077 50,000
3 878 42,132
4 880 42,000
5 1103 50,000
6 1104 1,00,000
7 1339 1,00,000
8 1340 1,00,000
9 1374 1,00,000
10 1400 1,00,000
11 1408 1,00,000
12 1353 1,00,000
Total 9,34,132
Out of which Item Nos.3, 4, 5, 7 and 8 are in the name of Tomy Peter and other deposits are in the name of A.P.Thomas.
8. The crux of the dispute is that A.P.Thomas alias Tomy Peter made Fixed Deposit in SC/ST Co-operative Society Ltd. No.131, Mattancherry and, thereafter, when he demanded O.P.(C).Nos.160/2020 and 1831/2021 8 for the money, the Society refused to give the money and in turn, A.P.Thomas alias Tomy Peter approached the Arbitrator and the Arbitrator pass Award in his favour. The Co-operative Society took the view that the deposits in the name of Tomy Peter cannot be given to A.P.Thomas and further Society had no sufficient fund to repay even the admitted deposit, in the name of A.P.Thomas also. The Arbitrator negatived the said contention.
9. When the order was challenged before the Co-operative Tribunal, the Tribunal without addressing the real issue, set aside the Award with a direction to the Arbitrator to consider the identity of the person with a specific mention in relation to item Nos.3, 4, 5, 7 and 8, which I have already extracted above. In view of Ext.P8 certificate produced in O.P.(C) No.1831/2021, the identity of A.P.Thomas alias Tomy Peter is fully O.P.(C).Nos.160/2020 and 1831/2021 9 established. That apart, there is no reason to discard Ext.P8 in the context of events that no other person claiming himself as Tomy Peter, so far not made any claim in respect of the Fixed Deposits, which were effected much earlier.
10. Be it so, I am of the view that the order in Revision Petition passed by the Co- operative Tribunal is illegal and, therefore O.P.No.1831/2021 is allowed and the said order is set aside. Consequently, it is held that the Award passed by the Arbitrator shall revive for executing the same.
11. O.P.(C) No.160/2020 is an application filed under Article 227 of the Constitution of India challenging that the Sub Court, Kochi has no jurisdiction to execute the Award of the Co-operative Tribunal and in this regard Section 76 of the Kerala Co-operative Societies Act has been given emphasis by the O.P.(C).Nos.160/2020 and 1831/2021 10 learned counsel for the Co-operative Society. Section 76 of the Kerala Co-operative Societies Act is extracted here under for easy reference.
"76. Execution or orders, etc.:- Every order made under sub-section (2) of Section 68 or under Section 75 every decision or award made under Section 70, every order made by the liquidator under Section 73 and every order made by the Tribunal under Section 82, Section 84, Section 85 or Section 86 and every order made under Section 83 shall, if not carried out-
(a) on a certificate signed by the Registrar or any person authorised by him in this behalf, be deemed to be a decree of a civil court and shall be executed in the same manner as a decree of such court; or
(b) where the order is for the recovery of money, be executed according to the law and under the rules for the time being in force for the recovery of arrears of public revenue due on land:
Provided that any application for such recovery shall be made- O.P.(C).Nos.160/2020 and 1831/2021 11
(i) to the Collector and shall be accompanied by a certificate signed by the Registrar or by any person authorised by him in this behalf;
(ii) within twelve years from the date fixed in the order, decision or award and if no such date is fixed, within twelve years from the date of the order, decision or award, as the case may be, or
(c) be executed by the Registrar or any other person subordinate to him empowered by the Registrar in this behalf, by the attachment and sale or sale without attachment of any property of the person or a society against whom the order, decision or award has been obtained or passed."
12. Refuting this contention, the learned counsel for the depositor placed reliance on the decision in Parappanangadi Co-operative Service Bank Ltd. v. Sainaba : 2013 KHC 2717 to contend that an Award shall be deemed to be a decree of Civil Court and shall be executed in a same manner as a decree of such court. O.P.(C).Nos.160/2020 and 1831/2021 12
13. In view of the settled law, I am not inclined to discuss this matter elaborately. Therefore, the challenge in O.P.(C) No. 160/2020 is found to be merit less. Therefore, O.P.(C) No. 160/2020 stands as dismissed.
14. Before parting, I would like to observe that the Mattancherry SC/ST Co-operative Society functioning as authorised by the Kerala Co-operative Societies Act, after having collected Fixed Deposit, is saying same excuses in the matter of refund of the amount covered by Fixed Deposit receipts. It is submitted by the learned counsel for the Co-operative Society that the Co-operative Society is running in loss and, therefore, the Co-operative Society could not repay the amount in lump and they can repay the amount only by way of instalments, that too @ Rs.50,000/- alone.
O.P.(C).Nos.160/2020 and 1831/2021 13
15. Though this submission had been made right from the very beginning, even on today, no amount has been paid. In this context, the Co-operative Department of Kerala State is directed to consider whether Co-operative Societies of this nature are to be allowed to function so as to put the depositors and other beneficiaries in trouble.
Therefore, there shall be a direction to the Secretary, Co-operative Department, Secretariat, Thiruvananthapuram to assess the functioning of the Society and also to assess, how much amount to be due from the Society to various persons, who deposited money, and also take a decision as to whether the Society is to be permitted to continue so as to put the members and other beneficiaries in trouble.
Registry shall forward a copy of this judgment to the Secretary, Co-operative Department, Secretariat, Thiruvananthapuram O.P.(C).Nos.160/2020 and 1831/2021 14 for compliance and report within a period of two months.
Sd/-
A.BADHARUDEEN, JUDGE.
ww O.P.(C).Nos.160/2020 and 1831/2021 15 APPENDIX OF OP(C) 160/2020 PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE AWARD IN ARC 2020/2018.
EXHIBIT P2 A TRUE COPY OF THE REVISION PETITION 102/2019.
EXHIBIT P3 TRUE COPY OF THE CHALAN DATED 22.8.2019.
EXHIBIT P4 A TRUE COPY OF THE CHALAN RECEIPT OF REMITTING FEE FOR FILING REVISION PETITION.
EXHIBIT P5 A TRUE COPY OF THE PETITION FOR A STAY IN R.P. EXHIBIT P6 A TRUE COPY OF THE EXECUTION PETITION EP NO.36/2018.
EXHIBIT P7 A TRUE COPY OF THE COUNTER AFFIDAVIT IN EP NO.36/2018.
EXHIBIT P8 A TRUE COPY OF THE STATUS OF E-COURT SERVICES DATED 14.1.2020 IN EP NO.36/2018.
EXHIBIT P9 TRUE COPY OF THE ORDER IN EP NO.
36/2018 DATED 14.1.2020 EXHIBIT P10 TRUE COPY OF THE PETITION TO ADVANCE THE CASE WHICH THE COPY WAS RECEIVED ON 12.02.2021.
O.P.(C).Nos.160/2020 and 1831/2021 16 RESPONDENT'S EXHIBITS:
EXHIBIT-R1 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER DATED 22/09/2019 IN EXT R2 EXECUTION PETITION.
EXHIBIT-R2 THE TRUE COPY OF THE PLAINT FILED IN ARC NO.2020/2018.
O.P.(C).Nos.160/2020 and 1831/2021 17 APPENDIX OF OP(C) 1831/2021 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 23.07.2018 IN ARC 2020/2018 ON THE FILE OF THE ASSISTANT REGISTRAR OF CO-
OPERATIVE SOCIETIES.
EXHIBIT P2 TRUE COPY OF THE AWARD DATED 03.09.2018 IN ARC 2020/2018.
EXHIBIT P3 TRUE COPY OF THE E.P.36/2018 DATED 30.11.2018 ON THE FILE OF THE SUB COURT, KOCHI.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 14/01/2020 IN EXHIBIT P3 OF THE SUB COURT, KOCHI.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN R.P 102/2019 DATED 5.10.2021 PASSED BY THE TRIBUNAL FOR THE CO-OPERATIVE SOCIETIES.
EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT IN LAR NO.434/2006 BEFORE THE HON'BLE SUB COURT, ERNAKULAM.
EXHIBIT P7 THE TRUE COPY OF THE JUDGMENT IN LA.
APP NO.466/2015.
EXHIBIT P8 THE TRUE COPY OF THE CERTIFICATE DATED 11-03-2013 ISSUED BY THE VILLAGE OFFICER, ELAMKULAM.
EXHIBIT P9 THE TRUE COPY OF THE PENSION BOOK OF THE PETITIONER.
O.P.(C).Nos.160/2020 and 1831/2021 18 RESPONDENTS' EXHIBITS:
EXHIBIT R1(A) THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT/DEFENDANT SOCIETY DATED 17.11.2021.
EXHIBIT R1(B) TRUE COPY OF THE PAPER PUBLICATION IN KERALA KAUMUDI, KOCHI EDITION DATED 03.09.2021.