Kerala High Court
Johny Urumees S/O Varghese vs State Of Kerala
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938
WP(C).NO. 5706 OF 2010 (K)
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PETITIONER(S):
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1. JOHNY URUMEES S/O VARGHESE,
MAMPILLY HOUSE, ALUVA-1.
2. TONY PAUL S/O PAUL DOMINIC,
OORAKATH HOUSE, PIPELINE ROAD, NAZARATH, ALUVA.
3. RAPHAEL LAZAR, S/O.A.O.LAZAR,
ALOOKARAN HOUSE, U.C.C.COLLEGE P.O., ALUVA-2.
4. T.M.RAHIM S/O T.P.HYDROS,
AYANIKKATTU PARAMBIL HOUSE, KOTTAPPURAM, ALANGAD.
BY ADVS.SRI.S.SREEKUMAR
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.S.VAIDYANATHAN
RESPONDENT(S):
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1. STATE OF KERALA, REPRESENTED BY
SECRETARY TO DEPARTMENT OF CO-OPERATIVE,,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. THE JOINT REGISTRAR,
ERNAKULAM DISTRICT CO-OPERATIVE SOCIETY,, ERNAKULAM.
3. THE ALWAYE URBAN CO-OPERATIVE BANK LTD.,
MARKET ROAD, ALUVA REPRESENTED BY ITS, GENERAL MANAGER.
4. RESERVE BANK OF INDIA,
URBAN BANK DEPARTMETN, THIRUVANANTHAPURAM.
R3 BY ADV. SRI.R.RAGHUKUMAR (ALUVA)
R4 BY ADV. SRI.P.JACOB VARGHESE (SR.)
R4 BY ADV. SRI.VIVEK VARGHESE P.J.
BY GOVERNMENT PLEADER SRI. P.S SAJEEV
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).NO. 5706 OF 2010 (K)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: TRUE COPY OF AGREEMENT DATED 08.11.1990 EXECUTED BETWEEN 3RD
RESPONDENT AND 1ST PETITIONER
EXT.P2: TRUE COPY OF ORDER G.O.(RT.)NO.96/95/CO-OPERATIVE DATED
23.02.1995 PASSED BY THE GOVERNMENT CO-OPERATIVE DEPT.
EXT.P3: TRUE COPY OF AGREEMENT DATED 04.11.1998 EXECUTED BETWEEN 3RD
RESPONDENT AND 3RD PETITIONER
EXT.P4: TRUE COPY OF REPRESENTATION DATED 10.05.2002 SUBMITTED BY THE
1ST PETITIONER TO THE 3RD RESPONDENT
EXT.P5: TRUE COPY OF REPLY DATED 16.05.2002 ISSUED BY 3RD RESPONDENT
EXT.P6: TRUE COPY OF JUDGMENT ION OP.NO.25872/2002 DATED 22.10.2008
EXT.P7: TRUE COPY OF ORDER NO.CRB 2342/09/K DATED 29.4.2009 ISSUED BY
THE 3RD RESPONDENT TO PETITIONERS
EXT.P8: TRUE COPY OF JUDGMENT IN W.P.(C).NO.22472/09
EXT.P9: TRUE COPY OF ORDER DATED 16.1.2010 OF 1ST RESPONDENT
RESPONDENTS' EXHIBITS:
ANNEXURE R4(A): TRUE COPY OF THE MEMORANDUM OF OP.NO.25872/2002 WITH
EXHIBITS OF THIS HON'BLE COURT
ANNEXURE R4(B): TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE RESERVE
BANK OF INDIA (4TH RESPONDENT) IN OP.NO.25872/2002 OF THIS HON'BLE
COURT
ANNEXURE R4(C): TRUE COPY OF JUDGMENT DT.22/10/08 IN OP.NO.25872/2002
OF THIS HON'BLE COURT
ANNEXURE R4(D):TRUE COPY OF DECISIONO.C.R.B.2342/09/K.DIS.
DT.29.04.2009 OF JRCS
ANNEXURE R4(E): TRUE COPY GOVERNMENT ORDER NO.24/10 DT.16/01/2010
ANNEXURE R4(F): TRUE COPY OF RBI LETTER UBD (T)NO.242/16.01.02/2002-
03 DT.24TH JULY, 2002
//TRUE COPY//
P A TO JUDGE
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).No.5706 of 2010
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Dated this the 30th day of May, 2016
J U D G M E N T
The petitioners are tenants in a three storied building owned by the 3rd respondent. They had occupied 4 rooms on the ground floor, while the 1st floor was occupied by the 3rd respondent. As the building was in a dilapidated condition and had to be reconstructed, the petitioners entered into agreements with the 3rd respondent wherein the 3rd respondent agreed to complete the reconstruction within a year, and also undertook to provide rooms in the new building to the petitioners. It would appear that subsequent to the reconstruction, and acting on a complaint from a member of the 3rd respondent, the 2nd respondent rescinded the resolution dated 15.09.1990 of the 3rd respondent which had resolved to provide rooms in the reconstructed building to the petitioners. The said decision was challenged in an appeal before the 1st respondent which was allowed by setting aside the decision of the 2nd respondent. The 3rd respondent challenged the said appellate order before this Court in O.P.No.11671 of 1996. There were also steps taken to evict the petitioners in the meanwhile. -2- W.P.(C). No.5706 of 2010 Negotiations entered into between the petitioners and the respondents, however, led to separate agreements being entered into by the 3rd respondent with the petitioners, a sample of which is produced as Ext.P3 in the writ petition, In the said agreements, the 3rd respondent agreed to allot one room each to the petitioners, on the ground floor of the newly constructed building. In view of the agreement entered into between the petitioners and the 3rd respondent, O.P.No.11671 of 1995 was later withdrawn. After the completion of the construction of the building, the 3rd respondent was constrained to take a stand against Ext.P3 agreement, to allot rooms to the petitioners in the reconstructed building. It was the stand of the 3rd respondent that the 4th respondent was not permitting it to let out the shop rooms in the building, by placing reliance on Section 9 of the Banking Regulation Act, and hence, in the light of the said directions of the 4th respondent, the 3rd respondent could not honour the agreements entered into with the petitioners. The petitioners, therefore, approached this Court through O.P.No.25872 of 2002. The prayers in the said original petition were as follows:
-3- W.P.(C). No.5706 of 2010
"(i) declare that 4th respondent has no authority under section 9 of the Banking Regulation Act to prohibit letting out of shop rooms by 3rd respondent to petitioners in pursuance of Ext.P3.
(ii) issue a writ of mandamus or other writ order or direction compelling 4th respondent to accord permission to 1st respondent to let out shop rooms to petitioners in pursuance of Ext.P3;
(iii) issue a writ of mandamus or other writ order or direction compelling 2nd respondent to issue necessary direction to 1st respondent to let out the rooms to petitioners in pursuance of Ext.P3;
and
(iv) issue such other writ order or direction as may be necessary to the interest of justice"
2. The said original petition was disposed by Ext.P6 judgment dated 22.10.2008 whereby this Court, taking note of the intervening developments, directed the petitioners to approach the 2nd respondent who was to take appropriate action in accordance with law, after hearing the petitioners and the 1st respondent, within four months from the date of receipt of a copy of the judgment. It is relevant to note that Ext.P6 judgment, to the extent it did not consider the first two prayers of the petitioners in O.P.No.25872 of 2002, regarding the validity of the directions of the 4th respondent, relying on Section 9 of the Banking Regulation -4- W.P.(C). No.5706 of 2010 Act, was not carried in appeal by the petitioners in any intra court appeal. The 2nd respondent thereafter, acting on the directions in Ext.P6 judgment of this Court, proceeded to pass Ext.P7 order dated 29.04.2009 upholding the stand of the 3rd respondent that, in view of the directions issued by the 4th respondent, it could not offer the petitioners the shop rooms in the reconstructed building. The petitioners therefore preferred a further appeal before the 1st respondent which was also rejected by Ext.P9 order dated 16.01.2010 taking note of the fact that the 3rd respondent could not act contrary to the directions of the 4th respondent in the matter of letting out rooms in the building. In the writ petition, Exts.P5, P7 and P9 orders of the 3rd respondent, 2nd respondent and 1st respondent respectively are impugned.
3. A counter affidavit has been filed on behalf of the 4th respondent wherein it is stated that the 4th respondent had required the 3rd respondent bank to get the tenants vacated from its premises and dispose the non-banking assets in accordance with the provisions of Section 9 of the Banking Regulation Act. The gist of the contentions of the 4th respondent is that inasmuch -5- W.P.(C). No.5706 of 2010 as Section 9 of the Banking Regulation Act prohibited Co-operative Banks from holding such immovable property, other than what was required by it for its own use, the 3rd respondent could not hold on to the reconstructed building or such portion of it as it was intending to let out to the petitioners herein.
4. I have heard Sri.S.Sreekumar, the learned Senior counsel appearing for the petitioners, Sri.P.S.Sajeev, the learned Government Pleader for respondents 1 and 2, Sri.R.Raghukumar, the learned counsel for the 3rd respondent, and Sri.Vivek Varghese P.J, the learned Standing counsel for the 4th respondent.
5. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, in the instant case, the directions given by the 4th respondent to the 3rd respondent, which effectively prevented the 3rd respondent from honouring its commitments under the agreements entered into the petitioners with regard to allotment of rooms in the reconstructed building, had been challenged by the petitioners before this Court in O.P.No.25872 of 2002. On that occasion, by Ext.P6 judgment, -6- W.P.(C). No.5706 of 2010 this Court directed the petitioners to approach the 2nd respondent for a resolution of the dispute. As a matter of fact, the dispute with regard to the legality of the directions issued by the 4th respondent to the 3rd respondent bank was not one that could have been resolved by the 2nd respondent inasmuch as the said respondent did not have any jurisdiction to decide the issues that arose under the Banking Regulation Act. In that view of the matter, Ext.P7 order of the 2nd respondent, which finds that the 3rd respondent could not have allotted rooms in the reconstructed building owing to the directions issued by the 4th respondent, cannot be said to be illegal and, for the same reason, Ext.P9 order of the 1st respondent, that upholds Ext.P7 order of the 2nd respondent, also cannot be found fault with. The decision of the petitioners not to challenge Ext.P6 judgment, to the extent it did not specifically consider the issue of legality of the directions of the 4th respondent to the 3rd respondent placing reliance on Section 9 of the Banking Regulation Act, in further proceedings, must be seen as fatal to its attempt in this writ petition to re- agitate the said issue at this distance of time. This Court cannot now entertain the challenge against the legality of the directions -7- W.P.(C). No.5706 of 2010 issued by the 4th respondent to the 3rd respondent, in the absence of any challenge against Exts.P6 judgment of this Court. In my view, the decision of the first and 2nd respondent, based on the directions of the 4th respondent to the 3rd respondent, cannot be found fault with and, if it is the case of the petitioners that they are entitled to a specific performance of the agreement entered into between them and the 3rd respondent, that is a matter that will have to be pursued before a civil court of competent jurisdiction.
In the result, the writ petition in its challenge against Exts.P5 and P7 and P9 orders fails and is accordingly dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE mns/30.05.16