Madras High Court
M.Selvakumar vs Muthusamy on 24 February, 2023
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
2023/MHC/838
A.S.No.402 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2023
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
A.S.No.402 of 2021
and
C.M.P.No.17513 of 2021
M.Selvakumar
S/o.Muthusamy Gounder ..Appellant
Vs.
1.Muthusamy
2.The Sale Officer,
B 461, Erode District Central Coop.Bank Ltd.,
Erode, Erode District.
3.The Deputy Registrar of Co-operative Societies,
Dharapuram Circle, Dharapuram,
Tiruppur District.
4.Erode District Central Cooperative
Bank Ltd., by its Special Officer,
Erode – 638 001,
Erode District.
5.The Cooperative Deputy Registrar,
(Execution and Dissolves)
Erode Central Cooperative Bank Ltd.,
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A.S.No.402 of 2021
Erode – 638 001,
Erode District.
6.Erode District Central Cooperative
Bank Ltd., Rep.by its Manager,
Vellakovil,
Tiruppur District. ..Respondents
Appeal filed under Order 41 Rule 1 read with Section 96 of
C.P.C., praying to set aside the judgment and decree dated 30.04.2013 made
in O.S.No.261 of 2010 on the file of the Additional District Court No.3,
Dharapuram.
For Appellant : Mr.N.Manokaran
For R3 : Mr.T.Chandrasekaran
Special Government Pleader
For R4 and R6 : Mr.M.R.Raghavan
For R1, R2 and R5 : No appearance
JUDGMENT
The Appeal Suit has been instituted, questioning the judgment and decree dated 30.04.2013 passed in O.S.No.261 of 2010 on the file of the Additional District Court No.3, Dharapuram.
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2. The parties are referred as per the ranking in the trial Court.
3. The appellant is the plaintiff, who instituted a suit for Declaration, Partition and Permanent Injunction.
4. The plaintiff has stated that he is the son of the first defendant and there was no partition between the plaintiff and the first defendant. The plaintiff has half share in the suit property. The suit property originally belonged to one Avudaiyappa Gounder, who is the paternal grand-father of the first defendant by purchase under two Sale Deeds dated 03.02.1925 and 03.06.1940. The said Mr.Avudaiyappa Gounder died long back, leaving behind his son Mr.Chennimalai Gounder, who also died about 40 years ago, leaving his only son Mr.Muthusamy, first defendant in the suit.
5. The plaintiff is the only son of the first defendant. Thus, the suit schedule property is an ancestral property of the plaintiff and the first defendant is entitled to half share. The first defendant mortgaged the property by borrowing a loan from the District Central Co-operative Bank, Erode. He committed default in repayment and the Co-operative Bank 3/16 https://www.mhc.tn.gov.in/judis A.S.No.402 of 2021 instituted ARC Proceedings and the competent authority under the provisions of the Tamil Nadu Co-operative Societies Act, 1983, passed an award against the first defendant in the year 2000.
6. The property was auctioned in pursuant to the orders passed in E.P.R.No.1625/2000-2001 and brought for auction sale. Subsequently, the suit was instituted, claiming half share in the suit schedule property.
7. The Central Co-operative Bank filed a written statement, denying the plaint averments. It is not in dispute that the 1st defendant borrowed a sum of Rs.5,00,000/- as loan from the fourth defendant for the purpose of construction of Oil Mill in the suit property by mortgaging a specific extent of 50 cents in the suit property in favour of the fourth defendant as a security for the loan. The first defendant executed the mortgage deed and the same was registered on 13.11.1991. Out of the mortgage loan amount received, the first defendant constructed the Oil Mill, purchased necessary machineries and accessories and was running the Oil Mill in the name and style of “Selvakumar Oil Mill”, i.e., his son plaintiff's name. However, the 4/16 https://www.mhc.tn.gov.in/judis A.S.No.402 of 2021 first defendant committed default in repayment and therefore, the Central Co-operative Bank initiated action for recovery and based on the Award, Execution Petition was also filed and the subject property was brought for auction sale.
8. The trial Court framed the following issues.
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9. The main issue raised before the trial Court was, whether the suit is maintainable, in view of the fact that the mortgage loan was obtained from a Co-operative society, which is registered under the provisions of the Tamilnadu Co-operative Societies Act. Therefore, it would be sufficient if the said issue has been decided by this Court for the purpose of disposal of the appeal suit. Only if the suit is maintainable under law, then alone, the other issues needs to be adjudicated and not otherwise.
10. The point for consideration in this regard is that the appellant and the respondents have not denied the fact that the 1st defendant borrowed a mortgage loan of Rs.5,00,000/- for construction of Oil Mill in the suit schedule property and committed default in repayment and action was initiated by the Co-operative society to recover the loan amount, which resulted in an award in favour of the Bank and subsequently, the Execution 6/16 https://www.mhc.tn.gov.in/judis A.S.No.402 of 2021 Petition was filed and the suit property, which was mortgaged was brought for auction sale.
11. In the context of the above admitted facts, the provisions of the Tamil Nadu Co-operative Societies Act, 1983, which all are relevant is to be considered.
12. Section 90 of the Tamil Nadu Co-operative Societies Act stipulates “disputes”. Sub-Section 1 contemplates, If any dispute touching the constitution of the board or the management or the business of a registered society, among members, past members and persons claiming through members, past members and deceased members shall raise a dispute under the said Section 90 of the Tamil Nadu Cooperative Societies Act and therefore, the provisions of the Act would be inapplicable.
13. In this regard, Section 90 of the Tamil Nadu Cooperative Societies Act not only covers the member, but the persons claiming through a member shall also raise a dispute under Section 90 of the Tamil Nadu 7/16 https://www.mhc.tn.gov.in/judis A.S.No.402 of 2021 Cooperative Societies Act. It is not in dispute that the plaintiff is the son of the first defendant and he is claiming mortgaged property through his father and therefore, he is falling under the category of 'claiming through member' under Section 90 (1) (a) of the Tamil Nadu Co-operative Societies Act. Thus, there is no impediment for the plaintiff to raise a dispute under Section 90 of the Tamil Nadu Cooperative Societies Act.
14. Let us now consider, whether a suit under the Code of Civil Procedure is maintainable, when the actions are initiated under the provisions of the Tamil Nadu Co-operative Societies Act.
15. The settled principle of law is that Special Act will prevail over the General law. Co-operative Societies Act is a special Enactment. The society is registered under the provisions of the Tamil Nadu Co-operative Societies Act, and is governed under the said provisions and therefore, the suit under the Code of Civil Procedure is expressly barred under Section 156 of the Tamil Nadu Cooperative Societies Act. 8/16 https://www.mhc.tn.gov.in/judis A.S.No.402 of 2021
16. Section 156 contemplates Bar of jurisdiction of Civil Courts – “Notwithstanding anything contained in any other law for the time being in force, no order or award passed, decision or action taken or direction issued under this Act by an arbitrator, a liquidator, the Registrar or an officer authorised or empowered by him, the Tribunal or the Government or any officer subordinate to them, shall be liable to be called in question in any court and no injunction shall be granted by any court in respect of anything which is done or intended to be done by or under this Act.”
17. Thus, the jurisdiction of the Civil Court has been expressly barred under Section 156 of the Tamil Nadu Cooperative Societies Act. Consequently, no suit under Section 9 of the Civil Procedure Code is maintainable. Pertinently, the Tamil Nadu Co-operative Societies Act provides mechanism for resolving the disputes and for execution of the decrees and orders passed under the provisions of Tamil Nadu Co-operative Societies Act. When self-relating mechanisms are contemplated under the Special Act, that alone would be applicable for resolving the issues or to redress the grievances.
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18. The learned counsel for the appellant made a reference regarding Rule 135 of the Tamil Nadu Co-operative Societies Rules. Rule 135 stipulates 'Investigation of claims and objections to attachment of property '. Sub-Rule (3) to Rule 135 of the Tamil Nadu Co-operative Societies Rules states that “Where a claim or an objection is preferred, the party, against whom an order is made by the sale officer, may institute a suit within six months from the date of the order to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order made by the sale officer shall be conclusive.”
19. The word “Suit” employed in Rule 135 would not indicate the suit to be instituted under the Code of Civil Procedure. The word “Suit” employed would undoubtedly indicate the suit instituted under Section 90 of the Tamil Nadu Co-operative Societies Act or any other proceedings under the provisions of the Act. The interpretation of the rules cannot be in contravention to the provisions of the Act. The Rule must be in consonance with the provisions of the Act and cannot be read in isolation. 10/16 https://www.mhc.tn.gov.in/judis A.S.No.402 of 2021
20. Even presuming the word “Suit” is employed in the Rules, there is no indication that it is the suit under the Code of Civil Procedure and therefore, the Court has to interpret in consonance with the provisions of the Act and thus, there is no ambiguity. The suit indicated in Rule 135 of the Tamil Nadu Co-operative Societies Rules is to be construed as a suit under Section 90 of the Tamil Nadu Co-operative Societies Act or an appeal under Section 152 of the Tamil Nadu Co-operative Societies Act. Thus, the very reference made by the appellant is irrelevant and cannot be accepted.
21. In the present case, the plaintiff is the son of the first defendant and the first defendant borrowed a loan and mortgaged the suit schedule property. While so, the legal heirs are also liable for repayment under the provisions of the Tamil Nadu Co-operative Societies Act, 1983 and more so, the plaintiff is claiming half share of the suit schedule property. Thus, he has to repay the loan amount for the purpose of releasing the property. However, in the present case, the property was already brought under auction and thus, the said question could not arise at all. 11/16 https://www.mhc.tn.gov.in/judis A.S.No.402 of 2021
22. The suit preferred under Section 90, before the notified authority, under the provisions of the Tamil Nadu Co-operative Societies Act is an appealable one under Section 152 of the above said Act. The appeal lies before the District Court and the Principal District Judges of the District Courts are designated as Special Co-operative Tribunals under Section 152 of the Tamil Nadu Cooperative Societies Act. Thus the aggrieved person from and out of a decree or an order passed by the competent authority under Section 90 of the Tamil Nadu Cooperative Societies Act has to approach the District Court. The appeal would be entertainable under Section 152 of the Tamil Nadu Cooperative Societies Act before the District Court having jurisdiction and thus the suit filed under the Code of Civil Procedure under Order 7 is not maintainable.
23. Since, Section 156 of the Tamil Nadu Cooperative Societies Act imposes an express bar, the suit under Section 9 of C.P.C., is not maintainable and therefore, the finding of the trial Court that the suit is not maintainable is in consonance with the provisions of the Tamil Nadu Co- 12/16 https://www.mhc.tn.gov.in/judis A.S.No.402 of 2021 operative Societies Act, which is a Special Act and in view of Section 9 of the Code of Civil Procedure.
24. The learned counsel for the respondent/Co-operative Bank brought to the notice of this Court that against the first defendant, the proceedings were initiated in A.R.C.No.466/1998-1999 and an award was passed. Thereafter, Execution Petition was filed and the suit property was brought under the auction sale and it was concluded during the relevant point of time. However, the plaintiff has filed a suit in the year 2010, long after the award passed by the competent authority under the provisions of the Act.
25. However, money is yet to be recovered on account of the Lis Pendens.
26. In view of the facts and circumstances, the judgment and decree dated 30.04.2013 made in O.S.No.261 of 2010 on the file of the Additional District Court No.3, Dharapuram stands confirmed and consequently, the 13/16 https://www.mhc.tn.gov.in/judis A.S.No.402 of 2021 Appeal Suit in A.S.No.402 of 2021 is dismissed. The appellant shall deposit the loan amount along with the interest as of now within a period of two months from the date of receipt of a copy of this judgment. In the event of failure, the respondent/Co-operative Bank shall proceed with the auction sale of the suit mentioned property and realise the loan amount by following the procedures as contemplated. No costs.
24.02.2023 Index : Yes Speaking order:Yes Neutral Citation:Yes kak To
1.The Judge, Additional District Court No.3, Dharapuram.
2.The Sale Officer, B 461, Erode District Central Coop.Bank Ltd., Erode, Erode District.
3.The Deputy Registrar of Co-operative Societies, Dharapuram Circle, Dharapuram, Tiruppur District.
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4.The Special Officer, Erode District Central Cooperative Bank Ltd., Erode – 638 001, Erode District.
5.The Cooperative Deputy Registrar, (Execution and Dissolves) Erode Central Cooperative Bank Ltd., Erode – 638 001, Erode District.
6.Erode District Central Cooperative Bank Ltd., Rep.by its Manager, Vellakovil, Tiruppur District.
15/16 https://www.mhc.tn.gov.in/judis A.S.No.402 of 2021 S.M.SUBRAMANIAM, J.
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