Kerala High Court
Meenachil Rubber Marketing & vs The Choondachery Service Co-Operative ... on 5 July, 2017
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
[C.R.]
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
MONDAY, THE 12TH DAY OF MARCH 2018 / 21ST PHALGUNA, 1939
WA.No.1977 of 2017 IN WPC. 18243/2015
(AGAINST THE JUDGMENT IN WP(C) 18243/2015
OF HIGH COURT OF KERALA, DATED 05-07-2017)
APPELLANTS/RESPONDENTS 1 & 2:
1 MEENACHIL RUBBER MARKETING &
PROCESSING CO-OPERATIVE SOCIETY LTD. NO.K 118,
REPRESENTED BY MANAGING DIRECTOR, PALA-686 575,
KOTTAYAM.
2 MANAGING COMMITTEE OF THE MEENACHIL
RUBBER MARKETING & PROCESSING CO-OPERATIVE
SOCIETY LTD.NO.K.118,
REPRESENTED BY PRESIDENT, PALA-686 575, KOTTAYAM.
BY ADVS.SRI.SHAJI THOMAS
SRI.MOHAN PULIKKAL
SMT.RAHANA JOSE
SRI.JEN JAISON
RESPONDENTS/PETITIONER & 3RD RESPONDENT:
1. THE CHOONDACHERY SERVICE CO-OPERATIVE BANK LTD.NO.167,
REPRESENTED BY ITS SECRETARY, CHOONDACHERRY .P.O,
KOTTAYAM-686 579.
2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETY(GENERAL),
KOTTAYAM-686 001.
ADDL.R3. ADDL.R3 IS SUO MOTU IMPLEADED
ADDL.R3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
THIRUVANANTHAPURAM.
(ADDL. R3 IS SUO MOTU IMPLEADED AS PER ORDER DATED 13.11.2017)
R1 BY SRI.P.N.MOHANAN
R2 & R3 BY SMT. K.R. DEEPA, GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 8.2.2018 ALONG WITH
W.A.NO.2351/2017, THE COURT ON 12.3.2018 DELIVERED THE FOLLOWING:
ss
P.N.RAVINDRAN, J [C.R]
&
R.NARAYANA PISHARADI, J
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W.A.Nos.1977 of 2017 & 2351 of 2017
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Dated this the 12th day of March, 2018
JUDGMENT
R. Narayana Pisharadi, J These writ appeals are directed against the judgment rendered by a learned single Judge of this court in W.P. (C)No.18243 of 2015 and W.P.(C)No.39498 of 2015. Writ Appeal No.1977 of 2017
2. This appeal arises out of the judgment in W.P. (C)No.18243 of 2015. The brief facts of this case are as follows:
Choondacherry Service Co-operative Bank Limited, the writ petitioner, had deposited Rs.90,00,000/- in the Meenachil Rubber Marketing and Processing Co-operative Society. The amount was deposited for a period of 13 months. The fixed deposit made has attained maturity on 14.04.2015. But, the Society refused to refund the amount covered by the fixed deposit receipt to the petitioner bank. The writ petition was filed for issuing a direction to the Society to pay the amount covered by the fixed deposit receipt to the petitioner bank with future interest.
3. The Society filed counter affidavit in the writ petition W.A.Nos.1977 of 2017 & 2351 of 2017 2 admitting the liability to pay the amount to the bank. But, the Society contended that no writ petition is maintainable against a co- operative society. The Society also contended that the writ jurisdiction of the court cannot be exercised to grant the relief prayed for by the bank when alternative statutory remedy is available to the bank. The Society pleaded that it could not pay the amount due to the bank within time due to financial crunch.
4. The learned single Judge held that since the Society has admitted the liability to the bank there is no dispute to be decided by invoking the remedy provided under Section 69 of the Kerala Co- operative Societies Act, 1969 (hereinafter referred to as the 'Act'). The learned single Judge repelled the contention that no writ petition would lie against a co-operative society. The learned single Judge allowed the writ petition and directed the Society to pay the entire amount due to the bank with interest within a period of four months from the date of receipt of a copy of the judgment. The learned single Judge also directed that the Society will be liable to pay additional interest at the rate of 9%, if it failed to pay the amount within the stipulated time. Aggrieved by the judgment of the learned single Judge, the Society has filed W.A.No.1977 of 2017.
W.A.Nos.1977 of 2017 & 2351 of 2017 3 Writ Appeal No.2351 of 2017
5. This appeal arises from the judgment in W.P. (C)No.39498 of 2015. The brief facts of this case are as follows:
Muthalappuram Service Co-operative Bank Limited, the writ petitioner, deposited a total amount of Rs.50,65,046/- in the Kerala State Co-operative Rubber Marketing Federation Limited, otherwise known as Rubber Mark. As on 31.03.2005, the total amount outstanding as deposit, including interest, is Rs.64,77,246.87. Rubber Mark has admitted this fact in Ext.P13 letter given to the bank. On attaining maturity of the deposits made, the bank demanded the aforesaid amount from Rubber Mark. But, the Rubber Mark refused to pay the amount due to the bank. The writ petition was filed to issue direction to the Rubber Mark to pay the amount due to the bank with interest.
6. Rubber Mark filed a counter affidavit in the writ petition contending that the bank has got effective alternative remedy under Section 69 of the Act. Rubber Mark also contended that the plea of the bank that the deposits have attained maturity is not correct.
7. The learned single Judge held that Rubber Mark has admitted deposit of an amount of Rs.30,00,000/- by the bank and it has also admitted that an amount of Rs.64,77,246.87 is due from it to the bank. The learned single Judge directed Rubber Mark to W.A.Nos.1977 of 2017 & 2351 of 2017 4 repay the amount covered by the fixed deposit to the bank within a period of six months from the date of receipt of a copy of the judgment. Rubber Mark has filed W.A.No.2351 of 2017 challenging the judgment of the learned single Judge.
8. We have heard the learned counsel for the appellants and also the respondents/ writ petitioners.
9. Learned counsel for the appellants contended that no writ petition is maintainable against a co-operative society. Learned counsel for the appellants also contended that the writ petitioners have got an alternative statutory remedy available under Section 69 of the Act and therefore the learned single Judge went wrong in exercising the jurisdiction under Article 226 of the Constitution by allowing the writ petitions and directing the appellants to repay the amounts due to the writ petitioners.
10. Per contra, learned counsel for the respondents/writ petitioners contended that the appellants have admitted the liability to pay amount to the writ petitioners and therefore, there is no dispute to be referred to arbitration as provided under Section 69 of the Act. Learned counsel for the respondents also contended that the appellants have the obligation and duty to repay the amount due to the writ petitioners and therefore, the writ petitions are maintainable.
W.A.Nos.1977 of 2017 & 2351 of 2017 5
11. On a consideration of the rival contentions raised by the parties, we are of the view that it is really not necessary to decide whether a writ petition is maintainable or not against a co-operative society. A Full Bench of this court has held in John v. Liquidator (2006(1) KLT 11) that a writ will lie against a co-operative society where the duty owed by the society is of a public nature or when there is infringement of any statutory provision by the society. The decision of the Full Bench in John's case (supra) has been confirmed by a Larger Bench of this court in Association of Milma Officer's Ksheera Bhavan v. State of Kerala (2015(1) KLT 849). There is no pleadings in the writ petitions regarding violation of any statutory provisions by the appellants or breach of any public duty by them. In the absence of such pleadings, we do not think it proper or necessary to enter on a finding on the issue regarding maintainability of writ petition against a co-operative society. The appeals can be disposed of by considering the question whether the writ jurisdiction of the court should have been exercised by the learned single Judge when alternative statutory remedy under Section 69 of the Act was available to the writ petitioners.
12. Section 69 of the Act states the disputes which are required to be decided by the Arbitration court and the Registrar under the Act. Clause (d) of Section 69(1) provides that W.A.Nos.1977 of 2017 & 2351 of 2017 6 notwithstanding anything contained in any law for the time being in force, if a dispute arises between the society and any other society, such dispute shall be referred to the Co - operative Arbitration Court constituted under Section 70A, in the case of non - monetary disputes and to the Registrar, in the case of monetary disputes and the Arbitration Court, or the Registrar, as the case may be, shall decide such dispute and no other Court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute.
13. Learned counsel for the writ petitioners would contend that the appellants admitted the liability to pay the amount covered by the fixed deposits and therefore, there is no dispute to be referred to arbitration under Section 69 of the Act.
14. The expression 'dispute' is defined in Section 2(i) of the Act. Section 2(i) reads thus: "dispute" means any matter touching the business, constitution, establishment or management of a society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a society, whether such claim be admitted or not. A bare perusal of this definition would show that a claim in respect of any sum payable to or by a society is dispute whether the claim is admitted or not.
15. A Division Bench of this Court has held in the judgment W.A.Nos.1977 of 2017 & 2351 of 2017 7 dated 24.05.2007 in W.A.No.1202 of 2007 (Managing Director, Kerala State Co-operative Rubber Marketing Federation v. Kallumala Agricultural Co-operatve Bank Ltd) as follows:
b