Kerala High Court
The Angadi Service Co-Operative Bank ... vs Nissamu Kutty on 1 March, 2016
Author: Dama Seshadri Naidu
Bench: Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937
WP(C).No. 2036 of 2016 (D)
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PETITIONER:
THE ANGADI SERVICE CO-OPERATIVE BANK LTD.NO.2770,
REPRESENTED BY ITS SECRETARY, ANGADI P.O., RANNI,
PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.V.G.ARUN
SRI.T.R.HARIKUMAR
RESPONDENTS:
1. NISSAMU KUTTY,
CHANTHAYIL CHERUVILA VEEDU, ANGADI P.O., RANNI,
PATHANAMTHITTA - 689 674.
2. JOJI MATHEW,
PUTHEN VELIL HOUSE, ETTICHUVADU P.O.,
PATHANAMTHITTA - 689 674.
3. P.KUTTAPPAN,
ELECTORAL OFFICER/DEPUTY REGISTRAR (GENERAL),
OFFICE OF THE JOINT REGISTRAR,
PATHANAMTHITTA - 689 001.
4. M.K.PRAKASH,
RETURNING OFFICER/UNIT INSPECTOR, ANGADI,
OFFICE OF THE ASSISTANT REGISTRAR,
ANGADI P.O., PATHANAMTHITTA - 689 674.
5. JACOB MATHEW KARIMKUTTIYIL,
MEMBER, DIRECTOR BOARD,
ANGADI SERVICECO-OPERATIVE BANK LTD. NO.2770
ANGADI P.O., RANNI, PATHANAMTHITTA - 689 674.
6. DR.GEORGE THOMAS, MEMBER, DIRECTOR BOARD,
ANGADI SERVICE CO-OPERATIVE BANK LTD.NO.2770
ANGADI P.O., RANNI, PATHANAMTHITTA - 689 674.
7. B.SURESH, MEMBER, DIRECTOR BOARD,
ANGADI SERVICE CO-OPERATIVE BANK LTD.NO.2770,
ANGADI P.O., RANNI, PATHANAMTHITTA - 689 674.
8. V.A.ABRAHAM, MEMBER, DIRECTOR BOARD,
ANGADI SERVICE CO-OPERATIVE BANK LTD.NO.2770,
ANGADI P.O., RANNI, PATHANAMTHITTA - 689 674.
9. V.T.ALEXANDER,
WP(C).No. 2036 of 2016 (D)
: 2 :
MEMBER, DIRECTOR BOARD,
ANGADI SERVICE CO-OPERATIVE BANK LTD, NO.2770,
ANGADI P.O., RANNI, PATHANAMTHITTA - 689 674.
10. VIVIN MATHEW,
MEMBER, DIRECTOR BOARD,
ANGADI SERVICE CO-OPERATIVEBANK LTD.NO.2770,
ANGADI P.O., RANNI, PATHANAMTHITTA - 689 674.
11. M.K.THANKAPPAN,
MEMBER, DIRECTOR BOARD,
ANGADI SERVICE CO-OPERATIVE BANK LTD.NO.2770,
ANGADI P.O., RANNI, PATHANAMTHITTA 689 674.
12. ELENIAMMA SHAJI,
MEMBER, DIRECTOR BOARD,
ANGADI SERVICECO-OPERATIVE BANK LTD.NO.2770,
ANGADI P.O.RANNI, PATHANAMTHITTA - 689 674.
13. JESSY ALEX,
MEMBER, DIRECTOR BOARD,
ANGADI SERVICE CO-OPERATIVE BANK LTD.NO.2770,
ANGADI P.O.RANNI, PATHANAMTHITTA - 689 674.
14. MARIAMMA THOMAS,
MEMBER, DIRECTOR BOARD,
ANGADI SERVICE CO-OPERATIVE BANK LTD.NO.2770,
ANGADI P.O., RANNI, PATHANAMTHITTA - 689 674.
15. KERALA STATE CO-OPERATIVE ELECTION COMMISSION,
CO-BANK TOWER, THIRUVANANTHAPURAM - 695 001.
16. THE CO-OPERATIVE ARBITRATION COURT,
THIRUVANANTHAPURAM - 695 001.
ADDL.R17 IMPLEADED:
17. GEORGE VARGHESE, MEMBER, DIRECTOR BOARD,
ANGADI SERVICE CO-OPERATIVE BANK LTD. NO. 2770,
ANGADI P.O., RANNI, PATHANAMTHITTA - 689 674.
(ADDL.R17 IS IMPLEADED AS PER ORDER DATED 01.03.2016 IN
I.A. NO. 1661 OF 2016)
R1,R 2,R 6,R 9,R 10 & ADDL.17 BY ADV. SRI.V.SETHUNATH
R5,R7,R8,R11,R12,R13,R14 BY ADV. SRI.ARJUN RAGHAVAN
R5,R7,R8,R11,R12,R13,R14 BY ADV. SRI.ADITHYA RAJEEV
R BY SRI. G. GOPAKUMAR, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
01-03-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 2036 of 2016 (D)
: 3 :
APPENDIX
PETITIONERS' EXHIBITS :
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EXT.P-1: A TRUE COPY OF THE ELECTION NOTIFICATION NO.E(1)
1905/2012/SCEC DATED 4.10.2012.
EXT.P-2: A TRUE COPY OF THE PLAINT IN ARC 79/2012, FILED BY
RESPONDENTS 1 AND2 DATED 6.12.2012.
EXT.P-3: A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER
IN ARC79/2012 DATED 19.3.2013.
EXT.P-4: A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE
RESPONDENTS 3 AND 4, IN ARC 79/2012.
EXT.P-5: A TRUE COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENTS
5, 7, 8 AND 11 TO 14, ARC 79/2012 DATED 19.3.2013.
EXT.P-6: A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN IA
NO.36/2015 IN ARC 79/2012 DATED 21.8.2015.
EXT.P-7: A TRUE COPY OF THE ORDER DATED 8.10.2015 IN IA NO.36/2015 IN
ARC 79/2012.
EXT.P-8: A TRUE COPY OF THE PETITION ALONG WITH AFFIDAVIT FILED BY
RESPONDENTS 1 AND 2 IN ARC 79/2012 DATED 4.12.2015.
RESPONDENTS' EXHIBITS:
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EXT.R1(a): TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 7864/2015 (G) ON
THE FILE OF THIS COURT.
/True Copy/
P.A to Judge.
rv
DAMA SESHADRI NAIDU, J.
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W.P. (C) No. 2036 of 2016 (D)
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Dated this the 1st day of March, 2016.
JUDGMENT
The petitioner, a primary Co-operative society, a juristic person, as has been rightly contended by the learned counsel for the respondent, has been never affected by the impugned order in the first place. For whatever reason, it has chosen through its Secretary to challenge Ext.P7 order. As this Court is usually avers to non-suiting a party on a technicality, it has felt it desirable to entertain the writ petition. And it did entertain.
2. The facts in brief are that respondents 1 and 2 filed an Election Petition before the 16th respondent, the Co-operative Arbitration Court, assailing the election of respondents 5 to 14. In ARC No. 79 of 2012, respondents 1 and 2 filed I.A. No. 36 of 2015 for a direction to open the election records and examine the Secretary of the Bank with respect to its contents. The Arbitration Court eventually passed Ext.P7 order to the following effect:
"However, nothing preclude this Court to examine and verify the documents produced by the Counter Petitioner/Defendant as per the direction of the Court. It can also be examined and verified either directly by the Court itself W.P.(C.) No. 2036/2016 -2- or through any authorised person/expert in the presence of Counsel appearing on either side. Hence this application is allowed partially and the petitioner/plaintiff is directed to take steps to examine the election records produced by the Counter Petitioner/Defendant through an expert Commission. The prayer to summon the Secretary of the Counter Petitioner/Defendant bank to give evidence with regard to the contents of the election records is hereby declined."
3. Assailing Ext.P7 order, the petitioner society has filed the present writ petition.
4. This Court, on 19.01.2016, has issued the following interim direction:
"Prima facie, this Court is not persuaded by the contention of the learned counsel for the petitioner that the 16th respondent has no jurisdiction to issue Ext.P7 interim order. It is, however, of the opinion that the learned Arbitration Court ought to have, if it deemed appropriate, appointed an 'expert commission' by itself and entrusted the task of verifying the records in question.
In the facts and circumstances, there shall be an interim suspension of Ext.P7 for four weeks."
5. Having entered appearance, respondents 1 and 2 filed their counter affidavit seeking, among other things, the vacation of the interim order.
6. Sri. V.G. Arun, the learned counsel for the petitioner, has strenuously contended that Ext.P7 order expressly reveals that the Arbitration Court has allowed respondents 1 and 2 to have on their W.P.(C.) No. 2036/2016 -3- own an expert appointed, so that the said expert could look into the issue and submit a report to the Arbitration Court. According to him, it is impermissible.
7. The learned counsel has also submitted that Section 70 of the Kerala Co-operative Societies Act enumerates the powers of the Co-operative Arbitration Court. The said provision, especially sub- section 3 thereof, read in conjunction with Rule 67(5) of the Kerala Co-operative Societies Rules ('the Rules'), does not empower the Arbitration Court to appoint any so-called experts for the purpose of gathering evidence.
8. Touching upon the merits of the matter, the learned counsel has also contended that the scope of the ARC is extremely limited and Ext.P7 order goes beyond the purview of the dispute raised in the election petition.
9. The learned counsel for respondents 1 and 2, on the other hand, has submitted that the writ petition, in the first place, is not maintainable at the behest of the society, which is not an aggrieved prison. According to him, even the Secretary, who is the protagonist to the litigation before this Court, cannot be said to have been W.P.(C.) No. 2036/2016 -4- affected by any stretch of the term.
10. The learned counsel has also further contended that Ext.P7 order only mandates that the Arbitration Court would appoint an expert to inspect the records and submit an objective report for the consideration of the learned Arbitrator. According to him, Ext.P7 order is eminently sustainable.
11. The learned Government Pleader, on instructions, has submitted that the Arbitration Court has all along intended to appoint an independent expert to examine the issue and submit a report for its benefit. According to him, it was never the intention of the Arbitration Court that respondents 1 and 2 would be empowered to have on their own an expert to assist the Court.
12. Heard the learned counsel on both sides, apart from perusing the record.
13. At the outset, I make it clear that this Court has no intention of getting into the merits of the matter. On the other hand, it confines itself to the validity and legality of Ext.P7 order.
14. As has been adverted to above, on 19.01.2016, this Court prima facie observed that it was not persuaded by the petitioner's W.P.(C.) No. 2036/2016 -5- contention that the Arbitration Court has no jurisdiction to issue Ext.P7 interim order.
15. Indisputably, the Arbitration Court is the substitute to a Civil Court and also any other adjudicatory forum concerning the election disputes. It has, therefore, all the necessary trappings and powers of a Civil Court. Any restrictive interpretation of the provisions, especially Section 70 of the Act and Rule 67 of the Rules, would render the Arbitration Court an inferior Tribunal not having the powers of a Civil Court though it is statutorily supposed to be a substitute to a Civil Court. Thus, the legislature has not contemplated a situation where a person approaching a Civil Court could get a superior relief; but, on the other hand, the same person approaching an alternative forum would be entitled to an inferior relief. It is ex facie arbitrary. This Court cannot lend itself to any such interpretation.
16. In my considered view, both Section 70 of the Act and Rule 67 of the Rules ought to be expansively read. Further, since there is no express exclusion of the application of the Code of Civil Procedure, I am of the further opinion that in terms of Order 39 Rule 7, the W.P.(C.) No. 2036/2016 -6- learned Arbitrator is eminently empowered to exercise his powers for the appointment of an expert as he deems appropriate to rendere complete justice. It is sine qua non of any forum, be it quasi judicial or judicial.
17. Under these circumstances, I do not hesitate to hold Ext.P7 order to be valid and binding.
18. As has been rightly contended by the learned counsel for the petitioner, there is indeed an element of ambiguity in Ext.P7. In the first blush, it does indicate as if the Arbitration Court authorised the parties thereto to have on their own an expert appointed for the purpose mentioned in the application. Such course of action is undoubtedly impermissible. Nevertheless, the learned Government Pleader, on instructions, has clarified that the learned Arbitrator himself will appoint an expert to go into the issue and assist the Court. Thus, there shall be a quietus to the controversy as regards what is said to be an ambiguity in Ext.P7.
19. It is, however, made clear that once the expert to be appointed by the learned Arbitrator submits his/her report, it goes without saying that the parties aggrieved thereby shall have every W.P.(C.) No. 2036/2016 -7- right to put forward their contentions as regards the merits and demerits of the findings thereof.
20. Of the doubts expressed by the learned counsel for the petitioner, it is further made clear that as regards the manner, method and scope of execution by the said expert, both the parties are at liberty to file necessary applications before the learned Arbitrator.
The writ petition is disposed of as above.
sd/- DAMA SESHADRI NAIDU, JUDGE.
rv