Madras High Court
N. Sumitra vs Deputy Registrar Of Cooperative ... on 20 November, 2006
Equivalent citations: (2007)1MLJ832
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. Challenging the Order of attachment under Section 167 of the Tamil Nadu Cooperative Societies Act [dated 20.10.2006], the Petitioner has filed this Writ Petition.
2. Brief facts are as follows :- Petitioner's husband Balachandran while working as Salesman at the second Respondent Cooperative Stores has caused deficiency to the assets of the second Respondent Cooperative Stores to the tune of Rs. 2,54,896.96. Balachandran died on 22.07.2000 by committing suicide. To recover the deficit amount, the second Respondent has issued Notice to the Petitioner [24.07.2000] to make good the stock deficit amount to the second Respondent. By the said Notice dated 24.07.2000, details of stock deficit was also furnished. Since no amount was paid, the second Respondent had preferred arbitration claim before the 1st Respondent in accordance with Section 167 of the Tamil Nadu Cooperative Societies Act, 1983 [in short, the Act]. The first Respondent has issued the Notice dated 25.09.2000, calling upon the Petitioner - legal heir of deceased Balachandran to furnish security for the said sum of Rs. 2,54,896.96 being stock deficit. Since the Petitioner has not furnished security, on being satisfied, the first Respondent had passed the impugned order of conditional attachment.
3. Assailing the impugned order, the learned Counsel for the Petitioner has contended that the impugned order is vitiated for want of satisfaction of the requirements under Section 167 of the Act. The learned Counsel interalia raised three fold contentions:
The second Respondent Deputy Registrar has no powers to pass orders of attachment;
The impugned order is vitiated, for it is a non speaking Order. Authorities are expected to furnish reasoning and the impugned order does not satisfy the requirements under Section 167 of the Act;
The reasoning/grounds stated in counter claim cannot supplement the impugned order, which is otherwise lacking reasoning.
4. The learned Government Advocate has submitted that as contemplated under Section 167 of the Act, notice was issued to the Petitioner on 25.09.2000, calling upon her to furnish security and only when she has failed to furnish security, the second Respondent after satisfying himself of the intention of the Petitioner to defeat or delay the execution of the Order, has passed the Order of attachment and the same is well in accordance with Section 167 of the Act. To substantiate her contention, the learned Government Advocate has also produced the relevant file.
5. I have carefully considered the submissions and also the file produced by the Respondents.
6. The first contention that the Deputy Registrar of Cooperative Societies has no powers to pass the Order of attachment has no merits. No doubt under Section 167 of the Act, powers have been conferred upon the Registrar to pass Order of attachment as per G.O.Ms. No. 269 dated 08.06.1988, Tamil Nadu Gazette P-I II Section 2, dated 22.6.1988. The said Government Order reads that all powers of the Registrar of Cooperative Societies are conferred upon Deputy Registrar of Cooperative Societies under the Tamil Nadu Cooperative Societies Act, 1983, excepting those referred to in Sections 12, 14, 18, 33(4), 33(7), 35, 36, 68, 69, 75, 76, 77, 88, 89, 91, 105, 115, 137(1), 152(2), 153, 173, 178 and 181. Therefore, the Petitioner's contention that the first Respondent has no authority to Order conditional attachment does not merit acceptance.
7. Section 167 of the Act deals with furnishing of Security and attachment. Section 167 of the Act reads as under:
167. Furnishing of security and attachment of property - (1)Where the Registrar is satisfied on the application of a registered society in respect of a reference made to him under Sub-section (1) of Section 90 or on the application of a liquidator appointed under Section 138 in respect of the proceedings of such liquidator for determining the contribution to be made by a person to the assets of the society under Clause (b) of Sub-section (2) of Section 139 or on the application of the board or liquidator or any creditor to the society or otherwise in respect of any inquiry ordered into the conduct of any person under Section 87 that any party to the reference or the person, as the case may be, is about to dispose of or remove from the local limits of the jurisdiction of the Registrar, the whole or any part of his property with intent to defeat or delay the execution of any decision that may be passed on the reference or of any Order that may be passed against him by the liquidator or the Registrar, as the case may be, the Registrar may, by Order direct the party or the person, to furnish security in such sum and within such time as may be specified in such Order and to produce and place at the disposal of the Registrar when required, the said property or such part thereof as may be sufficient for the execution of any decision or Order aforesaid.
(2)The Registrar may also in the order made under Sub-section (1), or by a separate Order, direct the conditional attachment of the said property or such part thereof and such attachment shall have the same effect as if it had been made by a competent civil Court.
8. Drawing the attention of the court to Section 167 of the Act, the learned Counsel for the Petitioner has submitted that Section 167 of the Act is akin to Order.38 Rule.5 CPC - Attachment Before Judgment and unless the Deputy Registrar is satisfied as to the essential requirements under the Section, the Deputy Registrar cannot pass the conditional Order of attachment. The main contention urged was that no such satisfaction or reasoning was recorded in the order that the Petitioner is likely to dispose of or remove, whole or any part of the property, from the local limits of the jurisdiction with intention to delay or defeat the lawful execution.
9. The contention that the impugned order is a non-speaking Order has no force. The impugned order of conditional attachment does not stand in isolation. The conditional Order of attachment refers to the earlier notice issued to the Petitioner calling upon her to furnish security. Hence the impugned Notice is to be read with C.E.P. No. 115/99-2000 dated 20.10.2000, which was issued to the Petitioner calling upon her to furnish security. The said Notice dated 20.10.2000 reads as under:
WHEREAS the Udagamandalam Cooperative Stores, Ltd.No.K.505 Plaintiff in the claim has applied to me to call upon TMT. N. SUMITHRA the Defendant to furnish security of fulfill any contribution Order that may be passed against her in this claim in favour of the Special Officer for Rs. 2,54,896.96 [Rupees Two Lakhs Fifty Four Thousand Eight Hundred and Ninety Six and Paise Ninety Six only] and whereas the said defaulter who was called upon to furnish such security has failed to do so. It is ordered that you the said Defendant be and you are hereby prohibited and restrained until further orders from transferring or changing the property specified in the schedule hereinto annexed by sale, fight or otherwise, and that al persons be and that they are hereby prohibited from receiving the same by purchase, fight or otherwise.
10. By a reading of the above Notice it is seen that the first Respondent has satisfied himself that the Petitioner has intention to defeat or delay the execution of any Order that may be passed against her and that she is likely to dispose of or remove from the local limits of the whole or any of the property. After the impugned order of conditional attachment was passed, it was also published in the news papers on 27.10.2000. It is to be noted that the Petitioner has not approached the Court immediately after the conditional Order of attachment was passed.
11. As against the Order passed under Section 167 of the Act, there is appeal provision under Section 151 of the Act. Without exhausting the appeal remedy available under Section 151 of the Act, the Petitioner has filed this Writ Petition. The learned Counsel for the Petitioner has submitted that the Petitioner has filed the Writ Petition mainly because no opportunity was afforded to the Petitioner before passing the impugned Order. Referring to the file, the learned Government Advocate has submitted that the notice was duly served upon the Petitioner calling upon her to furnish security and prior to that, Notice was issued to her on 24.07.2000, furnishing details of stock deficit. The contention of the Petitioner that at the time of issuance of Notice dated 24.07.2000, the Petitioner was mourning and that the same cannot be considered as valid service of notice has no force.
12. Drawing the attention of the court to the file, the learned Government Advocate has submitted that the Petitioner has attended the hearings on various dates in the arbitration proceedings before the first Respondent and at one stage, the Petitioner has even stated that she would withdraw the Writ Petition. The learned Counsel for the Petitioner has raised strong objection for looking into the file and submitted that those details are not reflected in the counter.
13. It was further submitted that the Order passed on certain grounds and its validity must be judged only on the impugned order and the same cannot be supplemented either by the counter or by producing file. Contending that the orders of the Statutory Authority cannot be considered in the light of the explanations subsequently given by the officer, the learned Counsel for the Petitioner has placed reliance upon Commissioner of Police, Bombay v. Gordhandas Bhani. In the said decision, it has been held as follows:
An attempt was made by referring to the Commissioner's affidavit to show that this was really an Order of cancellation made by him and that the Order was his Order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the Order of what he meant, or of what was in his mind, or what he intended to do. Public Order made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the Order itself.
10. Turning now to the language used we are clear that by no stretch of imagination can this be construed to be an Order which in effect says - "I, so and so, by virtue of the authority vested in me, do hereby Order and direct this and that". If the Commissioner of Police had the power to cancel the license already granted and was the proper authority to make the Order, it was incumbent on him to say so in express and direct terms. Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the Order.
14. Referring to the above decision, in , Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. the Supreme Court has held:
8.The second equally relevant matter is that when a statutory functionary makes an Order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an Order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji AIR 1952 SC 16.Orders are not like old wine becoming better as they grow older.
15. We must at the outset point out that the above decision have no relevance to the case on hand. As noted earlier, Order of conditional attachment does not stand in isolation, but is supplemented by the earlier Notice dated 25.09.2000, wherein the satisfaction of the first Respondent has been clearly stated. The impugned order refers to the earlier Notice dated 25.09.2000. The impugned order is well in accordance with Section 167 of the Act. The impugned order of conditional attachment does not suffer from any violation of the provisions of the Act.
16. In the result, the Writ Petition is dismissed. No costs.