IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
Wednesday, the 8th day of June 2022 / 18th Jyaishta, 1944
WA NO. 614 OF 2022
AGAINST JUDGMENT DATED 23.02.2022 IN WP(C) 3624/2022 OF THIS COURT
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APPELLANTS/RESPONDENTS NOS.4,5 & 6:
1. THE MAVELIKKARA TALUK CO-OPERATIVE BANK LTD. NO.707, HAVING ITS HEAD
OFFICE AT PULIMOOD JUNCTION, MAVELIKKARA P.O., ALAPPUZHA 690 101.,
REPRESENTED BY ITS SECRETARY.
2. THE MAVELIKKARA TALUK CO-OPERATIVE BANK LTD. NO.707, THAZHAKKARA
BRANCH THAZHAKKARA P.O., MAVELIKKARA, ALAPPUZHA - 690 101.,
REPRESENTED BY ITS SECRETARY.
3. THE SECRETARY, THE MAVELIKKARA TALUK CO-OPERATIVE BANK LTD. NO.707,
THAZHAKKARA BRANCH, THAZHAKKARA P.O., MAVELIKKARA, ALAPPUZHA -
690101.
BY ADVS.M/S.B.ASHOK SHENOY,P.S.GIREESH & ARJUN R.NAIK
RESPONDENTS/PETITIONER & RESPONDENTS NOS.1 TO 3 & 7 TO 9:
1. RAJESWARI S.KUMAR, AGED 52 YEARS , WIFE OF SIVAKUMAR,ASWATHY
BHAVANAM, CHERUKOLE P.O., MAVELIKKARA, ALAPPUZHA DISTRICT - 690 104.
2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, JAWAHAR SAHAKARANA BHAVAN,
DPI JUNCTIONM THYCAUD P.O., THIRUVANANTHAPURAM - 695 014.
3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) ,OFFICE OF
THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ALAPPUZHA- 688001.
4. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) ,OFFICE
OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, MINI CIVIL
STATION 2ND FLOOR, MAVELIKKARA, ALAPPUZHA- 690101.
5. THE SPECIAL SALE OFFICER, ARBITRATION AND EXECUTION, ASSISTANT
REGISTRAR OFFICE, MAVELIKKARA, ALAPPUZHA - 690101.
6. RESHMA KRISHNAN ,AGE AND FATHER'S NAME NOT KNOWN TO THE
APPELLANTS,PUTHIYA VEETIL,PUTHEN KOTTAKAKAM,CHENNITHALA,NOW RESIDING
AT VIJAYA SADANAM, CHERIYANAD, KOLLAKADAVU, ALAPPUZHA - 690509.
7. VISHNU V.S.,AGE AND FATHER'S NAME NOT KNOWN TO THE APPELLANTS,
RESIDING AT VIJAYA SADANAM, CHERIYANAD, KOLLAKADAVU, ALAPPUZHA -
690509.
P.T.O.
BY ADV.SRI.M.V.THAMPAN FOR R1
SENIOR GOVERNMENT PLEADER SRI.T.K.VIPIN DAS FOR R2 TO R5
ADV.SMT.SWAPNA VIJAYAN FOR R6 & R7
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation of the judgment dated 23.2.2022 in W.P.(C) NO.3624
of 2022 on the file of this Hon'ble Court and all further proceedings
thereunder, pending disposal of this Writ Appeal.
This Writ Appeal coming on for orders on 08/06/2022 upon perusing
the appeal memorandum, the court on the same day passed the following:
P.T.O.
EXT.P1: TRUE COPY OF THE ATTACHMENT POLICE IN EP NO.208/2018 DATED
12.01.2022
EXT.P4:TRUE COPY OF THE JOINT FIXED DEPOSIT RECEIPT IN THE
JOINT NAME OF RESPONDENTS 8 AND 9 DATED 01.10.2018.
EXT.P5:TRUE COPY OF THE FIXED DEPOSIT RECEIPT DATED 03.10.2018
LYING IN THE NAME OF THE 8TH RESPONDENT.
ANNEXURE A2:TRUE COPY OF THE DRAFT PACKAGE SCHEME SUBMITTED
BY 1ST APPELLANT TO JOINT REGISTRAR OF COOPERATIVE SOCIETIES,
ALAPPUZHA, DATED NIL.
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ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.
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WA No. 614 of 2022
[arising out of the impugned judgment dated 23.02.2022
in WP(C) No.3624/2022]
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Dated this the 8th day of June, 2022
ORDER
Notice before admission for contesting 1st respondent has been taken by Sri.M.V.Thampan, learned counsel, and notices before admission for contesting respondents 6 & 7 have been taken by Smt.Swapna Vijayan, learned counsel. Notices before admission for official respondents 2 to 5 have been taken by Sri.T.K.Vipin Das, learned Senior Government Pleader.
2. The Registry will show the name of the above said Advocates in the cause list.
3. Service complete.
4. Sri.Ashok B Shenoy, learned counsel appearing for the appellants/respondents 4, 5 & 6 in the writ petition (the Mavelikkara Taluk Co-operative Bank Ltd.), submits that it is, by now, well established that the 1st appellant bank will not fulfill the definition of the "Other Authorities" within the meaning of Article 12 of the Constitution of India. Further that, the action of the 1st appellant bank regarding non WA No. 614 of 2022 2 adjustment of fixed deposits and savings bank accounts held by respondents 6 & 7 herein towards the loan dues of the writ petitioner (1 st respondent herein) with the 1st appellant bank, which is the subject matter of the complaint in the writ proceedings, cannot be amenable to the public law remedy conceived as per Article 226 of the Constitution of India.
5. It is urged that this is so, as neither a public duty nor a positive obligation of a public nature is imposed on the 1 st appellant bank in relation to dealing with the aspects mentioned above, which are purely within the realm of banking transactions. Further, the writ petitioner has no case that any of the mandatory statutory provisions has been contravened by the 1st appellant bank in the impugned action of non adjustment of the fixed deposits and savings bank accounts of respondents 6 & 7, which are the loan dues of the writ petitioner. Hence, it is strongly urged that none of the prayers in the instant proceedings is maintainable in terms of Article 226 of the Constitution of India.
6. Secondly, it is urged that the writ petitioner has not availed or exhausted the alternate remedy available to her before the 5 th respondent herein/the Special Sale Officer, before whom the execution proceedings pursuant to Ext.P1 attachment notice was issued. Further WA No. 614 of 2022 3 that, the very genuineness of Exts.P4 & P5 fixed deposits stated to be held by respondents 6 & 7 is doubted and the same are under verification at the hands of the Co-operative Department. Further that, a large scale misappropriation of the fixed deposits held in the 1 st appellant bank was detected, which led to series of enquiries and investigations and that, criminal proceedings have also been initiated, which is the subject matter of a criminal investigation conducted by the Crime Branch CID of the Police Department and the matter is said to be pending investigation. Further that, when the very genuineness of Exts.P4 and P5 fixed deposits cannot be vouched by the 1 st appellant bank until the above said exercise is complete and when the genuineness could be settled only after due examination of the facts, circumstances and evidence in a trial or full fledged adjudication, it was not right and proper for the learned Single Judge to issue the directions, as per the impugned judgment in the WP(C), to grant the plea of the writ petitioner for adjustment of the fixed deposits and the savings bank accounts of respondents 6 & 7, which are the loan dues of the writ petitioner. Further, it is also urged that going by a reading of Ext.P5, fixed deposit it can be seen that the same is not repayable for five years from 03.10.2018, i.e., until 03.10.2023.
WA No. 614 of 2022 4
7. To supplement the above said contentions, it has also been urged before us by Sri.Ashok B Shenoy, learned counsel appearing for the appellants, that the prayers in the writ proceedings essentially would amount to the private dealings of banking between private individuals and also between the customers of a bank and the bank, and those are all matters, which would essentially and substantially fall within the domain of private law transactions, and cannot be said to be even having any penumbral effect on the public law remedy. Further that, the directions in the impugned judgment would create a precedent enabling similar transactions between the depositors and the debtors of the 1 st appellant bank and invariably, many debtors or loan defaulters of the 1 st appellant bank would come to the 1 st appellant bank seeking similar reliefs, which will lead to a situation, where the appellants would be left with no amounts for disbursal to several of its depositors, to whom repayment of deposits is pending. In that regard, learned counsel for the appellants would invite us to the contents of Annex.A2, more particularly, internal page No.2 thereof (See page No.60 of the paper book of this appeal), which would disclose that the total outstanding deposit amounts to be paid by the 1st appellant bank to various depositors would come to more than Rs.117.15 crores, whereas the loan WA No. 614 of 2022 5 amounts due to the 1st appellant bank is only Rs.35.10 crores. That, when the overall liability of the 1st appellant bank to repay the deposits is more than Rs.117.15 crores as on the date of issuance of Annex.A2 proceedings and when the loan amounts due to the 1 st appellant bank is only Rs.35.10 crores, the above said directions of the learned Single Judge in the impugned judgment would create a precedent, which lead to the situation that virtually no amounts for disbursal to several depositors, to whom repayment is pending, and this would accelerate the financial crisis already being faced by the 1st appellant bank since 2017.
8. After hearing both sides, we are of the view that the 1st appellant bank has made out a strong prima facie case in the matter and the balance of convenience is also in favour of the 1 st appellant bank. The plea of interim stay is opposed by Sri.M.V.Thampan, learned counsel appearing for contesting 1st respondent herein/writ petitioner. We feel that the rights and interests on both sides could be adequately taken care of, if it is ordered that the enforcement of the impugned judgment in contempt proceedings is deferred. Accordingly, it is ordered that the enforcement of the impugned judgment dated 23.02.2022 rendered by the learned Single Judge in WP(C) No.3624/2022, by initiation of contempt proceedings, will stand deferred.
WA No. 614 of 2022 6
9. Sri.Ashok B Shenoy, learned counsel appearing for the appellants, seeks short time to file additional comprehensive affidavit dealing with the factual aspects relating to the detection of large scale irregularities and manipulation of the fixed deposits, the registration of crime, the pendency of criminal proceedings and various other proceedings and also to deal with the facts and figures mentioned in Annex.A2.
10. We are told that the criminal proceedings are now pending investigation at the hands of Crime Branch CID, Alappuzha, as Crime No.58/CB/ALP/17. The competent Police Investigation Authorities/ Crime Branch will ensure that they give written instructions to the learned Senior Government Pleader detailing out the salient aspects in the above proceedings, especially, relating to the alleged irregularities and manipulation of the fixed deposit accounts in the appellant bank, the scale of fixed deposit amounts involved in the alleged crime and also the stage of the investigation.
11. The Secretary to the Office of the Advocate General will forward a copy of this order to the Additional Director General of Police (Crimes), who is the Head of the State Crime Branch, for necessary information and compliance.
WA No. 614 of 2022 7
12. The appellant Bank may file additional affidavit on or before 20.06.2022.
List this case on 28.06.2022.
Hand Over sd/-
ALEXANDER THOMAS JUDGE sd/-
SHOBA ANNAMMA EAPEN JUDGE bka/-
08-06-2022 /True Copy/ Assistant Registrar