W.P.No.23717 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.09.2022
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P.No.23717 of 2022
and WMP.Nos.22661 and 22663 of 2022
K.Ashokkumar ... Petitioner
Vs
1. The Deputy Registrar of Coop. Societies,
Mayiladuthurai Circle, Mayiladuthurai,
Mayiladuthurai District.
2. The Managing Director/Deputy Registrar,
Mayiladuthurai Consumer's Co-operative Wholesale
Stores Ltd., T.917,
No.5-B, Narayana Pillai Street,
Mayiladuthurai – 609 001.
Mayiladuthurai District.
3. The Cooperative Sub Registrar/Sale Officer,
Sembanar Koil (Incharge),
T.917, Mayiladuthurai Consumer's
cooperative Wholesale Stores Ltd.,
No.5-B, Narayana Pillai Street,
Mayiladuthurai – 609 001.
Mayiladuthurai District.
4. A.Mahalakshmi
... Respondents
1
https://www.mhc.tn.gov.in/judis
W.P.No.23717 of 2022
Prayer:Writ Petition filed under Article 226 of the Constitution of India, to issue
Writ of Certiorari calling for the entire records relating to the impugned Auction
Notice issued by the 3rd respondent dated 24.08.2022 published in Dinathanthi
Newspaper dated 25.08.2022 and quash the same.
For Petitioner : Mr.C.Prakasam
ORDER
This Writ Petition is not maintainable in view of the order passed by a learned single Judge of this Court on 15.03.2021 in W.P.No.5374 of 2021 assailing an identical cause of action that has been assailed in the present Writ Petition.
2. The facts of the case, recorded by the learned single Judge vide order dated 15.03.2021 at paragraphs 2 to 5, are as follows:
2. The case of the petitioner is that he is an Ex-Serviceman retired from Military Service in the year 2017 and he purchased a property in his name situated in Old S.No.89/8, New S.No.89/8A-1 of an extent of 2000 sqft with a small building at Raja Nagar, Parasalur, Sembanarkoil, Tharangambadi Taluk, Nagapattinam and the said property is now sought to be attached in Form No.6 on the allegations as against his wife Mahalakshmi.
3. The petitioner's wife Mahalakshmi, who was working in the second respond co-operative Wholesale Store is facing some allegations for misappropriation along with the President and Deputy 2 https://www.mhc.tn.gov.in/judis W.P.No.23717 of 2022 Registrar of the Society and a Section 81 enquiry was conducted as against the petitioner’s wife Mahalakshmi and others and after enquiry, surcharge proceedings also has been initiated.
4. The case of the second respondent is that the petitioner's wife Mahalakshmi misappropriated along with others during the period from 1.4.2011 to 27.1.2014 to an extent of Rs.40,95,832/-.
5. Mr.Bala Ramesh, learned Special Government Pleader assisted by Mr.G.B.Rajesh. learned Government Advocate appearing for the respondents would submit that the petitioner claimed to have purchased the property in the year 2006 and the building has been constructed in the said land only during the relevant period viz., from 2011 to 2014 from the funds which have been misappropriated from the Society. He also pointed out the earlier orders passed by this court in W.P.No.17538 of 2020, in a similar case, following the orders of a Division Bench of this court.
3. Thereafter, the learned single Judge, after referring to an order passed in W.P.No.17538 of 2022 relegated the petitioner to appeal before the Cooperative Tribunal as per Section 152 of the Act. In doing so, he has also relied upon the judgment of the Division Bench of this Court in A.Balaraman & 3 others V. The Deputy Registrar of Cooperative Societies, Chyyar and 2 others (2009-1-LW
681).
4. In both the cases as aforesaid, the learned single Judge and the Division Bench respectively have held that as against the order of attachment, a person has a right of appeal before the Cooperative Tribunal as per Section 152 of the Act.
Inter alia, the Tribunal has powers to consider prayers for interim protection and 3 https://www.mhc.tn.gov.in/judis W.P.No.23717 of 2022 thus, it is open to any aggrieved person to not just challenge the order of attachment, but seek interim relief as well. As against order dated 15.03.2021, the petitioner has filed Writ Appeal in W.A.No.2118 of 2021.
5. The present Writ Petition is on identical factual premise except that he challenges the subsequent auction notice dated 24.08.2022. The Writ Petition has been presented only on 29.08.2022 after the date of auction and even for that reason is infructuous, even as on the date when it was filed.
6. Be that as it may, seeing as the identical cause of action that arises in this case, barring the date of auction, has already been decided by this Court in the same petitioner's case on the anvil of the identical facts, by order dated 15.03.2021, which has been taken in appeal in W.A.No.2118 of 2021, I am of the considered and categoric view that this Writ Petition is not maintainable. The petitioner cannot be permitted to agitate the same set of facts repeatedly, particularly when the same issue is stated to be pending resolution before the Division Bench.
7. In view of the above circumstances and recording the same, this Writ Petition is dismissed. Connected Miscellaneous Petitions are also dismissed.
4
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W.P.No.23717 of 2022
sl 12.09.2022
Index : Yes/No
Speaking Order
Note: Registry is directed to issue a copy of this order on or before 14.09.2022.
To
1. The Deputy Registrar of Coop. Societies, Mayiladuthurai Circle, Mayiladuthurai, Mayiladuthurai District.
2. The Managing Director/Deputy Registrar, Mayiladuthurai Consumer's Co-operative Wholesale Stores Ltd., T.917, No.5-B, Narayana Pillai Street, Mayiladuthurai – 609 001.
Mayiladuthurai District.
3. The Cooperative Sub Registrar/Sale Officer, Sembanar Koil (Incharge), T.917, Mayiladuthurai Consumer's cooperative Wholesale Stores Ltd., No.5-B, Narayana Pillai Street, Mayiladuthurai – 609 001.
Mayiladuthurai District.
Dr.ANITA SUMANTH,J.
5https://www.mhc.tn.gov.in/judis W.P.No.23717 of 2022 Sl W.P.No.23717 of 2022 and WMP.Nos.22661 and 22663 of 2022 12.09.2022 6 https://www.mhc.tn.gov.in/judis