Raveendran.V.G vs N.Bharatha Karnavar
2021 Latest Caselaw 12808 Ker

                        C.T.RAVIKUMAR &
                         N.NAGARESH, JJ.
             ---------------------------------------------
                          I.A.No.1 of 2019
                                   in
               Unnumbered Writ Appeal of 2019
                     (Filing No.34543/2019)
             ----------------------------------------------
                        Dated 9th June, 2021

                                ORDER

Ravikumar, J.

The above numbered Interlocutory Application is filed by

third parties to W.P.(C) No.7359 of 2019 seeking leave to file appeal

against the judgment passed thereon. The said writ petition was filed

by the first respondent in the I.A. who made Fixed Deposit of his retiral

benefits with Mavelikkara Taluk Co-operative Bank Ltd., No.707, the 6 th

respondent in the I.A. Since his request for releasing the amount

remaining in fixed deposit, despite its maturity, remain unheaded he

approached this Court by filing W.P.(C)No.27503 of 2017. In fact,

before approaching this Court he approached the 4 th respondent herein

viz., the Joint Registrar, complaining of non-release of the amount

remaining in fixed deposit despite maturity. Thereupon, the Joint

Registrar passed an order dated 10.8.2017 directing the Bank to take

steps for releasing the amount in fixed deposit to the first respondent

herein. In fact, it was directed to release the entire amount deposited.

After hearing the respondents, including the 6 th respondent Bank herein

W.P.(C)No.27503 of 2017 was disposed of as per Ext.P2 judgment

Unnumbered Writ Appeal of 2019 (Filing No.34543/2019)

directing the 6th respondent - Bank to release an amount of

Rs.2,00,000/- to the petitioner on or before 2.9.2017 and consider

Ext.P2 representation, referred as such in that writ petition, within two

weeks thereafter. Furthermore, it was held:-

"If there are no other legal impediments standing in the way, the amount shall be released to the petitioner with accrued interest without any delay at all."

2. The 6th respondent - Bank, which was the 5 th respondent

therein, preferred W.A.No.128/2018 against Ext.P2 judgment and this

Court disposed of the said appeal as per Ext.P4 judgment. The Division

Bench modified the judgment and directed the Joint Registrar to

consider the representation filed by the first respondent herein to give

effect to the said order dated 10.8.2017, marked as Ext.P3 in W.P.

(C)No.27503 of 2017 passed by him after notice to the depositor and

the Bank within the time stipulated thereunder. In terms of the

directions in Ext.P4 judgment the first respondent herein was called

upon for a hearing by the 4 th respondent herein. Thereupon, he passed

Ext.P5 order with a direction to the 5th respondent - the part-time

Administrator of the 6th respondent Bank to release the amount

remaining in fixed deposit to the first respondent within one month.

Despite Ext.P5 order the amount in deposit with interest was not

released to him. It was in the said circumstances that he filed the said

Unnumbered Writ Appeal of 2019 (Filing No.34543/2019)

writ petition seeking the following prayers:-

"(i) To issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 4 and 5 to pay the amounts covered by Ext.P1 Cumulative Deposit Receipt No.018150 with upto date interest to the petitioner forthwith.

(ii) To issue a writ of mandamus or other appropriate writ, order or direction directing the official respondents to take effective action against respondents 4 and 5 for non-payment of the deposit amount."

The impugned Judgment would reveal that the learned counsel

appearing for the 5th respondent-Administrator-in-charge of the 6 th

respondent Bank herein submitted before the learned Single Judge that

the claim of the writ petitioner/the first respondent herein is not

disputed and at the same time the Bank is incapacitated from making

payment on account of various constraining financial factors;

particularly because the loans granted by the Bank to others have not

been able to be recovered on account of the moratorium declared by

the Government of Kerala. Furthermore it was submitted that all ernest

attempts would be made by the Part-time Administrator to disburse the

amount to the petitioner, at least in instalments, taking note of the age

of the writ petitioner. Taking note of the said submission as also the

entire circumstances the learned Single Judge ordered the writ petition

by directing the Part-time Administrator to pay the entire dues to the

Unnumbered Writ Appeal of 2019 (Filing No.34543/2019)

first respondent/the writ petitioner in not more than four instalments,

commencing from 15.4.2019.

3. It is stated in the affidavit accompanying the above I.A.

that in the circumstances the petitioners in the I.A. preferred

representation to the Joint Registrar of Co-operative Societies, Alleppey

and Administrator of the Bank requesting them to pass necessary

orders for keeping in abeyance disbursement/refund of deposit and

other debts due to various creditors of the Bank except payment of

small amounts in day to day transactions until realisation of the debt by

way of surcharge proceedings under Section 68 of the Act from the

delinquent members of the Board of Directors and the delinquent

officers of the Bank or until newly elected Board of Directors of the

Bank takes charge and realises fund due to the Bank for distributing

among the creditors rateably. They would contend that the learned

Single Judge without noticing the question of discrimination of creditors

in the matter of refund of fixed deposits/payment of debts due to them

from the Bank allowed the writ petition by directing payment of the

amount and in such circumstances, non-interference with the judgment

would result in gross injustice to majority of the creditors of the Bank.

It is raising such grounds that they seek leave to prefer appeal against

the judgment dated 26.3.2019 in W.P.(C) No. 7359 of 2019.

Unnumbered Writ Appeal of 2019 (Filing No.34543/2019)

4. In the contextual situation, it is relevant to note that

earlier, the 5th and 6th respondents in the above I.A., who were 4 th and

5th respondents in W.P.(C)No.7359 of 2019, filed W.A. No.1472/2019

against the judgment dated 26.3.2019 passed thereon. In the said

appeal the pleadings of the appellants revealing absence of any dispute

with respect to the factum of the said deposit with the Bank as also the

obligation and liability to pay the amount along with itnerest at the

assured rate and also forming the opinion that the direction of the

learned Single Judge could not be said to be against any provision or

any settled position of law or that it is perverse the judgment under

appeal was confirmed. We have also taken note of the fact that the

learned Single Judge had virtually permitted the appellants therein to

repay the amount deposited by the first respondent for a fixed term in

four monthly instalments commencing from 15.4.2019 and declined to

interfere with the impugned judgment. In short, the said writ appeal

filed against the judgment sought to be appealed with leave, was

dismissed. In the said circumstances and taking note of the admitted

position that the Bank in question is still functioning and transacting

business we do not find any reason to think that any fruitful purpose

would be or could be served by granting leave to the petitioners herein

to challenge the judgment passed in W.P.(C)No.7359 of 2019.

Unnumbered Writ Appeal of 2019 (Filing No.34543/2019)

5. As noticed hereinbefore, the petitioners herein were not

parties to W.P.(C)No.7359 of 2019. It is true that the statements in the

affidavit accompanying the above I.A. would reveal that the petitioners

in the above I.A. have also made fixed deposits with the 6 th respondent

Bank. However, that cannot be a reason for them to contend that the

learned Single Judge ought not to have entertained W.P.(C)No7359 of

2019 and passed the impugned judgment in favour of the writ

petitioner, especially after considering the stand of respondent Nos.4

and 5 therein against whom direction was fought for. We are at a loss

to understand as to how the petitioners herein are aggrieved by the

impugned judgment. We do not find any reason for them to feel

aggrieved by the judgment sought to be challenged. If they have also

made fixed deposits with the said bank it is for them to work out their

remedies to get back their money, in accordance with law. From the

indisputable position that the 5th and 6th respondents in the above I.A.

Who were respondent Nos.4 and 5 in W.P.(C)No.7359/2019, have

challenged the judgment in question unsuccessfully and the tenor of the

pleadings of the petitioners in paragraphs 2 and 3 of the above I.A. we

are inclined to think that the attempt of the petitioners in the captioned

I.A. is to conduct a proxy war on behalf of the 5 th and 6th respondents

herein who have already lost the battle.

Unnumbered Writ Appeal of 2019 (Filing No.34543/2019)

6. When once it is found from the aforesaid circumstances

that no fruitful purpose would be served by granting the petitioners in

the I.A. leave to prefer an appeal against the aforesaid judgment and

further that the said judgment in no way cause any impediment for

them to take recourse to legal remedies to get the money which they

have deposited with the 6th respondent bank we think that it is a

befitting case where we should decline leave to the petitioners herein to

prefer appeal against the judgment dated 26.3.2019 in W.P.(C)No.

7359 of 2019. Accordingly, we decline to grant leave to the petitioners

in the above I.A. to prefer appeal against the judgment in W.P.(C)

No.7359 of 2019. In the circumstances, the above Interlocutory

Application stands dismissed, of course, without prejudice to the right

of the petitioners to work out their remedy to get back money, if

deposited with the 6th respondent - Bank, in accordance with law.

Sd/-

C.T.RAVIKUMAR Judge

Sd/-

N.NAGARESH Judge

TKS