Kerala High Court
P.C.Babu vs *The Perinthalmanna Taluk Rural ... on 2 December, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
WP(C) NO. 23951 OF 2010
PETITIONER:
P.C.BABU, S/O.CHITHAMPARA PILLAI,
PANGAPATTU HOUSE, MELATTOOR.P.O., PERINTHALMANNA,
MALAPPURAM DISTRICT.
BY ADV SRI.R.RAJESH KORMATH
RESPONDENTS:
1 *THE PERINTHALMANNA TALUK RURAL HOUSING
CO-OPERATIVE SOCIETY LIMITED NO.M 270, REPRESENTED BY
ITS SECRETARY, PERINTHALMANNA.P.O., MALAPPURAM
DISTRICT. (ADDRESS CORRECTED)
(* THE DESCRIPTION OF THE FIRST RESPONDENT AFTER THE
WORDS "REPRESENTED BY" IS CORRECTED AND SUBSTITUTED AS
"THE ADMINISTRATOR, MELATTUR UNIT INSPECTOR, OFFICE OF
THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL), PERINTHALMANNA, MALAPPURAM DISTRICT".
AS PER ORDER DTD.28.7.21 IN IA.1/17 (IA.541/17) IN
WP(C) 23951/10.)
(ADDRESS CORRECTED)
(**THE WORD "ADMINISTRATOR" OCCURING IN THE CORRECTED
ADDRESS OF R1 IS CORRECTED AND SUBSTITUTED AS
"LIQUIDATOR" AS PER ORDER DATED 11/08/2021 IN IA.1/21
IN WP(C) 23951/2010.)
2 V.MOIDEENKUTTY, S/O.KUTTY MOIDEEN
VAGERITHODI HOUSE, KULATHOOR.P.O., PERINTHALMANNA
TALUK, MALAPPURAM DISTRICT, PIN-679 338.
3 THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES, CIVIL STATION.P.O., MALAPPURAM.
4 THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES (GENERAL), PERINTHALMANNA.P.O.,
WP(C) NO. 23951 OF 2010
2
MALAPPURAM DISTRICT.
BY ADVS.
SRI.K.M.FAISAL, GOVERNMENT PLEADER
K.M.SATHYANATHA MENON
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 02.12.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 23951 OF 2010
3
P.V.KUNHIKRISHNAN, J.
------------------------------
W.P.(C).No. 23951 of 2010
----------------------------------------------
Dated this the 02nd day of December, 2022
JUDGMENT
The above Writ Petition is filed with the following
prayers:
"(i) Issue a writ of certiorari or any other
appropriate Writ, Direction or Order quashing
Exhibits P7 and P9.
(ii) Declare that no amounts are due from
the petitioner to the first respondent- society.
(iii) Issue any other appropriate Writ,
Direction or Order as may be deemed fit and
proper in the facts and circumstances of the
case."[SIC]
2. The petitioner who was a member of the
first respondent- society had availed a housing loan
for an amount of `40,000/- from the first respondent
society in the year 1986. It is the definite case of the
petitioner that, at the time of availing the loan, the
WP(C) NO. 23951 OF 2010
petitioner was neither asked to execute any mortgage
bond nor had the petitioner executed any mortgage
bond. It is also the definite case of the petitioner that
the petitioner had remitted amounts towards the said
loan till the year 2000. The first respondent filed
A.R.C. No. 110/1999 before the Joint Registrar of Co-
operative Societies (General), Malappuram, for
realisation of an amount of `81,202.50/-, claiming
that the said amount is due to the first respondent -
society towards the loan availed by the petitioner.
After the filing of A.R.C No.110/1999 by the first
respondent, the petitioner cleared the entire loan
amount. Subsequently as per Ext.P2 order,
A.R.C.No.110/1999 was dismissed by the Joint
Registrar with a finding that the authenticated copy of
the mortgage bond was not produced. It is also found
that the petitioner has not signed in the mortgage
bond. The Society challenged Ext.P2 order by filing
WP(C) NO. 23951 OF 2010
Ext.P3 appeal. As per Ext.P4 order, the Tribunal
clearly found that there is nothing to interfere with
Ext.P2 order. But, since both parties prays for a
remand, the matter was remanded. Thereafter, it is
the case of the petitioner that another A.R.C. as
A.R.C.No.1363/2001-02 was filed before the Assistant
Registrar of Co-operative Societies, Perinthalmanna
for realisation of an amount of `89,502.70/-. It is the
definite case of the petitioner in the Writ petition that
the same is also dismissed. The above A.R.C was also
with respect to the very same transaction which leads
to Ext.P2. It is also the case of the petitioner that
after Ext.P4 remand order, the Society again filed
A.R.C.No.221/2005 for the same loan transaction.
A.R.C.No.221/2005 was allowed as per Ext.P7.
Ext.P7 was challenged before the Tribunal by filing a
revision as evident by Ext.P8. The same was allowed
in part after reducing the interest rate. Ext.P9 is the
WP(C) NO. 23951 OF 2010
order. Aggrieved by Exts.P7 and P9, this writ petition
is filed.
3. Heard counsel appearing for the petitioner
and the learned Government Pleader.
4. It is an admitted fact that the first ARC is
dismissed as evident by Ext.P2 order. It will be better
to extract the relevant portion of Ext.P2 order:
"I have verified the plaint and the documents
produced in support of it. One of the important
document to be considered in this case is the
mortgage bond said to have been executed by
respondent. But surprisingly it is noted that the copy
of mortgage bond produced alongwith the plaint
shows that it is not an authenticated one since the
same is not seen signed by the respondent on there
ground alone this case fails. In this circumstances I
do not find any reason to proceed further in this case
and to keep this case alive anymore, but to dismiss I
do so."[SIC]
5. Ext.P2 was challenged by the Society before
the Co-operative Tribunal by filing an appeal as
evident by Ext.P3 which resulted in Ext.P4 order. It
WP(C) NO. 23951 OF 2010
will be better to extract the relevant portion of Ext.P4
order:
"4. The point :- The suit evidently is one for
recovery of money due to the appellant/plaintiff from
the respondent which he has availed as a loan. On a
reading of the award we can see that after receipt of
notice neither the plaintiff nor the defendant taken
any steps to accelerate the proceedings and so with
the available evidence he has disposed the same. In
this case appellant/plaintiff has not cared to adduce
evidence by producing the original documents and by
entering the box. Likewise defendant has not filed any
written statement. It is true that the photo copy of a
mortgage deed was filed before the Arbitrator. It was
allegedly executed by the defendant in favour of the
Secretary of the bank. But in the photo copy the copy
of the signature of the defendant and secretary not
finds a place. Instead of that fresh signature of the
president, Secretary and Director of the plaintiff
society finds a place. It creats doubt in the mind of
the Tribunal also so far as the veracity of the
document is concerned. It follows that the procedure
adopted by the Arbitrator in dismissing the ARC is
only to be upheld. But both the parties pray for a
remand.
4. In the result, the award is set aside and the
matter is remanded to the lower forum for fresh
WP(C) NO. 23951 OF 2010
disposal. Both the parties are to produce the original
documents before the Arbitrator and both of them are
at liberty to adduce fresh evidence if they so
desires."[SIC]
6. From the above order, it is clear that the
Tribunal found that there is nothing to interfere with
Ext.P2. Since the parties pray for a remand, the
matter was remanded. When Ext.P4 appeal was
pending, the Society filed another A.R.C in connection
with the same transaction as A.R.C.No.1363/2001-
02. The same was also dismissed. After Ext.P4,
A.R.C.No.221/2005 was filed which resulted in Ext.P7.
There is no dispute that the loan transaction
mentioned in Exts.P7 and P2 is one and the same. If
that is the case, the arbitrator ought not have
entertained A.R.C.No.221/2005. The Government
Pleader submitted that the Society is under
liquidation. Whatever that may be, the Society can
not file A.R.C continuously for the same transaction.
WP(C) NO. 23951 OF 2010
In this case, according to the petitioner, three A.R.C's
were filed for the same transaction. In such
circumstances, according to me, Ext.P7 award and
Ext.P9 order of the Tribunal will not stand. Since as
per Ext.P4, the matter is remanded, the parties are
bound by that remand order. Exts.P7 and P9 will not
stand in the light of Ext.P4 remand order.
Therefore, this writ petition is allowed in the
following manner:
i) Exts.P7 and P9 are set aside.
ii) The parties are bound by Ext.P4 order
of remand.
Sd/-
P.V.KUNHIKRISHNAN
DM JUDGE
WP(C) NO. 23951 OF 2010
APPENDIX OF WP(C) 23951/2010
PETITIONER EXHIBITS
EXHIBIT P1(A) TRUE COPY OF THE RECEIPT DATED
16.09.1999 ISSUED BY THE FIRST
RESPONDENT - SOCIETY FOR REMITTANCE
OF RUPEES 10,000/- MADE BY THE
PETITIONER.
EXHIBIT P1(B) TRUE COPY OF THE RECEIPT DATED
19.02.2000 ISSUED BY THE FIRST
RESPONDENT - SOCIETY FOR REMITTANCE
OF RUPEES 4,000/- MADE BY THE
PETITIONER.
EXHIBIT P1(C) TRUE COPY OF RECEIPT DATED
19.02.2000 ISSUED BY THE FIRST
RESPONDENT SOCIETY FOR REMITTANCE OF
RUPEES 2000/- MADE BY THE
PETITIONER.
EXHIBIT P2 TRUE COPY OF ORDER DATED 27/06/2000
OF THE JOINT REGISTRAR OF CO-
OPERATIVE SOCIETIES (GENERAL),
MALAPPURAM IN A.R.C.NO.110 OF 1999.
EXHIBIT P3 TRUE COPY OF MEMORANDUM OF APPEAL
DATED 16.01.2001 IN APPEAL PETITION
NO.57 OF 2001 ON THE FILE OF THE
COURT OF THE KERALA CO-OPERATIVE
TRIBUNAL, THIRUVANANTHAPURAM.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED
30.11.2004 IN APPEAL PETITION
NO.57/2001 ON THE FILE OF THE COURT
OF THE KERALA CO-OPERATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
EXHIBIT P5 TRUE COPY OF COMMUNICATION DATED
15.06.2005 ADDRESSED TO THE
WP(C) NO. 23951 OF 2010
PETITIONER BY THE FOURTH RESPONDENT-
ASSISTANT REGISTRAR.
EXHIBIT P6 TRUE COPY OF REPRESENTATION DATED
26.06.2005 PREFERRED BY C.P.AJITH
COUNSEL FOR THE PETITIONER BEFORE
THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES, MALAPPURAM.
EXHIBIT P7 TRUE COPY OF THE AWARD DATED
18/04/2005 IN A.R.C. NO.221 OF 2005
ON THE FILE OF THE COURT OF THE
ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES (GENERAL), PERINTHALMANNA.
EXHIBIT P8 TRUE COPY OF MEMORANDUM OF REVISION
PETITION NO.4 OF 2007 DATED
02.03.2006 ON THE FILE OF THE KERALA
CO-OPERATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
EXHIBIT P9 TRUE COPY OF ORDER DATED 29.05.2009
IN REVISION PETITION NO.4 OF 2007 ON
THE FILE OF THE KERALA CO-OPERATIVE
TRIBUNAL, THIRUVANANTHAPURAM.
RESPONDENTS EXHIBITS: NIL
//TRUE COPY// PA TO JUDGE
