K.G. Poulose vs The Regional Director, Southern ...
2022 Latest Caselaw 1559 Ker

      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT
           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                  &
              THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
      TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
                         WA NO. 190 OF 2022
APPELLANTS:
     1      K.G. POULOSE
            AGED 77 YEARS, S/O.K.P.GEEVARGHESE,
            KUNNUTHUKATTIL, MANGARA P.O.,
            WADAKKANCHERRY,
            THRISSUR, PIN - 680589
     2      SARAMMA PHILIP
            AGED 66 YEARS
            W/O PHILIP
            KOTHAPUZHASERIL HOUSE, WADAKKANCHERRY P.O,
            THRISSUR, KERALA, PIN - 680582
            BY ADVS.
            T.K.RAJESHKUMAR
            MANOJ V GEORGE
            APARNA SOMARAJAN
            ASWIN K.R.
            MATHEWS BENNY
PETIONERSS/RESPONDENTS:
     1     THE REGIONAL DIRECTOR, SOUTHERN REGION
           MINISTRY OF CORPORATE AFFAIRS, 5TH FLOOR,
           SHASTRI BHAWAN, 26 HADDOWS ROAD, CHENNAI, PIN - 600006
     2     C.S.NAIR,
           AGED 51 YEARS
           SOPANAM, PARAKKARA P.O,
           THATTAYIL, PATHANAMTHITTA DISTRICT
           PIN - 61562
     3     PRAMOD V
           VILAKKATHARA HOUSE, ARATTUPUZHA,
           THRISSUR
           PIN - 680562
     4     MARY RANI POPULAR NIDHI PVT LTD
           REPRESENTED BY ITS DIRECTOR THOMAS DANIEL
           REGISTERED OFFICE XIII/526-E,
           POPULAR TOWER ANNEXE, VAKAYAR P.O,
           PATHANAMTHITTA
           PIN - 689698
 W.A.No.190 of 2022                  2



      5       THOMAS DANIEL
              POPULAR TOWER,
              VAKAYAR P.O, PATHANAMTHITTA
              PIN - 689698
      6       PRABHA TOMAS
              POPULAR TOWER, VAKAYAR P.O,
              PATHANAMTHITTA, PIN - 689698
      7       REBA MARY THOMAS
              D/O THOMAS DANIEL,
              POPULAR TOWER, VAKAYAR P.O,
              PATHANAMTHITTA, PIN - 689698
      8       RINU MARIAM THOMAS
              D/O THOMAS,
              DANIEL POPULAR TOWER, VAKAYAR P.O,
              PATHANAMTHITTA , PIN - 689698
      9       RIYA ANN THOMAS,
              D/O THOMAS DANIEL,
              POPULAR TOWER, VAKAYAR P.O, PATHANAMTHITTA , PIN - 689698

      11      MRPN MINORITY SHARE HOLDER CUSTOMERS WELFARE ASSOCIATION
              HAVING REGISTRATION NUMBER TVM/TV/131/2021
              THIRUVANANTHAPURAM, REPRESENTED BY PRESIDENT
              S. SUBRAMANIAN POTTI, RESIDING AT ANDOOR MADOM,
              KURAKKADA P.O., KIZHUVALLAM VILLAGE,
              CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM, PIN - 695104
      12      MARY JACOB
              AGED 77 YEARS
              W/O JACOB,
              UPPAZHAKKATTU HOUSE, MANKARA, ENKAKAD,
              THRISSUR, KERALA , PIN - 680589
              BY ADVS. SMT.MINI GOPINATH, CGC FOR R1
              SRI.K.R.RANJITH, GOVERNMENT PLEADER FOR R10
              SRI.PRAVEEN VYASAN FOR R2
              SRI.PRATHAP PILLAI FOR R3 & R11
              SRI.C.S.MANU FOR R5, R6 & R8


     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.190 of 2022                             3




                                         JUDGMENT

SHAJI P.CHALY,J.

This appeal is preferred by additional respondents 11 & 12 in W.P.(C) No.227 of

2021 dated 29th November, 2021, whereby the following reliefs sought for by the

writ petitioner viz., 2nd respondent in the appeal, were declined:

i) Call for the records leading to Exhibit P3 records passed by the Company Law Tribunal, Kochi Bench and quash the same by way of an appropriate writ, order or direction or in lieu of the same.

ii) Issue a writ of mandamus directing the 1 st respondent Regional Director to take appropriate action against the erring Nidhi Company for non-compliance of the mandatory stipulations.

iii) Any other writ, order or direction which the Honourable Court deems fit and proper in the circumstances of the case

iv) Award costs.

2. However, the learned Single Judge granted the following relief as relief No.2

in the Judgment , "invoking the inherent supervisory jurisdiction of this Court under

Article 227 of the Constitution of India, operation of Exhibit P3 order is stayed for a

period of 6 weeks, during which period, the parties are free to avail their alternative

remedy."

3. In fact the appellants herein got themselves impleaded in the writ petition as

additional respondents and basically supported the contentions advanced in the writ

petition, and advanced contentions against Exhibit P3 order passed by the National

Company Law Tribunal, Kochi Bench in I.A.No.178/KOB/2020 in CP/35/KOB/2020

dated 26th November, 2020, which reads as follows:

"7. In view of the aforesaid circumstances, this Tribunal hereby appoint

an Interim Management Committee under the Chairmanship of

Shri.E.K.Harikumar, Director, Kerala Finance Corporation, (Retired Chief

General Manager, State Bank of Travancore and a former Member (Banking)

Task Force to form Kerala Bank within the following members to assist him

in the matter:

        S.No.        Name S/Shri.                 Address
        1            Mr.Pramod        V      S/o. Vilakkathara House, Arattupuzha,
                     Narayanan                      Thrissur, Kerala - 680562.
        2            K.Joseph              George   9/1901, Kripa Nivas, Panachil
                     S/o.K.J.George                 Kunnil,       Edavacode        Road,
                                                    Kariyam,       Sreekariam       P.O.,
                                                    Thiruvananthapuram,       Kerala     -
                                                  695017
        3            Anandraj       T.S.      S/o Thongumpilly      House,    Chittissery,
                     Surendran T.N.                 Nenmanikkara,            Puthukkadm,
                                                    Thrissur - 680301
        4            G.S.Unnikrishnan,              VARA,       PTP     Avenue,        40,
                     Chartered        Accountant    Chittattinkara, Trivandrum - 695

4. In fact when the writ appeal came up for admission, we raised a query to

the counsel for the appellant, as to the maintainability of the appeal filed by

additional respondents in the writ petition, since the reliefs sought for in the writ

petition itself were dismissed, and therefore , whether the respondents can be said

to be aggrieved persons. Moreover the writ petitioner was given the liberty to seek

the alternative statutory remedy to assail Exhibit P3 impugned order and for that

purpose Exhibit P3 order was stayed for a period of six weeks. The judgment of the

learned Single Judge is dated 29th November, 2021. Therefore, the stay of the

impugned order granted for invoking the alternative remedy is already over, and the

writ petitioner has not preferred any appeal before this Court.

5. Therefore, in our view, the appellants who were respondents in the writ

petition cannot be said to be aggrieved persons, to challenge the judgment declining

the reliefs sought for in the writ petition.

6. Accordingly, the said preliminary issue was addressed by the learned counsel

for appellants Sri.Manoj V George and we have considered his arguments.

7. The paramount contention advanced is that, this Court, exercising the power

of appeal under the Kerala High Court Act 1958 need not be too technical in the

matter of filing of the appeal by respondents, though a writ petition is dismissed.

However, fact remains time was given to the writ petitioner to invoke the alternative

remedy and stay of Exhibit P3 impugned order was granted for a period of six

weeks, enabling the writ petitioner to invoke the alternative remedy. The stay

granted for invoking the alternative remedy has expired some time back, and this

appeal is apparently preferred before this Court on the 5th January, 2022.

8. Be that as it may, learned counsel for the 2 nd respondent/writ petitioner

Sri.Praveen Vyasan, appeared in the writ appeal, however he has not addressed this

Court with respect to the steps taken on the basis of the time period granted by the

learned Single Judge and as to why the writ petitioner has not preferred an appeal

9. We are not impressed by the argument advanced by the learned counsel for

the appellants in that regard, since we are of the view that, if and when the writ

petitioner had invoked the alternative remedy as per the liberty granted by the writ

court, there will be two separate proceedings pending before the statutory authority,

and this Court, against Exhibit P3 order passed by the National Company Law

Tribunal, Kochi Bench, emanating from the consequences of the dismissal of the writ

petition. We are also of the view that a respondent cannot step into the shoes of the

writ petitioner or transpose himself as an appellant, in his own volition, and continue

to assail the order impugned without establishing adequate and sufficient reasons.

10.There is no case for the appellants that the writ petitioner is disabled in any

manner to prefer an appeal. This principle is not strange or alien to the judicial

proceedings in view of Order 1 rule 10 of the Code of Civil Procedure dealing with

transposition. We are also of the opinion that in appropriate cases a writ court or the

appellate court in order to render justice, may allow a respondent in an appeal to be

transposed. But here in this case the respondent has filed the appeal in a dismissed

writ petition without disclosing the course of action adopted by the writ petitioner

pursuant to the liberty granted by the writ court to seek alternative remedy, and the

consequential stay granted for the purpose. This position was considered by the

Hon'ble Karnataka High Court in an election petition concerning a local body,

invoking Order 1 Rule 10 of CPC in Mallikarjunagouda v. Principal Munsiff,

Hubli [(1995) SCC Online Kar 231] and held as follows at para 8:

"8. A person who could have filed an election petition himself if he has not filed such a petition within the period of limitation and subject to the conditions prescribed under Section 15, cannot by an indirect method transpose himself as petitioner. The scheme of the provisions therefore to that extent are inconsistent with Order 1, Rule 10, C.P.C. and it cannot be allowed to be invoked and that is exactly what has been done by the learned Munsiff in this case. Hence, the order impugned herein cannot be sustained."

Taking into account all the above said aspects, we are of the view that the writ

appeal is not maintainable in law and therefore, it is dismissed. However, we make it

clear that all the questions of facts and law raised in the appeal are left open.

Sd/-

S.MANIKUMAR CHIEF JUSTICE

Sd/-

                                                       SHAJI P.CHALY
smv                                                       JUDGE