Kerala High Court
The Mavelikkara Taluk ... vs Rajeswari S Kumar on 8 June, 2022
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
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
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
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
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
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
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
