Johnson C.K vs The Joint Registrar Of ...
2023 Latest Caselaw 7237 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     TUESDAY, THE 27TH DAY OF JUNE 2023 / 6TH ASHADHA, 1945
                      WP(C) NO. 33251 OF 2019
PETITIONER:
             JOHNSON C.K.
             AGED 48 YEARS, S/O KURIAKOSE,
             CHMBATT, 12/65, THAMARASSERY,
             KOZHIKODE DISTRICT.
             BY ADVS.
             T.R.HARIKUMAR
             SRI.ADITHYA RAJEEV

RESPONDENTS:
     1       THE JOINT REGISTRAR OF CO-OPERATIVE
             SOCIETIES (GENERAL), KOZHIKODE,
             OFFICE OF THE JOINT REGISTRAR OF
             CO-OPERATIVE SOCIETIES (GENERAL),
             KOZHIKODE, PIN-673004.
     2       THE SPECIAL SALE OFFICER/ASSISTANT REGISTRAR,
             CALICUT CITY SERVICE CO-OPERATIVE BANK LTD.
             NO.D 2777, OFFICE OF THE JOINT REGISTRAR OF
             CO-OPERATIVE SOCIETIES (GENERAL),
             KOZHIKODE, PIN-673004.
     3       THE CALICUT CITY SERVICE CO-OPERATIVE
             BANK LTD.NO.D 2777,
             REPRESENTED BY ITS GENERAL MANAGER,
             CHALAPPURAM, KOZHIKODE, PIN-673002.
     4       THE ASSISTANT REGISTRAR OF CO-OPERATIVE
             SOCIETIES (GENERAL), KOZHIKODE,
             OFFICE OF THE ASSISTANT REGISTRAR OF
             CO-OPERATIVE SOCIETIES(GENERAL),
             KOZHIKODE, PIN-673004.
             BY ADVS.
             SRI.B.S.SWATHI KUMAR
             SMT.ANITHA RAVINDRAN
             SMT.MABLE C.KURIAN SR.GP


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   27.06.2023,   THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C).No. 33251 of 2019
                                   :2:



                     DEVAN RAMACHANDRAN, J.
                  =========================
                      W.P.(C).No. 33251 of 2019
                 ==========================
                  Dated this the 27th day of June, 2023

                             JUDGMENT

The petitioner calls into question Ext.P6 Order issued by the

Joint Registrar of Co-operative Societies (General), acting as

statutory Arbitrator under Section 69 of the Kerala Co-operative

Societies Act ('KCS Act' for short), on two grounds: namely, that the

said Authority is incompetent to function as an Arbitrator, and

secondly, that the impugned order is legally infirm.

2. Sri.T.R.Harikumar - learned counsel for the petitioner,

submitted that it has been specifically averred by his client that the

4th respondent - Assistant Registrar of Co-operative Societies

(General) does not obtain jurisdiction to hear the arbitration case

because he is under the administrative control of the respondent

Bank and hence would obviously be biased. He then submitted that

it is his client's specific case, on the question of maintainability of

the arbitration case, that since he was not residing within the area

of operation of the Bank, no such could be maintained against him.

Sri.T.R.Harikumar, therefore, prayed that this writ petition be

allowed and Ext.P6 be set aside.

3. Sri.B.S.Swathikumar - learned Standing Counsel for the

Bank, however, submitted that a counter affidavit has been filed on W.P.(C).No. 33251 of 2019

record, wherein, the Final Award issued by the Arbitrator has been

placed on record as Ext.R3(b). He pointed out that this Award was

issued as early as 28.10.2019, while this writ petition was filed

much thereafter, on 05.12.2019. He submitted that the deliberate

suppression of this vital fact disentitles the petitioner to any relief;

and then argued that, even on the merits of Ext.P6, his assertions

obtain no merit. He explained that it is the unequivocal stand of

the petitioner that he had applied for a "D Class" membership with

his client and, on obtaining it, had availed a loan, which is now

outstanding to a sum of more than Rs.95 lakhs. He submitted that,

therefore, the attempt of the petitioner is to take advantage of

something which he himself had done and then to put the blame on

the Bank, thus to shy away from honouring a large loan, to the

extent of nearly Rs.1 crore.

4. Smt.Mable C.Kurian - learned Senior Government Pleader,

submitted that the contention of the petitioner against the

competence of the 4th respondent is without any merit, going by the

statutory scheme. She argued, relying on Section 70 of the "KCS

Act", that the 4th respondent has full competence to be the

Arbitrator and that he has acted correctly in having issued Ext.P6

Order and the subsequent Ext.R3(b) Award. She concluded her

submissions saying that, as rightly argued by Sri.B.S.Swathikumar,

Ext.P6 records that it is the petitioner himself who had applied for W.P.(C).No. 33251 of 2019

a membership with the Bank, thus to then obtain a loan, but he

now tries to illegally resile from his obligations, putting up an

untenable defence that such a loan ought not to have been offered

to him.

5. When I evaluate and consider the afore submissions, I must

say that this Court finds great force in the contentions of the Bank

and that of the learned Senior Government Pleader.

6. This is because, the petitioner expressly admits that he had

applied for a membership with the Bank and thus became eligible

for a loan to be availed of from them. After having availed the loan,

he defaulted and the Bank filed an Arbitration Case. It is in that

case, that he took the contention that the Arbitrator does not have

jurisdiction to hear it and also that the Bank ought not to have

given him a loan, because he was residing outside the area of its

operation.

7. It is needless to say that the latter of the afore submissions

of the petitioner is certainly so incredulous that it cannot even be

countenanced by this Court in any manner. As rightly argued by

Sri.B.S.Swathikumar, the petitioner himself had, admittedly,

applied for membership with his client, and on being so favoured,

he was given a loan that he sought for, which he defaulted. One,

therefore, fails to understand how he now takes the stand that the

Arbitration Case is not maintainable because he ought not to have W.P.(C).No. 33251 of 2019

been given the membership or the loan by the Bank in the first

place. Such arguments are without any tenable basis; and

therefore, Ext.P6 order, which holds to such effect, is certainly

irreproachable.

8. Coming to the jurisdiction of the Arbitrator, as rightly

argued by the learned Senior Government Pleader, Section 70 of

the "KCS Act" certainly vests full power on the 4 th respondent to

act as such; and in any event, it would be unnecessary for this

Court to enter into that at this stage, because it is on record that

Ext.R3(b) Award was issued by the said Authority as early as on

28.10.2019, which is at least one and half months before this writ

petition was filed. This suppression by the petitioner certainly

would stand against him, and the added fact that he has not

challenged the said Award yet, would also disentitle him to any

relief from this Court.

9. Though this Court would have been fully justified, in such

circumstances, in imposing exemplary costs on the petitioner, I

choose not to do so, taking into account the persuasive submissions

against it by Sri.T.R.Harikumar.

This writ petition is thus closed.

Sd/-

DEVAN RAMACHANDRAN JUDGE anm W.P.(C).No. 33251 of 2019

'To be spoken to' on 03.07.2023

This matter has been listed today at the request of

Sri.T.R.Harikumar - learned counsel for the petitioner, who made a

limited plea that his client be left liberty to challenge the Award

passed by the Arbitrator in terms of law.

2. I do not propose to speak on this request in any manner at

all, because if any such remedy is available to the petitioner, he can

always invoke it, subject to all requirements in law, including

limitation, being satisfied.

Sd/-

DEVAN RAMACHANDRAN JUDGE W.P.(C).No. 33251 of 2019

APPENDIX OF WP(C) 33251/2019

PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE ARC NO.1586 OF 2018 FILED BY THE 3RD RESPONDENT BANK DATED 11.10.2018.

EXHIBIT P2 A TRUE COPY OF THE CIRCULAR NO.11/2017 DATED 23.01.2017 OF THE REGISTRAR OF CO-

OPERATIVE SOCIETIES.

EXHIBIT P3 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN ARC NO.1586 OF 2018 DATED 10.07.2019.

EXHIBIT P4 A TRUE COPY OF THE I.A.NO.12/2019 IN ARC NO.1586 OF 2018 DATED 08.08.2019, FILED BY THE PETITIONER.

EXHIBIT P5 A TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER IN ARC NO.1586 OF 2018 DATED 08.08.2019.

EXHIBIT P6 A TRUE COPY OF THE AWARD DATED 09.10.2019 IN I.A.NO.12/2019 IN ARC NO.1586 OF 2018 OF THE 2ND RESPONDENT.

RESPONDENT EXHIBITS Exhibit R3(a) TRUE COPY OF THE ORDER NO. RCS/592/2020-

EB(5)/K.DIS DATED 11-2-2020 Exhibit R3(b) TRUE COPY OF THE AWARD IN ARC NO.

1586/2018 DATED 28-10-2019 Exhibit R3(c) TRUE COPY OF THE STATEMENT OF ACCOUNT OF THE PETITIONER FROM 31-3-2017 TO 16-5-