Kerala High Court
Sureshkumar.V.K vs The Joint Registrar Of Co-Operative ... on 12 November, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
2024:KER:83682
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 12TH DAY OF NOVEMBER 2024/21ST KARTHIKA, 1946
WP(C) NO. 22294 OF 2023
PETITIONER:
SURESHKUMAR V.K,
AGED 52 YEARS,
MANAGING COMMITTEE MEMBER OF KADUTHURUTHI HOUSING
CO-OPERATIVE SOCIETY LTD.NO.K366, KADUTHURUTHY P.O,
KOTTAYAM,
PIN - 686604,
RESIDING AT VATTEKKATTIL HOUSE,
KARIKODE P.O., KOTTAYAM DISTRICT.
BY ADVS.
P.N.MOHANAN
C.P.SABARI
AMRUTHA SURESH
GILROY ROZARIO
RESPONDENTS:
1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL),
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES, COLLECTERATE POST,
KOTTAYAM, PIN - 686001
2 CHIEF EXECUTIVE OFFICER,
KADUTHURUTHY URBAN CO-OPERATIVE BANK LTD.NO.K.399,
KADUTHURUTHY P.O,
KOTTAYAM, PIN - 686604
3 KADUTHURUTHI HOUSING CO-OPERATIVE SOCIETY LTD.NO.K.366,
REPRESENTED BY SECRETARY,
KADUTHURUTHY P.O,
KOTTAYAM, PIN - 686604
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4 SANTHOSH JACOB
CHERIYAMKUNNEL, MUTTUCHIRA P.O,
KOTTAYAM, PIN - 686613
BY ADVS.
SRI.T.SHIHABUDHEEN
SMT.ANIMA M., GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05.08.2024, ALONG WITH WP(C).24491/2023, THE COURT ON
12.11.2024 DELIVERED THE FOLLOWING:
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W.P.(C) Nos.22294 & 24491 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 12TH DAY OF NOVEMBER 2024/21ST KARTHIKA, 1946
WP(C) NO. 24491 OF 2023
PETITIONER:
JOSE THOMAS,
AGED 62 YEARS,
S/O. THOMAS,
RESIDING AT NILAPPANAKOLLIYIL HOUSE,
VELLASSERY, KADUTHURUTHY P.O.,
KOTTAYAM, PIN - 686604.
BY ADV.SRI.T.SHIHABUDHEEN
RESPONDENTS:
1 JOINT REGISTRAR (GENERAL),
OFFICE OF THE JOINT REGISTRAR OF
CO-OPERATIVE SOCIETIES,
COLLECTORATE BUILDING, KOTTAYAM P.O,
KOTTAYAM DISTRICT, PIN - 686002
2 ASSISTANT REGISTRAR(GENERAL),
OFFICE OF THE ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES, VAIKOM P.O,
KOTTAYAM DISTRICT, PIN - 686141
3 KADUTHURUTHY HOUSING CO-OPERATIVE SOCIETY
(LTD NO. K.366),
OFFICE OF THE KADUTHURUTHY HOUSING
CO-OPERATIVE SOCIETY, KADUTHURUTHY P.O,
KOTTAYAM DISTRICT, PIN - 686604
REPRESENTED BY ITS SECRETARY.
4 KADUTHURUTHY URBAN COOPERATIVE BANK
LTD NO.399,
OFFICE OF THE KADUTHURUTHY URBAN COOPERATIVE
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W.P.(C) Nos.22294 & 24491 of 2023
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BANK, KADUTHURUTHY P.O.,
KOTTAYAM DISTRICT, PIN - 686604
5 SURESH KUMAR V.K,
AGED 49 YEARS,
S/O. KUTTY,
RESIDING AT VATTEKATTIL HOUSE,
KARIKODE P.O,
KOTTAYAM DISTRICT, PIN - 686610
6 ANTONY AUGUSTINE,
AGED 47 YEARS,
S/O. AUGUSTINE,
RESIDING AT MUNDAKKAL HOUSE,
KURAVILANGAD, PAKALOMATTOM P.O.,
KOTTAYAM DISTRICT, PIN - 686633
BY ADVS.
P.N.MOHANAN
C.P.SABARI(K/973/2010)
AMRUTHA SURESH(K/000971/2016)
GILROY ROZARIO(K/399/2021)
SUNITHA G.(K/103/2013)
MABLE C KURIEN, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05.08.2024, ALONG WITH WP(C).22294/2023, THE COURT ON
12.11.2024 DELIVERED THE FOLLOWING:
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N. NAGARESH, J.
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W.P.(C) Nos.22294 and 24491 of 2023
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Dated this the 12th day of November, 2024
JUDGMENT
~~~~~~~~~
The petitioner in W.P.(C) No.22294/2023 is a
Managing Committee member of the Kaduthuruthy Housing
Co-operative Society. The Managing Committee assumed
office on 17.08.2019. The Managing Committee has 11
members.
2. The petitioner states that he along with his
wife availed a loan from Mulakkulam Branch of the 2 nd
respondent-Kaduthuruthy Urban Co-operative Bank on
22.02.2023 as a principal loanee and as a guarantor. The
Managing Committee, by a resolution dated 17.06.2023,
granted three months time as "Holiday for repayment". Rule
44(1) of the Kerala Co-operative Societies Rules deals with
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W.P.(C) Nos.22294 & 24491 of 2023
disqualification in the case of election to the Managing
Committee and Rule 44(2)(c) deals with disqualification after
election. As per the proviso to Rule 44(2)(c), the
disqualification shall be deemed to be accrued only after
expiry of the period of one month from the date of receipt of a
notice from the Society demanding him to clear the defaulted
amount. Due to political reasons, the 1st respondent issued
Ext.P2 notice dated 03.07.2023 to disqualify the petitioner
under Rule 44, alleging that the petitioner is in default in a
loan transaction with the 2nd respondent-Bank.
3. The petitioner states that the question
whether a Managing Committee member can be disqualified
under Rule 44(3), without notice, was considered by the Full
Bench of this Court in Jalaja Gopan v. Joint Registrar [2022
(3) KLT 769]. The Full Bench held that the disqualification is
deemed to be accrued only after the expiry of a period of one
month from the date of receipt by the member concerned of a
notice from the Society demanding him to clear off the
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defaulted amount specified therein and he failed to remit the
amount within the said period.
4. The petitioner therefore prayed to quash
Ext.P2 and to declare that the petitioner cannot be
disqualified from the Managing Committee as no notice was
served so far on the petitioner for demanding the loan
amount.
5. The petitioner in W.P.(C) No.24491/2023 is
a member of the Kaduthuruthy Housing Co-operative Society.
The petitioner has filed the writ petition seeking to quash
Exts.P11 and P12 and to declare that respondents 5 and 6
are disqualified as Managing Committee members of the 3 rd
respondent-Society.
6. The petitioner in W.P.(C) No.24491/2023
states that he is a member of the Kaduthuruthy Housing Co-
operative Society and was the President of the 11 Member
Managing Committee. After the death of one of the Members,
the strength of the Managing Committee has come down to
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10. Five members of the Managing Committee filed a notice
of intention to move a No Confidence Motion against the
petitioner. The 1st respondent-Joint Registrar (General)
appointed the Assistant Registrar (General) for convening the
Managing Committee meeting for considering the No
Confidence Motion. The 2nd respondent fixed 15.02.2023 as
the date of meeting and issued notice to all the 10 Members.
The petitioner challenged the said notice filing W.P.(C)
No.5184/2023. This Court passed an interim order staying
further proceedings pursuant to the notice. The writ petition
was dismissed as per Ext.P3.
7. The 1st respondent-Joint Registrar passed
Ext.P4 order holding that the 5th and 6th respondents have
paid all dues to the Society and hence they are not
disqualified to continue as Committee Members. Ext.P4 order
was passed without giving an opportunity of hearing to the
petitioner. Subsequently, the 2nd respondent convened
meeting which was scheduled to be held on 13.07.2023 to
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consider No Confidence Motion against the petitioner. The
petitioner was voted out from the presidential position
pursuant to the meeting held on 13.07.2023.
8. The petitioner states that the 5 th respondent
is disqualified to be Member of the Managing Committee
since he paid his dues only one month after receipt of Exts.P5
to P7 notices. The 6th respondent also paid his dues after one
month from the date of receipt of Ext.P7 notice. Therefore,
respondents 5 and 6 are disqualified in view of Rule 44(2)(c)
of the Kerala Co-operative Societies Rules. Ext.P4 order has
been passed without giving an opportunity to adduce
evidence. Exts.P11 and P12 orders are therefore liable to be
set aside.
9. The 5th and 6th respondents in W.P.(C)
No.24491/2023 filed counter affidavit. Respondents 5 and 6
submitted that they had cleared all the loan transactions with
the 3rd respondent-Society. The 5th respondent had availed a
loan for construction purpose. The 6 th respondent was only a
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guarantor to a loan transaction of his wife. The said dues
were remitted back. Therefore, respondents 5 and 6 are
eligible to continue in the Managing Committee.
10. I have heard the learned counsel for the
petitioners in both the writ petitions and the learned Senior
Government Pleader representing the respondents.
11. In W.P.(C) No.22294/2023, the petitioner
seeks to set aside Ext.P2. Ext.P2 is a notice issued by the
Joint Registrar (General) invoking Rule 44(3). Ext.P3
required the petitioner in W.P.(C) No.22294/2023 to appear
for a hearing on 10.07.2023 to consider the issue of
disqualification of the petitioner.
12. The issue was considered by this Court in
W.P.(C) No.5184/2023. The said writ petition was filed by the
petitioner in W.P.(C) No.24491/2023. This Court held as
follows:
7. Having heard the learned counsel
appearing for the petitioner and the respective
counsel counsel appearing for respondent No.3 and
respondent Nos.4 and 5 and the learned
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W.P.(C) Nos.22294 & 24491 of 2023
Government Pleader appearing for the official
respondents, I am of the view that the petitioner has
not made out any case for grant of relief in this writ
petition. It is admitted that the earlier disqualification
in respect of respondent Nos.4 and 5 was in the year
2018. That disqualification was challenged before
this Court by filing W.P.(C.) No.8935 of 2018 and
this Court, by its interim order, made the
disqualification subject to the result of the writ
petition. The disqualification, which is not disputed, is
regarding the membership to the managing
committee of the 3rd respondent-Society. By efflux of
time, the term of the then Managing committee
expired and fresh elections were held to the
Managing Committee of the Society and respondent
Nos.4 and 5 were again elected to the Managing
Committee of the Society. Thereafter, respondent
Nos.4 and 5 have cleared the liability to the 3 rd
respondent Society and the Joint Registrar, through
proceedings dated 08.05.2023, has declared that
they are no longer disqualified under Rule 44(2)(c)(i)
of the KCS Rules. This order of the Joint Registrar is
not even under challenge in the present writ petition.
Moreover, the law laid down by the Full Bench of this
Court in Jalaja Gopan (supra) makes it clear that
the disqualification cannot be effected on the basis
of a notice issued earlier and the notice issued must
be proximate to the election in question. The
petitioner has no case that, any notice has been
issued to respondent Nos.4 and 5 just before they
were elected as members of the Managing
Committee to the 3rd respondent Society in the
elections held in the year 2019. The law laid down by
this Court in Molsy Eldhose (supra) appears to run
counter to the law laid down by the Full Bench of this
Court in Jalaja Gopan (supra). Therefore, the law
laid down in Molsy Eldhose (supra) cannot come to
the aid of the petitioner.
13. As the issue is already covered by Ext.P3
judgment. Furthermore, what is challenged by the petitioner
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in W.P.(C) No.22294 of 2023 is only a hearing notice. The
petitioner in W.P.(C) No.22294 of 2023 is therefore not
entitled to any relief.
14. Exts.P11 and P12 which are impugned in
W.P.(C) No.24491/2023 are notices requiring the Members of
the Managing Committee to attend a meeting to consider No
Confidence Motion against the petitioner. The petitioner has
not advanced any reason as to why such a meeting cannot be
convened. Respondents 5 and 6 are not declared as
disqualified to be members of the Society, when Exts.P11 and
P12 were issued. The challenge against Exts.P11 and P12
therefore fails.
Consequently, both the writ petitions are dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/07.11.2024
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APPENDIX OF WP(C) 22294/2023
PETITIONER'S EXHIBITS:
DATED 17.06.2023 OF THE SECOND
RESPONDENT BANK
Exhibit P2 TRUE COPY OF THE NOTICE DATED
03.07.2023 OF THE FIRST RESPONDENT
Exhibit P3 TRUE COPY OF THE STATEMENT DATED
07.07.2023 FILED BY THE SECOND
RESPONDENT
Exhibit P4 TRUE COPY OF THE JUDGMENT OF JALAJA
GOPALAN V. JOINT REGISTRAR REPORTED IN
2022 (3) KLT 769.
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W.P.(C) Nos.22294 & 24491 of 2023
APPENDIX OF WP(C) 24491/2023
PETITIONER'S EXHIBITS:
Exhibit P1 A TRUE COPY OF THE NOTICE NO. G/132/23
DATED 27.01.2023 ISSUED BY THE 2ND
RESPONDENT TO THE 5TH RESPONDENT.
Exhibit P2 A TRUE COPY OF THE NOTICE NO. G/132/23
DATED 27.01.2023 ISSUED BY THE 2ND
RESPONDENT TO THE 6TH RESPONDENT.
Exhibit P3 A TRUE COPY OF THE JUDGMENT DATED
08.06.2023 IN THE WRIT PETITION (C)
NO. 5184 OF 2023.
Exhibit P4 A TRUE COPY OF THE ORDER NO.
JRGKTM/52/2023-HM DATED 08.05.2023
SENT BY 1ST RESPONDENT TO MR. M.K.
RAJAN
Exhibit P5 A TRUE COPY OF THE DEMAND NOTICE NO.
137/21-22 DATED 24.09.2021 ISSUED BY
3RD RESPONDENT TO THE 5TH RESPONDENT.
Exhibit P6 A TRUE COPY OF THE NOTICE ISSUED UNDER
SECTION 13(2) OF THE SARFAESI ACT,
2002 DATED NIL ISSUED BY 4TH
RESPONDENT TO THE 5TH RESPONDENT'S
WIFE
Exhibit P7 A TRUE COPY OF THE LETTER NO.362/21-23
DATED 18.01.2023 SENT BY THE SECRETARY
OF THE 3RD RESPONDENT TO THE 1ST
RESPONDENT.
Exhibit P8 A TRUE COPY OF THE REPORT NO.
ARGVKM/63/2023-UI(2) DATED 01.02.2023
OF THE 2ND RESPONDENT SENT TO THE 1ST
RESPONDENT
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Exhibit P9 A TRUE COPY OF THE REPORT NO.
ARGVKM/67/2023-UI(3) DATED 01.02.2023
OF THE 2ND RESPONDENT SENT TO THE 1ST
RESPONDENT.
Exhibit 10 A TRUE COPY OF THE NOTICE ISSUED UNDER
SECTION 13(2) OF THE SARFAESI ACT,
2002 ISSUED BY 4TH RESPONDENT TO THE
5TH RESPONDENT.
Exhibit P11 A TRUE COPY OF THE NOTICE NO. G/132/23
DATED 24.06.2023 RECEIVED BY THE 5TH
RESPONDENT
Exhibit P12 A TRUE COPY OF THE NOTICE NO. G/132/23
DATED 24.06.2023 RECEIVED BY THE 6TH
RESPONDENT.
Exhibit P13 A TRUE COPY OF THE COMMITTEE NOTICE
NO. 221/23-24 DATED 14.11.2023 OF THE
3RD RESPONDENT SENT TO THE PETITIONER.
RESPONDENTS' EXHIBITS:
EXHIBIT R5 (b) True copy of the receipt dated
03.02.2023 issued in respect of the
fifth respondent as principal loanee
EXHIBIT R5 (c) True copy of the receipt dated
03.02.2023 issued in respect of the
Smt.Sabitha Suresh in which fifth
respondent stood as a surety
EXHIBIT R5 (d) True copy of the receipt dated
02.02.2023 issued in respect of Simi
Antony
EXHIBIT R5 (e) True copy of the letter dated
03.03.2023 of the Secretary of the
Housing Society
EXHIBIT R5 (a) true copy of the communication dated
14.02.2023 issued by the Kaduthuruthi
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Urban Co-operative Bank
Exhibit R3 (a) TRUE COPY OF THE RESOLUTION DATED
27.07.2023 OF THE KADUTHURUTHY HOUSING
CO-OPERATIVE SOCIETY ALONG WITH
COVERING LETTER DATED 27.07.2023.
