[Cites 42, Cited by 0]
Kerala High Court
Suresh.K.V vs State Of Kerala on 16 January, 2026
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
WP(C) NO. 33272 OF 2025
PETITIONER:
SURESH.K.V
AGED 53 YEARS, S/O VASU ACHARI,
KARIMPANAYIL HOUSE, VECHOOCHIRA P.O,
CHETHKKAL VILLAGE, PATHANAMTHITTA DISTRICT,
PIN - 686 511.
BY ADVS.
SRI.V.SETHUNATH
SRI.THOMAS ABRAHAM (K/1051/2010)
SRI.SREEGANESH U.
SRI.LAKSHMINARAYAN.R
SRI.GAUTHAM KRISHNAN K.G.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS PRINCIPAL SECRETARY TO
CO-OPERATION DEPARTMENT, THIRUVANATHAPURAM,
PIN - 695 001.
2 REGISTRAR OF CO-OPERATIVE SOCIETIES
JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION,
THYCAUD (PO), THIRUVANANTHAPURAM, PIN - 695 014.
3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
MINI CIVIL STATION, PATHANAMTHITTA.P.O,
PIN - 689 645.
4 THE ASST. REGISTRAR (GENERAL)
BLOCKPADY, RANNI P.O, PATHANAMTHITTA DISTRICT,
PIN - 689 672.
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2
5 INSPECTOR OF CO-OPERATIVE SOCIETIES
(SPECIAL SALE OF OFFICER) THE RANNI PRIMARY
CO-OPERATIVE AGRICULTURAL DEVELOPMENT BANK. LTD.
P.T.232 , RANNY P.O, PIN - 689 672.
6 THE RANNI PRIMARY CO-OPERATIVE AGRICULTURAL
DEVELOPMENT BANK. LTD.
NEAR ITTIYAPARA BUS STAND, PAZHAVANGADI P O,
RANNI, REPRESENTED BY ITS SECRETARY,
PIN - 689 672.
7 THE THAHASILDAR
TAHSILDAR'S OFFICE IN THE RANNI TALUK,
RANNI.P.O, PATHANAMTHITTA, PIN - 689 672.
8 THE VILLAGE OFFICER
CHETHAKKAL, CHETHAKKAL.P.O, RANNI TALUK,
PATHANAMTHITTA DISTRICT, PIN - 689 677.
BY ADVS.
SRI.P.RAMAKRISHNAN (FOR R6)
SMT.PREETHI RAMAKRISHNAN (P-212) (FOR R6)
SRI.PRATAP ABRAHAM VARGHESE (FOR R6)
SRI.MANOJKUMAR G. (FOR R6)
SRI.ASHOK MENON (FOR R6)
SRI. P P THAJUDHEEN (SPL GP (CO-OP)),
SMT. C S SHEEJA (Sr.GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.09.2025 AND HAVING BEEN FINALLY HEARD ON
16.01.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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3
'C.R.'
JUDGMENT
This writ petition has been filed challenging recovery
proceedings initiated against the petitioner under the
provisions of the Kerala State Co-operative (Agricultural
and Rural Development Banks) Act, 1984 (hereinafter
referred to as the 'CARD Act'). According to the petitioner,
the provisions of Section 19 of the CARD Act enable a Bank
to which the provisions of the said Act apply to bring
mortgaged property to sale without the intervention of any
Court, and since the provisions of the CARD Act do not
create a mechanism for the adjudication of disputes, the
provision is arbitrary and unconstitutional. It is contended
that the provision is also in conflict with certain provisions
of the Kerala Co-operative Societies Act, 1969 (hereinafter
referred to as the '1969 Act').
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Brief Facts:-
2. The petitioner availed a house maintenance loan
from the 6th respondent, a Primary Co-operative
Agricultural Development Bank. Alleging default in
repayment of the loan, the 6th respondent initiated action
under the provisions of the CARD Act and brought the
property of the petitioner that was mortgaged to sale.
According to the petitioner, the 6 th respondent itself
purchased the property in the auction for an amount that is
considerably below the actual market value of the
property. The petitioner also states that the 6th respondent
had charged interest on the loan beyond contractual rates.
3. Sri. V. Sethunath, the learned counsel appearing
for the petitioner, contends that the provisions of
Section 19 of the CARD Act confer unbridled and arbitrary
powers on the Primary Credit Societies, as the Societies
are empowered to sell properties that have been
mortgaged to secure the repayment of a loan without the
intervention of the Court and without any adjudication. It
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is submitted that Banks/Primary Credit Societies like the
6th respondent are therefore empowered to determine for
themselves the amount due from the borrower and also to
sell the property that has been mortgaged to recover such
amount, in some cases even without fixing a reserve price.
It is submitted that this Court, in Sosamma John v.
Thrissur Co-operative Agricultural and Rural
Development Bank and Others, 2018 (2) KHC 498,
has taken the view that the sale of property without fixing
a reserve price cannot be sustained in law. The learned
counsel for the petitioner contends that without resorting
to the procedure under Section 69 of the 1969 Act, a
Bank/Primary Credit Society exercising powers under
Section 19 of the CARD Act cannot proceed to sell
properties that are mortgaged.
4. Sri. P. P. Tajudeen learned Special Government
Pleader, and Smt. C. S. Sheeja learned Senior Government
Pleader appearing for respondents 1 to 5, 7 and 8, would
submit that the contention taken by the petitioner cannot
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be accepted. It is submitted that the Supreme Court in
Mardia Chemicals Ltd. and Others v. Union of India
and Others, (2004) 4 SCC 311, upheld the provisions of
the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002
(hereinafter referred to as the 'SARFAESI Act'), where a
similar power has been given to Banks and Financial
Institutions to which the provisions of that Act apply to sell
properties that are mortgaged/hypothecated etc. without
the intervention of the Court. It is submitted that
borrowers who are aggrieved by the action of
Banks/Financial Institutions under the provisions of the
SARFAESI Act have to then approach the Debts Recovery
Tribunal by filing an application under Section 17 of the
SARFAESI Act, and all contentions have to be adjudicated
by the Debts Recovery Tribunal. It is submitted that
although Circular No.12/2025 issued by the Registrar of
Co-operative Societies indicated that the provisions of
Section 69 of the 1969 Act cannot be invoked by a
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borrower, by a subsequent communication dated
01-11-2025 issued by the Registrar of Co-operative
Societies, it has been clarified that the provisions of
Section 69 of the 1969 Act can be invoked even by the
borrower in the event of any dispute with the Bank/Society.
It is submitted that, although the 6th respondent is a
Primary Co-operative Agricultural and Rural Development
Bank, as it is also a Society registered under the provisions
of the 1969 Act, the jurisdiction under Section 69 of the
1969 Act can be invoked in the event of any dispute with
the 6th respondent. It is pointed out that no provision in
the CARD Act would exclude the jurisdiction of the
arbitrator appointed under the provisions of Section 69 of
the 1969 Act. It is submitted that all the contentions taken
by the petitioner can be properly raised before the
arbitrator, and thus the contention of the petitioner that
the provisions of Section 19 of the CARD Act are arbitrary
and unconstitutional cannot be sustained. It is further
submitted that although Section 69 of the 1969 Act can be
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invoked by the borrowers, the right to raise a dispute must
be exercised within a reasonable time. Reference is made
in this regard to the decisions of this Court in Thajuddin
Shameer v. Secretary Coastal Urban Co-operative
Bank Ltd, 2004 (1) KLT 909 and Sarojini Amma v.
Trivandrum District Co-operative Bank Ltd, 2005 (3)
KLT 655.
5. Heard the learned counsel appearing for the
6th respondent also.
6. On an analysis of the submissions made across
the bar, I conclude that the challenge to the provisions of
Section 19 of the CARD Act cannot be sustained for
reasons indicated below.
7. A Bank to which the provisions of the CARD Act
apply is also a Society registered under the provisions of
the 1969 Act. Unless expressly or by necessary implication,
there is a specific exclusion of any of the provisions of the
1969 Act, such provisions will apply to a Bank to which the
provisions of the CARD Act apply. This is clear from the
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definition of 'Primary Co-operative Agricultural Rural
Development Bank' in Section 2(oc) of the 1969 Act, from a
reading of Rule 15(1) of the Kerala Co-operative Societies
Rules, 1969 (dealing with the 'Classification of Societies
according to types'), as well as from the definitions of
'Co-operative Society', 'Primary Agricultural Credit
Society' and 'Primary Bank' in Sections 2(d), 2(g) and 2(h)
of the CARD Act. In Irinjalakuda Cooperative
Agricultural and Rural Development Bank Ltd. v.
Kerala State Cooperative Agricultural and Rural
Development Bank Ltd, 2009 (1) KHC 925, this Court
took the view that a Bank/Primary Credit Society to which
the provisions of the CARD Act apply is a society in terms
of the provisions contained in the 1969 Act. It was held:-
"12. The registration of a cooperative society, even as a
Primary Cooperative Agricultural and Rural
Development Bank, could be had only under the KCS
Act and not under the CARD Act since the latter does not
deal with the subject of registration but, as rightly pointed
out on behalf of the petitioner, the said statute governs the
financial relationship between the KSCARD Bank and
PCARD Banks, and also provides machinery for recovery
etc. The legislative competence to categorize cooperative
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societies registered or deemed to be registered under the
KCS Act into different categories is beyond dispute. Even by
primary legislation, different types of cooperative societies
are defined..........."
Emphasis supplied
Therefore, I have no hesitation to hold that even a
Bank/Society to which the provisions of the CARD Act
apply will, for all purposes not covered by the provisions of
the CARD Act, be governed by the provisions of the
1969 Act.
8. Section 69 of the 1969 Act reads thus:-
"69. Disputes to be decided by Co-operative
Arbitration Court and Registrar.- (1) Notwithstanding
anything contained in any law for the time being in force, if
a dispute arises,-
(a) among members, past members and persons
claiming through members, past members and
deceased members;or
(b)between a member, past member or person claiming
through a member, a past member or deceased
member and the society, its committee or any
officer, agent or employee of the society; or
(c) between the society or its committee and any past
committee, any officer, agent or employee or any
past officer, past agent or past employee or the
nominee, heirs or legal representatives of any
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deceased officer, deceased agent or deceased
employee of the society; or
(d) between the society and any other society; or
(e) between a society and the members of a society
affiliated to it; or
(f) between the society and a person, other than a
member of the society, who has been granted a loan
by the society or with whom the society has or had
business transactions or any person claiming
through such a person; or
(g) between the society and a surety of a member, past
member, deceased member or employee or a person,
other than a member, who has been granted a loan
by the society, whether such a surety is or is not a
member of the society;or
(h) between the society and a creditor of the society, or
(i) between the co-operative society and its subsidiaries
under section 14AA; or
(j) between the members of the partnership formed
under Section 14B, such dispute shall be referred to
be Co-operative Arbitration Court constituted under
Section 70A in the case of non-monetary disputes
and to the Registrar, in the case of monetary
disputes and the Arbitation Court, or the Registrar,
as the case may be, shall decide such dispute and no
other Court or other authority shall have jurisdiction
to entertain any suit or other proceedings in the
respect of such disputes.
(2) For the purposes of sub-section (1), the following shall
also be deemed to be disputes, namely:-
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(a) a claim by the society for any debt or demand due to
it from a member or the nominee, heirs or legal
representatives of a deceased member, whether
such debt or demand be admitted or not;
(b) a claim by a surety against the principal debtor,
where the society has recovered from the surety any
amount in respect of any debt or demand due to it
from the principal debtor, as a result of the default
of the principal debtor, whether such debt or
demand is admitted or not;
(c) any dispute arising in connection with the election of
the Board of Management or any officer of the
society;
Explanation:- A dispute arising at any stage of an
election commencing from the convening of the general
body meeting for the election, shall be deemed to be a
dispute arising in connection with the election;
(d) any dispute arising in connection with employment
of officers and servants of the different classes of
societies specified in sub-section (1) of Sec.80,
including their promotion and inter se seniority.
(3) No dispute arising in connection with the election of the
Board of Management or an officer of the society shall be
entertained by the Cooperative Arbitration Court unless it
is referred to it within one month from the date of the
election.
(4) All monetary disputes mentioned in Schedule III to the
Act shall be filed within the time limit specified in the said
Schedule."
The fact that Section 19 of the CARD Act begins with a
non obstante clause excluding the applicability of the
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1969 Act, the Transfer of Property Act and any other law
for the time being in force does not in any manner stand in
the way of holding that a Society to which the provisions of
the CARD Act apply will, for all purposes not covered by
the provisions of the CARD Act, be governed by the
provisions of the 1969 Act (including the provisions of
Section 69 of the 1969 Act) as the non obstante clause in
Section 19 is only for the limited purpose of enabling the
Bank/Primary Credit Societies to initiate the sale of
property mortgaged with the Bank/ Society without the
intervention of a Court. Similar provisions are made in the
SARFAESI Act as well.
9. At this juncture, it must be noted that the
CARD Act does not expressly exclude the jurisdiction of the
Civil Court. If the CARD Act is determined to be a
standalone Act, then a suit would be maintainable in
respect of any action taken under the CARD Act. However,
since it has been held that the provisions of the 1969 Act
continue to apply to a Bank/Society to which the provisions
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of the CARD Act apply (unless it is expressly or by
necessary implication excluded), Section 100 of the
1969 Act, which specifically excludes the jurisdiction of
Civil Courts, will also apply and thus the jurisdiction of the
Civil Court stands excluded in respect of all matters arising
under the CARD Act.
10. In Mardia Chemicals (supra), the Supreme
Court compared the remedy under Section 17 of the
SARFAESI Act to a suit under the Code of Civil Procedure,
1908. It was observed:-
"59. We may like to observe that proceedings under Section
17 of the Act, in fact, are not appellate proceedings. It
seems to be a misnomer. In fact it is the initial action which
is brought before a forum as prescribed under the Act,
raising grievance against the action or measures taken by
one of the parties to the contract. It is the stage of initial
proceeding like filing a suit in civil court. As a matter of fact
proceedings under Section 17 of the Act are in lieu of a civil
suit which remedy is ordinarily available but for the bar
under Section 34 of the Act in the present case. We may
refer to a decision of this Court in Ganga Bai v. Vijay Kumar
where in respect of original and appellate proceedings a
distinction has been drawn as follows: (SCC p. 397, para 15)
"There is a basic distinction between the right of suit
and the right of appeal. There is an inherent right in
every person to bring a suit of civil nature and unless
the suit is barred by statute one may, at one's peril,
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bring a suit of one's choice. It is no answer to a suit,
howsoever frivolous to claim, that the law confers no
such right to sue. A suit for its maintainability
requires no authority of law and it is enough that no
statute bars the suit. But the position in regard to
appeals is quite the opposite. The right of appeal
inheres in no one and therefore an appeal for its
maintainability must have the clear authority of law.
That explains why the right of appeal is described as
a creature of statute."
60-61 ............
62. As indicated earlier, the position of the appeal under
Section 17 of the Act is like that of a suit in the court of the
first instance under the Code of Civil Procedure. No doubt,
in suits also it is permissible, in given facts and
circumstances and under the provisions of the law to attach
the property before a decree is passed or to appoint a
receiver and to make a provision by way of interim measure
in respect of the property in suit. But for obtaining such
orders a case for the same is to be made out in accordance
with the relevant provisions under the law. There is no such
provision under the Act."
In the same case, the Supreme Court also held that the
failure to establish an adjudicatory mechanism would make
the provisions of the SARFAESI Act unconstitutional. It
was observed:-
"68. The main thrust of the petitioners as indicated in the
earlier part of this judgment to challenge the validity of the
impugned enactment is that no adjudicatory mechanism is
available to the borrower to ventilate his grievance through
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an independent adjudicatory authority. Access to justice, it
is submitted, is the hallmark of our system. Section 34 of the
Act bars the jurisdiction of the civil courts to entertain a suit
in matters of recovery of loans. The remedy of appeal
available under the Act as contained in Section 17 can be
availed only after measures have already been taken by the
secured creditor under sub-section (4) of Section 13 of the
Act which includes sale of the secured assets, taking over its
management and all transferable rights thereto. Virtually it
is no remedy at all also in view of the onerous condition of
deposit of 75% of the claim of the secured creditor. Before
filing an appeal under Section 17 of the Act, decision is to be
taken in respect of all matters by the bank or financial
institution itself which can hardly be said to be an
independent agency; rather they are a party to the
transaction having unilateral power to initiate action under
sub-section (4) of Section 13 of the Act. So far as remedy
under Article 226 of the Constitution of India is concerned,
the submission is that it may not always be available since
the dispute may be only between two private parties, the
banking companies, cooperative banks or financial
institutions, foreign banks, some of them may not be
authorities within the meaning of Article 12 of the
Constitution of India against whom a writ petition could be
maintainable. Thus the position that emerges is that a
borrower is virtually left with no remedy. Where access to
the court is prohibited and no proper adjudicatory
mechanism is provided such a law is unconstitutional
and cannot survive. In support of the aforesaid
contentions besides others, reliance has particularly been
placed upon the case L. Chandra Kumar v. Union of India
and Surya Dev Rai v. Ram Chander Rai . A reference has
also been made to the decision of Kihoto Hollohan. In the
case of L. Chandra Kumar it is held, some adjudicatory
process through an independent agency is essential
for determining the rights of the parties, more
particularly when the consequences which flow from
the offending Act defeat the civil rights of a party.
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69. On behalf of the respondents time and again stress has
been given on the contention that in a contractual matter
between the two private parties they are supposed to act in
terms of the contract and no question of compliance with
the principles of natural justice arises nor the question of
judicial review of such actions needs to be provided for.
However, at the very outset, it may be pointed that the
contract between the parties as in the present cases, is no
more as private as sought to be asserted on behalf of the
respondents. If that was so, in that event parties would
be at liberty to seek redressal of their grievances on
account of breach of contract or otherwise taking
recourse to the normal process of law as available, by
approaching the ordinary civil courts. But we find that
a contract which has been entered into between the
two private parties, in some respects has been
superseded by the statutory provisions or it may be
said that such contracts are now governed by the
statutory provisions relating to recovery of debts and
bar of jurisdiction of the civil court to entertain any
dispute in respect of such matters. Hence, it cannot be
pleaded that the petitioners cannot complain of the
conduct of the banking companies and financial
institutions for whatever goes on between the two is
absolutely a matter of contract between private
parties, therefore, no adjudication may be necessary."
Emphasis is supplied
The remedy under Section 69 of the 1969 Act must,
therefore, be viewed as a remedy akin to the remedy under
Section 17 of the SARFAESI Act. Thus, in cases where
action is taken under the CARD Act, the person aggrieved
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by such proceedings will be entitled to initiate proceedings
under Section 69 of the 1969 Act to have any dispute with
the Bank/Society adjudicated. It is only that the role is
reversed, just like in proceedings under the SARFAESI Act.
Thus, it will be open to the petitioner to invoke the
provisions of Section 69 of the 1969 Act if the petitioner
has any grievance or dispute that could be adjudicated in
terms of the provisions of Section 69 of the 1969 Act, even
in a case where action has been initiated under the
provisions of the CARD Act. The challenge to the provisions
of Section 19 of the CARD Act on the ground that the
provisions do not contemplate any machinery for
adjudication must, therefore, fail.
11. The challenge to the provisions of Section 19 of
the CARD Act must fail for another reason. It is settled law
that a statutory provision can be challenged only if :
i. The provision is violative of the provisions
contained in Part III of the Constitution of
India;
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ii. The provision is bad for lack of legislative
competence;
iii. The provision violates the Basic Structure of
the Constitution of India; or;
iv. The provision is manifestly arbitrary 1 .
While the learned counsel for the petitioner may be right in
contending that the provisions of Section 19 of the
CARD Act would be arbitrary if no remedy were available
to a borrower facing proceedings under the said provisions
to challenge the action of the Banks/Primary Credit
Societies, since it is clear that the petitioner can invoke the
provisions of Section 69 of the 1969 Act, I find that
Section 19 of the CARD Act cannot be challenged on any of
the grounds referred to above especially when similar
provisions in the SARFAESI Act have been held valid in
Mardia Chemicals (supra).
1 In Shayara Bano v. Union of India; (2017) 9 SCC 1 , the Supreme
Court held that a statutory provision can also be challenged if it is
manifestly arbitrary. The meaning and content of the term ' manifest
arbitrariness' has also been elaborated by the Supreme Court in the
aforesaid decision. (See paragraph 101 of the SCC Report)
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12. As a corollary to the determination of the
aforementioned issue, it is imperative to ascertain the
period within which proceedings have to be initiated by the
borrower under Section 69 of the 1969 Act when
proceedings are commenced under the provisions of the
CARD Act. Section 69(4) of the 1969 Act (inserted by Act 8
of 2013) reads thus:-
"(4) All monetary disputes mentioned in Schedule III to the
Act shall be filed within the time limit specified in the said
Schedule"
Schedule III of the 1969 Act provides thus:-
THE SCHEDULE III
[See sub- Section (4) of Section 69)
Sl. Description of Dispute or Suit Period of Time from
No limitation which
period
begins to
run
1 For money receivable Three years When
repayment
period is
over for
money lent
2 For money lent under an Three years When loan
agreement that it shall be is made
payable on demand.
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3 For money deposited under an Three years When
agreement that it shall be demand is
payable on demand, including made
money for a Member or
customer in the hands of society
4 For the price of work done by Three years When work
the parties to the dispute where is done
no time has been fixed for
payment.
5 By a surety against the principal Three years When the
debtor surety pays
the creditor
6 By a surety against a co-surety Three years When the
surety pays
anything in
excess of
his own
share
7 For the balance of money Three years When
advanced in payment of goods to goods
be delivered ought to be
delivered.
8 For the price of goods, goods Three years The date of
sold and delivered where no delivery of
fixed period of credit is agreed the goods
upon.
9 For the price of goods, goods Three years When
sold and delivered to be paid for period of
after the expiry of a fixed period credit
of credit expires
Thus, the provisions of Schedule III of the 1969 Act do not
provide a period of limitation where the borrower wishes
to challenge the proceedings initiated under the provisions
of the CARD Act.
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13. In Ajaib Singh v. Sirhind Cooperative
Marketing-cum-Processing Service Society Ltd.,
(1999) 6 SCC 82, the Supreme Court, while considering
the question as to whether any period of limitation has
been prescribed in respect of proceedings under the
Industrial Disputes Act, 1947 held:-
"10. It follows, therefore, that the provisions of Article 137
of the Schedule to the Limitation Act, 1963 are not
applicable to the proceedings under the Act and that the
relief under it cannot be denied to the workman merely on
the ground of delay. The plea of delay if raised by the
employer is required to be proved as a matter of fact by
showing the real prejudice and not as a merely hypothetical
defence. No reference to the Labour Court can be generally
questioned on the ground of delay alone. Even in a case
where the delay is shown to be existing, the tribunal, labour
court or board, dealing with the case can appropriately
mould the relief by declining to grant back wages to the
workman till the date he raised the demand regarding his
illegal retrenchment/termination or dismissal. The court may
also in appropriate cases direct the payment of part of the
back wages instead of full back wages. Reliance of the
learned counsel for the respondent management on the Full
Bench judgment of the Punjab and Haryana High Court in
Ram Chander Morya v. State of Haryana is also of no help to
him. In that case the High Court nowhere held that the
provisions of Article 137 of the Limitation Act were
applicable in the proceedings under the Act. The Court
specifically held "neither any limitation has been provided
nor any guidelines to determine as to what shall be the
period of limitation in such cases". However, it went on
further to say that
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"reasonable time in the cases of labour for demand of
reference or dispute by appropriate Government to
labour tribunals will be five years after which the
Government can refuse to make a reference on the
ground of delay and laches if there is no explanation
to the delay".
We are of the opinion that the Punjab and Haryana High
Court was not justified in prescribing the limitation for
getting the reference made or an application under Section
33-C of the Act to be adjudicated. It is not the function of
the court to prescribe the limitation where the
legislature in its wisdom had thought it fit not to
prescribe any period. The courts admittedly interpret law
and do not make laws. Personal views of the Judges
presiding over the Court cannot be stretched to authorise
them to interpret law in such a manner which would amount
to legislation intentionally left over by the legislature. The
judgment of the Full Bench of the Punjab and Haryana High
Court has completely ignored the object of the Act and
various pronouncements of this Court as noted hereinabove
and thus is not a good law on the point of the applicability of
the period of limitation for the purposes of invoking the
jurisdiction of the courts/boards and tribunal under the Act."
(Emphasis is supplied)
Thus, it is evident that when the statute does not prescribe
a period of limitation, this Court should not step in to
determine or fix any such period of limitation.
14. Regardless of the circumstances, given the
nature of the proceedings under the CARD Act and the fact
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that when property is sold under its provisions, third-party
rights may invariably be involved, the rights under Section
69 must be invoked by the borrowers within a reasonable
timeframe. The law on the point is well settled. It has been
consistently held that when the statute does not prescribe
any period of limitation to raise a challenge before any
authority, such a challenge must be raised within a
reasonable time. This aspect was considered recently by
the Supreme Court in North Eastern Chemicals
Industries (P) Ltd. v. Ashok Paper Mill (Assam) Ltd. ,
(2023) 19 SCC 798. It was held:-
31. This dispute concerns the exercise of a statutory right.
The issue of no express limitation being provided in regard
to the exercise of a right to assail the order has captured the
attention of this Court, earlier, on certain occasions. We may
refer to some decisions hereinbelow.
32. In State of Punjab v. Bhatinda District Coop. Milk
Producers Union Ltd., this Court observed that:(SCC p.367
para. 18)
"18. It is trite that if no period of limitation has been
prescribed, statutory authority must exercise its
jurisdiction within a reasonable period. What,
however, shall be the reasonable period would
depend upon the nature of the statute, rights and
liabilities thereunder and other relevant factors."
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The principle stands reiterated in SEBI v. Sunil Krishna
Khaitan.
33. In Jagdish v. State of Karnataka, this Court referred to a
number of decisions to reiterate that where the statute in
question does not prescribe a limitation, the rights
conferred therein must be exercised within reasonable time.
34. This aspect of reasonable time was recently discussed by
this Court in Madras Aluminium Co. Ltd v. T.N. SEB, having
referred a three-Judge Bench decision in SEBI v. Bhavesh
Pabari stating that the concept is to be applied and judged
in each case per its own peculiar facts."
In SEBI v. Bhavesh Pabari, (2019) 5 SCC 90, which was
referred to and followed in North Eastern Chemicals
Industries (P) Ltd (supra), it was held:-
"35. ......There are judgments which hold that when the
period of limitation is not prescribed, such power must be
exercised within a reasonable time. What would be
reasonable time, would depend upon the facts and
circumstances of the case, nature of the
default/statute, prejudice caused, whether the third-
party rights had been created, etc."
In Thajuddin Shameer (supra), this court was dealing
with the dismissal of two revision petitions filed before the
Co-operative Tribunal under the provisions of Section 84 of
the 1969 Act as barred by limitation. It was held:-
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"...The Legislature has chosen to prescribe periods of
limitation for filing appeal under S.82 before the Tribunal,
appeal under S.83 before the Government, review before the
Tribunal under S.85 and revision before the Government
under S.87. Only in the case of revision under S.84 before
the Tribunal, the Legislature has chosen not to prescribe
any time limit. So revisions were being entertained without
any reference to the delay in filing them. There is no
decision of this Court directly on this point. But the Tribunal
has relied on a decision of the Full Bench of this Court in
Moideen Koya v. Kunhammed Haji, interpreting S.20 of the
Buildings (Lease and Rent Control) Act to dismiss the
revisions. ...........
5. Interpreting this provision, a Single Judge of this Court in
Narayanan v. Rent Controller has held that though no time
limit was prescribed under S.20, the power of revision
should be invoked within a reasonable time limit, say 90
days. If the revision is filed beyond that period, the delay
should be satisfactorily explained. The relevant portion of
the judgment reads as follows:
"11. It may at this juncture point out that the
District Court has committed a gross error in
entertaining the Revision Petition filed after a long
lapse of 10 years, 7 months and 21 days. It is true
that S.20 of the Act does not specify any time limit
for approaching the Revisional Court. On the other
hand, it enables the District Court at any time to call
for and examine the records of the Appellate
Authority in relation to any order passed or
proceedings taken, for the purpose of satisfying
itself as to the legality, regularity or propriety of the
said order or proceedings. That does not however
mean that the District Court can exercise its
jurisdiction at any future time without any limitation
whatsoever. The exercise of revisional power is
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entirely discretionary, and should be in the interests
of justice. S.20 does not confer any right on the
petitioner but only vests a power in the District
Court. It is a privilege conferred on the petitioner,
and not a right. The petitioner is therefore expected
to be diligent in invoking the revisional power. He
must come to court without undue delay - I should
say, at the earliest. As noted by a Full Bench of the
High Court of Bombay in a case arising under S.622
of the Code of Civil Procedure, 1882, delay in
approaching the court is one of the factors on which
the exercise of the discretion rests. The court
observed:-
'The court will in all cases, regard its exercise of the
extraordinary jurisdiction as discretional and subject
to considerations of the importance of the particular
case, or of an applicant, and of his merits with
respect to the case in which the interference of the
court is sought.' (Shiva Nathaji v. Joma Kashinath
(ILR 7 Bom. 831)
12. Krishna Iyer, J., had occasion to deal with a case
where the Revisional Court entertained the revision
after a period of two years from the date of the
Appellate Authority's order. The Judge observed:
'The revision was filed, as I said earlier, over 2 years
after the appeal was disposed of, but was admitted
and heard, because by a strange omission in the
statute, as both sides submitted, no period of
limitation is fixed in the matter of entertaining a
revision. Litigation can become a long-acting
torment if an order can be challenged years later on
the pre text that there is no period of limitation fixed
in the statute. Of course, it is for the Legislature to
remedy this lacuna, but it is certainly open to the
Revisional Court to decline to exercise its discretion
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when a party moves for relief after a period of
indiscrete delay.' (Padmanabha Pillai v. Narayana
Pillai)
13. It is well to remember at this stage that the
Limitation Act, 1908 had not prescribed any period
of limitation for a Revision Petition under S.115 of
the Code of Civil Procedure, 1908. Nevertheless it
had been the accepted rule of practice and
discretion in almost all High Courts that the party
aggrieved must approach the High Court for the
exercise of its revisional jurisdiction under S.115
within a period of 90 days, namely the period
prescribed for filing an appeal. (Vide Mulla on the
Code of Civil Procedure 14th Edition, Volume I, page
696, Note 37 and AIR Commentaries on the Code of
Civil Procedure 10th Edition Volume Two, page 388,
Note 17). This was the conventional period within
which any suitor was required to approach the High
Court, subject of course to extension of the time on
sufficient cause being shown. Any application for
revision beyond this period was treated as belated.
The Limitation Act of 1963 gave legislative
recognition to this conventional period by its Art.131
in the Schedule to the Act. Even a petition under
Art.226 of the Constitution has normally to be filed
within a period of 90 days. It has been so held in the
decisions in Vekitasubramonia Iyer v. Catholic Bank
of India Ltd. and Gopalakrishnan v.State of Kerala.
14. When this is the well established practice even
in relation to proceedings under S.115 of the Code
of Civil Procedure or Art.226 of the Constitution,
there is no reason why the Revisional Court should
be permitted to deal with a Revision Petition under
S.20 of the Act, without any limit of time.
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15. It must be observed here that expedition is the
watchword in proceedings under the Act. When S.24
hope fully prescribes a period of four months for
passing final orders by the Rent Control Court, and
S.18 prescribes a bare period of thirty days for filing
an appeal and a petition under Art.227 of the
Constitution which lies against the order of the
Revisional Court has ordinarily to be filed within
ninety days, it cannot be that the intermediate
authority, namely the Revisional Court alone should
have an unlimited period of time within which to
exercise its jurisdiction. The words 'at any time'
have to be delimited to reasonable levels having
regard to prevalent practice and the nature of the
power to be exercised. A period of ninety days
should be treated as the reasonable time within
which an aggrieved party should move under S.20.
Any delay thereafter has to be explained
satisfactorily before the court can be requested to
exercise its discretion in favour of the petitioner.
16. It is axiomatic that any authority exercising
discretionary powers should act reasonably.
Reasonableness is the touchstone of all judicial and
quasi judicial actions. (See in this connection:
Secretary of State v. Metropolitan Borough of
Tameside (1976 (3) All England Law Reports 665).
The District Court functioning under S.20 should
therefore, exercise its power in a reasonable
manner. Any delay in invoking the power makes its
exercise oppressive, arbitrary and unreasonable.
Since ninety days has all along been accepted as a
reasonable period for invoking the power of revision,
the District Court should act only if approached by
the aggrieved party within ninety days. That is not
to say that it will not, in appropriate cases, where
the delay is properly and satisfactorily explained,
interfere, or exercise its discretion, even if
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approached beyond this period. Sufficient cause
should be established in all such cases."
6. This decision was followed by a Division Bench of this
Court in Thomas v. Mukunda Menon (1992 (2) KLT 9). A Full
Bench of this Court in Moideeen Koya v. Kunhammed Haji
(1999 (2) KLT 646 FB), considered the above said decisions
and held that even if there was delay, court could entertain
the Revision Petition, if the same was explained properly.
7. The wordings of S.84 of the Co-operative Societies Act
and that of S.20 of the Buildings(Lease and Rent Control)
Act are similar, as much as in both the cases the discretion
is conferred on the concerned revisional authority to revise
the orders, provided the jurisdictional pre-conditions are
disclosed. S.29 of the Interpretation and General Clauses
Act, 1125 deals with the situation where a power is
conferred and no time limit is prescribed for the exercise of
the same. The said section reads as follows:
"29. Provisions when no time prescribed:
Where no time is prescribed or allowed within which
anything shall be done, such thing shall be done
with all convenient speed, and as often as the
prescribed occasion arises."
8. The occasion arises in this case only when the facts of a
particular case are brought to the notice of the Tribunal. A
Tribunal does not normally call for the records of the cases
decided by the arbitrators. So, here the delay is occasioned
in presenting the facts before the Tribunal to persuade it to
exercise its power under S.84. Therefore, the provisions of
S.29 will not govern the presentation of the petition for
revision, but may govern exercise of power by the Tribunal.
9. Since there is no binding decision on this point under
S.84, I think the principle laid down by this Court under
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S.20 of the Buildings (Lease and Rent Control) Act can be
safely followed in this case also. So, if a revision is filed
beyond a reasonable time limit, say 90 days, the petitioner
should explain in the revision, the reason for the delay.
Since there is no limitation prescribed, there need not be
any separate petition to condone the delay. The facts which
will explain the reasons for the delay should be pleaded in
the Revision Petition. If the Tribunal is satisfied that the
petitioner was prevented by good reasons from approaching
it earlier, the revision can be entertained." 2
Accordingly, I hold that till the legislature steps in to
determine the period of limitation for borrowers to initiate
proceedings under Section 69 of the 1969 Act challenging
the proceedings initiated under the CARD Act, such
applications will have to be filed without undue delay and
at any rate within a period of 90 days from the date on
which the cause of action accrues. This period is fixed as
the reasonable time within which a borrower facing legal
proceedings under the CARD Act must initiate proceedings
under Section 69 of the 1969 Act taking into consideration
the nature of the proceedings, the urgency of a prompt
resolution of disputes, and the fact that the proceedings
2The decision rendered by this Court in the case of Sarojini Amma (supra)
reiterates this position.
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under the CARD Act, which may be challenged by the
borrower, invariably involve third-party rights.
15. Since it has been held that borrowers facing
proceedings under the CARD Act may initiate proceedings
under Section 69 of the 1969 Act, in the event of any
dispute, it must also be determined whether the arbitrator
will have the power to grant a stay of proceedings pending
adjudication of the dispute. Section 70(6) of the 1969 Act
empowers the Registrar or any person invested with
powers in this behalf to pass necessary interlocutory
orders. Further, under Section 98 of the 1969 Act, the
Tribunal, Registrar, arbitrator or any other person deciding
a dispute under the 1969 Act is vested with all the powers
of a Civil Court while trying a suit under the Code of Civil
Procedure, 1908 in respect of specified matters.
Therefore, the petitioner can seek and obtain necessary
interim reliefs during the pendency of the adjudication of
the dispute, subject to satisfying the adjudicating authority
of the existence of grounds justifying the grant of an
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interlocutory order staying further proceedings. If an
application for interim relief is filed, the competent
authority will examine such application on the touchstone
of three well-settled parameters viz., prima facie case,
balance of convenience and irreparable injury. These
principles will govern the exercise of discretion either to
grant or refuse an application for interim relief. It is also
clarified that the competent authority has the discretion to
either deny an interim order or grant a conditional interim
order, after evaluation of the specific facts and
circumstances of each case.
16. In light of the above findings, this writ petition is
dismissed repelling the challenge made to the provisions of
Section 19 of the CARD Act. The Registrar of Co-operative
Societies shall, if necessary, and taking into consideration
the declaration of law in this judgment, issue appropriate
orders nominating the competent authority/arbitrator who
will have the jurisdiction to consider disputes raised in
respect of proceedings under the CARD Act. The dismissal
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of this writ petition shall not preclude the petitioner from
raising all disputes before the arbitrator under Section 69
of the 1969 Act. Since this Writ Petition has been pending
before this Court seeking reliefs as aforesaid, the
petitioner will be permitted to file a suitable application
under Section 69 of the 1969 Act, provided such
application is filed before the competent authority within a
period of one month from the date of receipt of a certified
copy of this judgment.
The Writ petition is ordered accordingly.
Sd/-
GOPINATH P.
JUDGE
ats
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APPENDIX OF WP(C) 33272/2025
PETITIONER'S EXHIBITS
Exhibit P1 THE TRUE COPY OF THE RECEIPT NO. 381 ISSUED
BY THE 6TH RESPONDENT DATED 20-04- 2018.
Exhibit P2 THE TRUE COPY OF THE RECEIPT NO.1085 ISSUED
BY THE 6TH RESPONDENT DATED 30-03- 2022.
Exhibit P3 THE TRUE COPY OF THE DEMAND NOTICE ISSUED
BY THE 6TH RESPONDENT DATED 6-12-2023.
Exhibit P4 THE TRUE COPY OF THE DEMAND NOTICE ISSUED
BY THE 6TH RESPONDENT DATED 7-2-2024.
ExhibitP5 THE TRUE COPY OF THE AUCTION NOTICE DATED
1-2-2024.
Exhibit P6 THE TRUE COPY OF THE ORDER ISSUED BY THE
JOINT REGISTRAR GENERAL, PATHANAMTHITTA
DATED 24-01-2025.
Exhibit P7 THE TRUE COPY OF THE LOAN RECEIPT SENT BY
6TH RESPONDENT DATED 31-03-2025.
Exhibit P8 THE TRUE COPY OF THE PHOTOS OF THE
PROPERTY, HOUSE AND SHOP OF THE PETITIONER.
Exhibit P9 THE TRUE COPY OF THE NOTICE DATED
1-12-2023 ISSUED BY THE 5TH RESPONDENT SALE
OFFICER.
Exhibit P10 THE TRUE COPY OF THE TAX RECEIPT ISSUED BY
THE VILLAGE OFFICER, CHETHAKKAL.
Exhibit P11 THE TRUE COPY OF THE POSSESSION CERTIFICATE
ISSUED BY THE VILLAGE OFFICER, CHETHAKKAL.
Exhibit P12 THE TRUE COPY OF THE CIRCULAR NO. 53/ 86
DATED 27-12-1986 ISSUED BY THE 2ND
RESPONDENT REGISTRAR OF CO-OPERATIVE
SOCIETIES.
Exhibit P 13 THE TRUE COPY OF THE PRESS RELEASE ISSUED
BY THE RESERVE BANK OF INDIA DATED
29-11-2017
Exhibit P14 THE TRUE PHOTOSTAT COPY OF THE SALE DEED
NO. 462/ 2025 OF RANNI S.R.O EXECUTED ON
23-4-2025
