V.Sujatha vs The Deputy Registrar Of ...
2021 Latest Caselaw 15427 Mad

                                                     1

                            IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                          DATED : 02.08.2021

                                                   CORAM

                          THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH

                                         W.P No.13492 of 2020

               V.Sujatha                                                              Petitioner

                                                    vs.

               1.The Deputy Registrar of Co-operative Societies,
                 Dharmapuri Circle,
                 Dharmapuri.

               2.T.T.25, Dharmapuri Co-operative Press,
                 Rep. by its President,
                 No.84, Industrial Park,
                 Dharmapuri – 5.

               3.The Sub Registrar,
                 Parur,
                 Dharmapuri District.                                           Respondents



               Prayer: Writ Petition filed under Article 226 of the Constitution of India for

               issuance of a Writ of Mandamus, directing the respondents to raise the

               order of attachment of the petitioner property in S.No.188 measuring

               2.98.0 Hectare Pallipatti Village, Harur Taluk, Dharmapuri District.



                                 For Petitioners   : Mr.M.S.Palaniswamy
                                 For Respondents : Mr.L.P.S.Shanmuga Sundaram
                                                   Special Government Pleader
                                                   for R1 & R2

                                                    Mr.A.Selvendiran
                                                    Government Advocate for R3
http://www.judis.nic.in
                                                            2


                                                         ORDER

The subject matter of challenge in the present writ petition is the

attachment order passed by the 1st respondent dated 22.09.2016.

2.The case of the petitioner is that the subject property originally

belonged to her husband who is said to have derived his right from his

grand father and this property was settled if favour of the petitioner by

virtue of a registered settlement deed dated 09.07.2014. The petitioner

applied for an encumbrance certificate before the 3rd respondent and found

that the 1st respondent has passed an order attaching the subject property

through proceedings dated 22.09.2016. Aggrieved by the same, the

present writ petition has been filed before this Court.

3.The 1st respondent has filed a counter affidavit and additional

counter affidavit. The relevant portions in the counter affidavit are

extracted hereunder:

4.It is humbly submitted that the petitioner herein viz., Tmt.V.Sujatha is the wife of Thiru.K.V.Senthilkumar, who is the son of Thiru.K.Viswanathan, the President of D.D.25 Dharmapuri Co-operative Press and during this tenure as the President of the press Thiru.K.Viswanathan has caused loss to the press.

http://www.judis.nic.in

5.It is submitted that for the loss caused by

Thiru.K.Viswanathan, President of the Co-operative Press, pending and herein proceedings in ARC.3391/16/SaPa1, dated 22.09.2016, notice in ARC.3391/16/SaPa1, dated 22.09.2016, was issued under Section 167(1) of Tamilnadu Co-operative Societies Act, 1983 to Thiru.K.Viswanathan to furnish security to the tune of Rs.10,00,000/- and under Section 167(2) of Tamilnadu Co-operative Societies Act, 1983 order of attachment of the properties standing in the name of Tmt.Sujatha, W/o.Thiru.K.V.Senthilkumar who is the son of Thiru.K.Viswanathan former President of the Dharmapuri Cooperative Press viz and in patta No.716, S.No.188, 2.98.0 Hectare at Pallipatti Village, the said notice and the order have been issued by the Deputy Registrar of Cooperative Societies, Dharmapuri.

6.It is humbly submitted that the petitioner's husband Thiru.K.V.Senthilkumar is legal heir of Thiru.K.Viswanathan, President of the Cooperative Press and he is legally liable to make good the loss caused by his father. It is submitted that Thiru.K.V.Senthilkumar in order to avert legal action against him, has cunningly transferred the land by way of settlement deed registered on 09.07.2014 in Document No.735 on the file of Sub Registrar, Parur. It is submitted that the said land is not belong to the petitioner and therefore, the conditional attachment passed by the Deputy Registrar of Cooperative Societies, Dharmapuri is legally valid.

7.It is humbly submitted that the Present Writ Petition filed against the conditional attachment is not maintainable. The Writ Petitioner has to prefer her claim or make objection before

http://www.judis.nic.in the sale officer to the attachment stating the ground upon

which she claims that such property is not liable for attachment and if such claim or objection is made, the sale officer shall investigate the claim or objection and dispose of it on merits as per the provision of Rule 135 of Tamil Nadu Co-operative Societies Rules, 1983.

4.The relevant portions in the additional counter affidavit are

extracted hereunder:

5.In Paragraph (5) of the affidavit, the petitioner has stated that her husband Thiru.K.V.Senthilkumar has executed a settlement deed dated 09.06.2014 in her favour. It is submitted that the property settled by Thiru.K.V.Senthilkumar to his wife, the petitioner herein originally belonged to Thiru.K.Viswanathan, Thiru.K.V.Senthilkumar, the husband of the petitioner having the knowledge about the involvement of his father in the affairs of the society, has executed the settlement deed to his wife, to avert attachment of the property in Survey No.188 measuring 2.98.0 hectare in Pallipatti Village, Morappur Taluk, Dharmapuri District.

6.As regards the averments contained in Paragraph (6) of the affidavit, it is submitted that the Deputy Registrar of Cooperative Societies, Dharmapuri in notice under Section 167(1) of the Tamil nadu Cooperative Socieites Act, 1983, bearing no.ARC No.3391/16/SF1, dated 22.09.2016 has been issued to Tmt.Sujatha, relative of Thiru.K.Viswanathan to furnish security to the sum of Rs.10,00,000/- towards the arbitration claim initiated for the recovery of loss caused by http://www.judis.nic.in Thiru.K.Viswanathan former President of the Cooperative Press

failing which conditional attachment order will be issued. The notice issued legally valid.

7.As regards the averments contained in Paragraph (7) of the affidavit, it is submitted that though Thiru.K.Viswanathan died on 10.03.2013, the conditional attachment notice was issued for attaching the property standing in the name of the petitioner Tmt.Sujatha, to whom the property by originally belonged Thiru.K.Viswanathan was settled in favour of the petitioner by the husband of Thiru.K.V.Senthilkumar, the son of Thiru.K.Viswanathan. It is submitted that though Section 90(3)(a)(ii) of the Tamilnadu Cooperative Societies Act, 1983, prescribes the period of limitation of 6 years for initiating arbitration, clause (b) of sub section 9(a) of Section 90 of the Tamilnadu Cooperative Societies Act, 1938, empowers the Registrar to admit the dispute after the expiry of the period of limitation. It is therefore submitted that in view of this provision, the conditional attachment notice and the conditional attachment order are legally valid.

5.The learned counsel appearing on behalf of the petitioner

questioned the very maintainability of the ARC proceedings initiated under

Section 90 of the Co-operative Societies Act in the year 2016 on the

ground that it has been initiated against a dead person viz., K.Viswanathan

who had died as early as on 10.03.2013. That apart, it was further

submitted that the property in question does not belong to the above said

K.Viswanathan and it absolutely belongs to the husband of the petitioner

who derived the right from his grand father. Therefore, the learned counsel http://www.judis.nic.in for the petitioner submitted that the property which does not belong to

Mr.K.Viswanathan has been illegally attached by the 1st respondent. The

learned counsel further submitted that Section 90 (9)(a)(ii) of the Co-

operative Societies Act specifically provides for a time limit for taking any

action, which is six years from the date on which an act or omission with

reference to the dispute arose and in this case, the alleged

misappropriation/loss was caused to the Society during the period 1996 to

2000 and the proceedings have been initiated in the year 2016. Therefore,

the proceedings itself is barred by the limitation. The learned counsel

therefore submitted that the continuation of the order of attachment is

illegal and is liable to be raised by passing an order in this writ petition.

6.Per contra, Mr.L.P.Shanmuga Sundaram, learned Special

Government Pleader appearing on behalf of the 1st respondent submitted

that the above said K.Viswanathan was the President of the Society during

the period from 1998 till 2001 and he was involved in misappropriation and

had caused loss to the Society. It was further submitted that an enquiry

was ordered under Section 81 of the Co-operative Societies Act in the year

2002 and a report was submitted on 15.07.2002 by the Enquiry Officer by

finding that a sum of Rs.41,69,593.79/- was the total loss that was

suffered by the Society during the relevant period. The learned counsel

further submitted that, pursuant to this report, sur-charge proceedings

were initiated under Section 87 of the Act against the said Viswanathan

and five others and an order was passed on 06.04.2008. After the sur- http://www.judis.nic.in charge order was passed, proceedings were initiated for executing the

order on 30.04.2008 and a petition was also filed before the 1st respondent,

which was taken on file in Petition No.14/2008-2009. It was submitted that

the loss that was ascribed as against the above said Viswanathan was to

the tune of Rs.9,61,595.30/- along with 21% interest. A specific stand was

taken to the effect that the execution proceedings are pending.

7.The learned counsel appearing on behalf of the 2 nd respondent

submitted that the property in question belonged to K.Viswanathan and it

was inherited by his son which in turn was settled in favour of the

petitioner and therefore, this property is subject to attachment for the

purpose of recovering the loss that was caused to the Society. It was

further submitted that the petitioner need not have rushed to this Court by

filing the present writ petition and it was always open to the petitioner to

make his claim/objections against the attachment of the property under

Rule 135 of the Co-operative Rules, 1988. It was therefore submitted that

in view of an alternative remedy available to the petitioner, the present

writ petition is not maintainable before this Court. The learned counsel in

order to substantiate this submission, also relied upon the judgment of the

Division Bench of this Court in the case of E.Kalivani vs. Deputy

Registrar, The Cooperative Society and Another reported in 2019

SCC OnLine Mad 8436. By placing reliance upon this judgment, the

learned counsel submitted that this Court did not entertain a writ petition

of a similar nature and the petitioner was directed to make the objections http://www.judis.nic.in under Rule 135 before the appropriate authority.

8.This Court has carefully considered the submissions made on either

side and also the materials available on record.

9.The 1st respondent has come up with a clear case that even during

the life time of K.Viswanathan, enquiry was ordered under Section 81 of

the Act and a report was also submitted by the Enquiry Officer dated

15.07.2002 wherein the total loss caused to the Society was assessed at

Rs.41,69,593.79/- It is further stated that sur charge proceedings were

initiated under Section 87 of the Act against K.Viswanathan and five others

and final order was also passed on 06.04.2008. Pursuant to the said order,

proceedings were also initiated for execution and it is said to be pending

before the 1st respondent in Petition No.14/2008-2009. A specifed amount

has been fixed against the said K.Viswanathan to the tune of

Rs.9,61,595.30/- along with 21% interest.

10.It is not known as to why the respondents did not proceed further

with the execution proceedings and in spite of the expiry of the said

Viswanthan in the year 2013, proceeded to initiate ARC proceedings under

Section 90 of the Act in the year 2016. It is beyond dispute that such

proceedings cannot be initiated as against a dead person. Therefore, even

without going into the issue of limitation, such proceedings on the face of it

smacks with illegality. When the very basis of the proceedings is found to http://www.judis.nic.in be illegal, this Court need not drive the petitioner to avail alternative

remedy under Section 135 of the Co-operative Societies Rules. The order of

attachment pursuant to initiation of ARC.3391/16, cannot stand the test of

law and it requires the interference of this Court.

11.When already execution proceedings have been initiated and it is

pending from the year 2008 and it is the case of the respondent that the

property in question belongs to the deceased K.Viswanathan, it is not

known as to why they cannot proceed further with the execution

proceedings and attach the property and recover the amount. It is not

known as to whether the ARC Proceedings were initiated in ignorance of

the pending execution proceedings before the 1st respondent.

12.The Society has incurred a huge loss and it has to be recovered.

Whether the property in question belonged to K.Viswanathan originally and

thereafter, it was settled in favour of the petitioner or the property belongs

to the grand father of the husband of the petitioner and thereafter, it was

settled in favour of the petitioner, are questions which can be decided by

the appropriate authority when the property is attached and objections are

made in the pending execution proceedings. This Court need not render

any findings in this regard. It goes without saying that as and when any

such steps are taken, the petitioner has to be put on notice since, she has

become the owner of the property by virtue of the registered settlement

deed dated 09.07.2014.

http://www.judis.nic.in

13.In view of the above discussion, there shall be a direction to the

2nd respondent to proceed further with the execution proceedings pending

in Petition No.14/2008-2009 for recovery of the loss sustained by the

Society. In the course of the execution proceedings, it will always be left

open to the 2nd respondent Society to the attach any property that

belonged to the deceased K.Viswanathan. If the subject property is also

made a subject matter of attachment in the execution proceedings,

sufficient opportunity shall be given to the petitioner to make her

objections as against the attachment. This process shall be completed by

the 1st and 2nd respondents, within a period of six weeks from the date of

receipt of copy of this order. Since this Court has interfered with the ARC

proceedings, the order of attachment shall be kept in abeyance till a final

decision is arrived in the execution proceedings.

14.This writ petition stands allowed with the above directions. No

Costs.

                                                                       02.08.2021
         Speaking Order/Non-Speaking Order
         Index     : Yes/No
         Internet  : Yes/No
         ssr


         To

1.The Deputy Registrar of Co-operative Societies, Dharmapuri Circle, Dharmapuri.

http://www.judis.nic.in

2.T.T.25, Dharmapuri Co-operative Press, Rep. by its President, No.84, Industrial Park, Dharmapuri – 5.

3.The Sub Registrar, Parur, Dharmapuri District.

http://www.judis.nic.in

N. ANAND VENKATESH, J.

ssr

W.P No.13492 of 2020

02.08.2021 http://www.judis.nic.in