Madras High Court
D.Muthukrishnan vs The Principal District ... on 22 April, 2022
W.P.No.651 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.04.2022
CORAM
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.651 of 2010
and
M.P.No.2 of 2010
D.Muthukrishnan ... Petitioner
Versus
1.The Principal District Jude/Cooperative Tribunal,
Coimbatore – 641 018.
2.The Deputy Registrar of Cooperative Societies,
Pollachi Circle, Pollachi – 642 001.
3.K-184/5769, Tiruppur Agricultural Producers'
Co-operative Marketing Society,
Palladam Road, Tiruppur – 641 604. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India to issue a Writ of Certiorari, to call for the entire records relating to
the impugned Judgment and Decree passed by the Tribunal made in
Coop.C.M.A.No.7/2009, 29.10.2009 confirming the Surcharge orders
passed by the second respondent in his proceedings Tha.Thee.No.5/2007
Sa.Pa., dated 10.05.2008 and quash the same as unlawful and null and void.
For Petitioner : Mr. K. Permkumar
For Respondents : Mr.P.Muthukumar, Government Pleader.
Assisted by Mr.M.Alagu Gowtham. (for R2)
: Ms. N.R.Jasmine Padma (for R3)
: No Appearance (for R1)
1/9
https://www.mhc.tn.gov.in/judis
W.P.No.651 of 2010
ORDER
This Writ Petition is filed by the petitioner, who was originally
working as a Special Officer in respect of the third respondent cooperative
society, since retired, challenging the order of surcharge Order under
Section 87 of the Tamil Nadu Cooperative Societies Act by the second
respondent, dated 10.05.2008. Thereby the petitioner was held to be
responsible for the loss of a sum of Rs.1,29,679.25/- from one M/s.Super
Cotton Traders and directing that sum of Rs.1,29,679.25/- to be paid by the
petitioner with interest at the rate of 18% per annum. The Appellate
Tribunal-cum-Principal District Judge, Coimbatore, in the appeal preferred
by the petitioner under Section 152 of the Tamil Nadu Cooperative
Societies Act, dated 29.10.2009, thereby dismissing the appeal filed by the
petitioner and confirming the order of surcharge, which is also under
challenge in the present writ petition.
2.Heard Mr.Premkumar, learned counsel for the petitioner and
Mr.P.Muthukumar, learned Government Pleader, appearing on behalf of
the second respondent and Ms.N.R.Jasmine Padma, learned counsel
appearing for the third respondent.
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W.P.No.651 of 2010
3.Mr.Premkumar, learned counsel for the petitioner would submit
that firstly, the charge against the petitioner in the surcharge proceedings
that he caused loss against the society is factually erroneous and cannot be
matter of surcharge because the society raised a dispute before the Deputy
Registrar in dispute No.189/98-99, by Judgment dated 25.09.1998, it was
concluded that there was no loss to the society on account of the said
M/s.Super Cotton Traders. It is useful to extract the operative portion of the
said award hereunder:-
"gpujpthjp tl;o KGtija[k; js;Sgo
bra;af;nfhUk; nfhupf;if Vw;fg;gltpy;iy/
thjp r';fk; jdJ 25/9/98k; njjpa fojg;go
gpujpthjpa[k; tl;oahf kl;Lk; U:/3.63.781/00-?
tR{y; bra;ag;gl;ljhft[k; jw;nghJ ,d;Dk;
U:/47.453-? tl;o tR{y; bra;tjhy; r';fj;jpw;F
gpujpthjpahy; ,Hg;g[ VJkpy;iy vdt[k;
bjuptpj;Js;sJ/ gpujpthjp tl;oapidf;
Fiwj;J brYj;Jtjhf ,Ue;jhy; ,d;nw xnu
fhnrhiy K:yk; brYj;Jtjhft[k; rk;kjk;
bjuptpj;Js;shu;/ ,Ujug;gpdUk; fzf;fpid
neu; bra;J bfhs;tjhf
xg;g[f;bfhz;Ltpl;lgoahYk; jhth tHf;F
iftplg;gLfpwJ vd ,e;ePjpkd;wk;
MizapLfpwJ/"
4.The second contention of the learned counsel for the petitioner is
that admittedly the award itself was passed on 25.09.1998. All these
transactions are prior to the year 1998. That being the position, the
surcharge proceedings were initiated for the first time by notice dated
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W.P.No.651 of 2010
05.10.2007 beyond the period of limitation as prescribed by the proviso
under Section 87(1) of the Cooperative Societies Act and therefore, it is
hopelessly barred by the limitation.
5.The learned Government Advocate appearing for the respondents
one and two would submit that the plea of limitation being a mixed question
of fact and law, ought to have been raised at the earliest point of time. The
petitioner was given ample opportunity to defend the surcharge proceedings
and he has not resisted the same by taking the specific plea of limitation.
Further, also in the appeal filed before the Appellate Tribunal, the plea of
limitation was not raised. Therefore, at this point of time, the plea of
limitation cannot be permitted to be raised.
6.The learned counsel appearing on behalf of the Cooperative Society
would submit that only because of the action of the petitioner herein in
expressly waiving the interest, in the dispute filed by the Cooperative
Society, the defendant was able to take defense and on the basis of which
this dispute was dismissed. Therefore, the contention of the learned counsel
that because of the award the surcharge proceedings are bad cannot be
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W.P.No.651 of 2010
countenanced by this Court.
7.I have considered the rival submissions made on behalf of both
sides and perused the material records on this case.
8.As rightly pointed out by the learned counsel for the respondents, it
cannot be said that just because an award was passed holding that there was
no loss to the society on account of the said trader, it cannot br contended
that no charge can be even alleged or framed against the petitioner by way
of surcharge proceedings. The defense of the said trader was accepted,
because of the fact that the belated period interest was specifically waived
by the petitioner, who being the authority on behalf of the society.
Therefore, I am not in agreement with the contention of the learned counsel
for the petitioner in this regard.
9.However, on the question of limitation, this is a case, where the
respondents cannot even plead any due to subsequent knowledge as all the
facts were unearthed before 1998 and even the award passed in the year
1998. Therefore, the period of limitation unequivocally and unambiguously
expires in the year 2005 itself, there is no doubt whatsoever regarding the
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W.P.No.651 of 2010
same. When the plea of limitation is crystal clear without any further
explanation, then in such a case, it is held to be purely a question of law and
it is not a mixed question of law and fact. The Hon'ble Supreme Court of
India, Kamalesh Babu and Ors Vs. Lajpat Rai Sharma & Ors1, has held as
follows :-
“ 21. ..... Further, as far back as in 1943, the Privy
Council in the case of Lachhmi Sewak Sahu vs. Ram Rup Sahu &
Ors. [AIR 1944 Privy Council 24] held that a point of limitation
is prima facie admissible even in the court of last resort,
although it had not been taken in the lower courts.
22. The reasoning behind the said proposition is that
certain questions relating to the jurisdiction of a Court, including
limitation, goes to the very root of the Court's jurisdiction to
entertain and decide a matter, as otherwise, the decision
rendered without jurisdiction will be a nullity.”
As is similar in this case, Section 87 of the Co-operative Societies Act is a
special and enabling provision which also provides for limitation and the
authority would lack jurisdiction on the expiry of the time. There is nothing
to suggest even a remote possibility as to the dispute of fact in the present
case and therefore, in the present case, the petitioner's contention cannot be
rejected. Further, a division bench of this Court in N. Ravindran Vs. V.
Ramchandran2, has held that when the facts of the case is writ large, the
1 (2008) 12 SCC 577
2 2011 SCC OnLine Mad 401
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W.P.No.651 of 2010
principle as to mixed question of fact and law is not applicable.
10.This being the position, the surcharge proceedings initiated after a
period of nine years and one month is hopelessly barred by limitation and
the respondents have no answer to the same on merits except to contend
that, that is not raised at the earliest point of time. Therefore, there is merit
in the contention raised by the learned counsel for the petitioner and
accordingly this petitioner is entitled to succeed, therefore, the Writ Petition
is allowed on the following terms:-
i) The impugned order of the first respondent / the Tribunal, dated
29.10.2009 and the impugned order of the second respondent, dated
10.05.2008 are quashed.
ii) However, there will be no order as to costs. Consequently, the
connected miscellaneous petition is closed.
22.04.2022
Index : Yes/No
Speaking/Non-Speaking Order : Yes/No
klt
To
1.The Principal District Jude/Cooperative Tribunal,
https://www.mhc.tn.gov.in/judis
W.P.No.651 of 2010
Coimbatore – 641 018.
2.The Deputy Registrar of Cooperative Societies,
Pollachi Circle, Pollachi – 642 001.
3.K-184/5769, Tiruppur Agricultural Producers'
Co-operative Marketing Society,
Palladam Road, Tiruppur – 641 604.
https://www.mhc.tn.gov.in/judis
W.P.No.651 of 2010
D.BHARATHA CHAKRAVARTHY. J.,
klt
W.P.No.651 of 2010
and
M.P.No.2 of 2010
22.04.2022
https://www.mhc.tn.gov.in/judis
