Madras High Court
S.Krishnamoorthy vs Deputy Registrar Of Coop. ... on 10 January, 2023
C.R.P.No.1394 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.01.2023
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.No.1394 of 2020
and
C.M.P.No.8108 of 2020
S.Krishnamoorthy ... Petitioner
Vs.
1. Deputy Registrar of Coop. Societies,
Tiruchengode Circle,
Tiruchengode - 637211
Namakkal District.
2. No.S.351, The Tiruchengode
Agricultural Producers'
Cooperative Marketing Society Limited,
Rep. by its Special Officer,
Tiruchengode - 637211,
Namakkal District.
3. The Cooperative Sub-Registrar / Sale Officer,
No.S.351, The Tiruchengode
Agricultural Producers'
Cooperative Marketing Society Limited,
Mallasamudram Branch @ Kangeyam,
Kangeyam - 638701,
Tiruppur District. ... Respondents
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C.R.P.No.1394 of 2020
Civil Revision Petition is filed under Article 227 of the Constitution
of India, to set aside the Judgment and Decree made in C.M.A.(CS).No.13
of 2017 dated 19.11.2019 on the file of the Principal District Judge at
Namakkal, thereby dismissing the Appeal, confirming the award/decree
passed by the 1st respondent / Deputy Registrar of Cooperative Societies,
Thiruchengode Circle, Namakkal District in Tha.Va.No.56/2009-2010
dated 15.03.2010 and consequently remand back the case to the 1st
respondent to conduct de-novo enquiry and trial by providing opportunity
and records in accordance with law.
For Petitioner : Mr.K.Premkumar
For R1 : Mr.S.P.Karthik
Government Advocate
For R2 & R3 : Mr.L.P.Shanmugha Sundaram
Government Pleader
ORDER
This Civil Revision Petition has been filed against the judgment and
decree dated 19.11.2019 made in C.M.A.(CS).No.13 of 2017 on the file of
the Principal District Judge at Namakkal.
2. The petitioner herein is the appellant in C.M.A.(CS).No.13 of
2017 and the appeal was filed against the award passed by the 1st
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C.R.P.No.1394 of 2020
respondent / Deputy Registrar of Cooperative Societies, Thiruchengode in
Tha.Va.No.56/2009-2010 dated 15.03.2010.
3. The facts leading to filing of this petition are as follows :
i) The petitioner was an Associate Member of No.S.351, The
Tiruchengode Agricultural Producers' Cooperative Marketing Society
Limited and had business transaction with the said society as a Trader in
the purchase of Coconut Copra from 2002-2003. He severed the business
from the year 2004 by fully setting the accounts by getting clearance
certificate from the said society. While so, he received a notice dated
15.06.2012 from the 3rd respondent appointed by the 1st respondent
requiring him to remit a sum of Rs.4,01,485.16 being the money due from
him under an Award No.56/2009-2010 dated 15.03.2010 and followed by
an order of attachment dated 17.07.2012. Further, the 3rd respondent by his
proceedings dated 30.08.2012 has fixed the sale of the immovable
properties stated to have attached on 17.07.2012 and 05.10.2012 at
Nathakadaiyur in Kangeyam Taluk in Tiruppur District.
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C.R.P.No.1394 of 2020
ii) In the meanwhile, the petitioner caused an Advocate notice dated
23.08.2012 to the respondents herein disowning any liability to the 2nd
respondent society and the 2nd respondent herein has sent reply notice
dated 07.09.2012 through Advocate stating that an award has been passed
against the petitioner and hence by a letter dated 11.09.2012, the petitioner
requested the 1st respondent to furnish the copy of award dated 15.03.2010
made in No.56/2009-2010 but the petitioner neither received copy of
award nor any information even though the 1st respondent is duty bound
under law to send the award passed to the petitioner. However, the wife of
the petitioner applied to the 1st respondent under Right to Information Act
on 11.09.2012 for the supply of the copy of the award dated 15.03.2010
and it is received by her on 20.09.2012 and hence an appeal was filed
against the exparte award passed by the 1st respondent in
Tha.Va.No.56/2009-2010 dated 15.03.2010 and the consequential
attachment order against the immovable properties dated 17.07.2012 along
with the sale notice thereon dated 30.08.2012 passed by the 3rd
respondent. The said appeal was dismissed by the Appellate Court. Hence,
this C.R.P has been filed.
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C.R.P.No.1394 of 2020
4. The 2nd respondent has filed a counter affidavit stating that the
petitioner is the member of their Society and he is doing Coconut Kernal
(Copra) under the banner of M/s.Krishna Agencies. In the year 2008, the
respondent society has invited secret tender from its members for the sale
of Coconut Kernel. The petitioner had participated in the tender and
become successful bidder. The petitioner has purchased 272 bags of
coconut worth to Rs.5,05,566.24 and signed all the purchase bills by
accepting the terms and conditions of the society. He has failed to take
delivery of the above coconuts and kept the same in the godown of the
society. As per the tender condition in Clause No.2, the merchants who
purchase the agricultural produce through society either in open auction or
in secret bid tender should remit the purchase bill amount within 10 days
from the date of purchase. Otherwise, marketing service charges @ 15%
will be collected from the date of weighment chits up to a period of six
months. Merchants who fail to pay the dues within six months from the
date of purchase shall pay marketing service charges @ 18% from the date
of purchase.
5. It is further stated in the counter that the petitioner had accepted
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C.R.P.No.1394 of 2020
the above conditions and signed the same. Further, he had deposited the
title deeds of his properties towards the purchases made by him from the
society. Since he did not come forward to take delivery of the coconuts,
the respondent society re-tendered the said consignment to avoid further
loss. Due to re-tender, the society had realized a sum of Rs.3,11,001/-.
However, society had incurred loss of Rs.4,04,743.84 due to godown rent,
interest on the due amount, insurance and publication of re-tender etc., for
which the petitioner had submitted a cheque for Rs.4,04,710/- drawn in
favour of the society, which also bounced for want of funds. In this regard,
the respondent society had filed a criminal case in STC 218/2012 before
the Judicial Magistrate Court, Thiruchengode. Against which, the
petitioner had filed a Crl.O.P.No.241 of 2012 to quash the case which is
pending before this Court.
6. It is also stated in the counter that since the petitioner had not
come forward to clear the dues of Rs.5,05,616.24, the respondent society
had filed Arbitration claim against the petitioner before the Deputy
Registrar / 1st respondent herein under Section 90 of the Tamil Nadu
Cooperative Societies Act, 1983 on which an award for Rs.4,01,485.16
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C.R.P.No.1394 of 2020
was passed vide order dated 15.03.2010 in Tha.Va.No.56/2009-2010.
Further, the society had attached the properties of the petitioner under
conditional attachment under Section 167 on which a decree was also
passed by the authority vide Order No.6/2009-2010 dated 26.12.2009.
Thereafter, for execution of award, execution petition has been filed before
the authority and prescribed Form-6, Form-7 and Form-8 have been issued
for the sale of the property belongs to the petitioner. Moreover, it is stated
that against the award dated 15.03.2010 passed by the Arbitrator under
Section 90 of TNCS Act, the petitioner has filed CMA (CS) No.13 of
2017 before the Principal District Judge, Namakkal, which was dismissed
by the Court on the ground that he has not proved his case that he had
stopped his business with the society. Further, the arbitration authority had
given him sufficient opportunity but he has not appeared before him and
his contentions were not accepted. Hence, the the respondent prays for
dismissal of this petition.
7. The learned counsel appearing for the petitioner would submit
that he was not at all provided an opportunity to adduce evidence and the
documents required under Rule 107 of the Tamil Nadu Cooperative
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C.R.P.No.1394 of 2020
Societies Rules 1988 and the plea raised by him was not at all considered
by the Learned District Judge while dismissing his appeal. Further, he
would submit that the impugned award was passed by the 1st respondent
by conducting trial on 11.01.2010, 28.01.2010 and 15.03.2010, but the
petitioner was given summons only for the hearing on 11.01.2010 and due
to illness he could not attend on that date which was informed to the 1 st
respondent. Hence, the ex-parte award is liable to be set aside.
8. The Learned Special Government Pleader appearing for R2 & R3
has reiterated the averments made in the counter and sought for dismissal
of this petition as prayed for.
9. Heard the learned counsel for the petitioner, Learned Government
Advocate appearing for R1 and Learned Special Government Pleader
appearing for R2 and R3 and perused the materials on record.
10. It is an admitted fact that the petitioner is a member of the 2nd
respondent society and had business transactions with the said society
during the year 2002. The petitioner claims that he severed his business
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C.R.P.No.1394 of 2020
with the society in the year 2004 itself by fully settling the accounts. But,
on perusal of the materials on record, it is seen that the petitioner had
purchased 272 bags of coconut in the year 2008 from the 2nd respondent
society, which is worth about Rs.5,05,566.24. It is also seen that, after
purchase of the said coconuts, the petitioner had failed to take delivery of
the same, and due to this, the respondent society has incurred loss to the
tune of Rs.4,01,485.16.
11. It is further seen that a notice has been issued by the 2 nd
respondent on 28.10.2009 requiring the petitioner to pay a sum of
Rs.6,34,568.27 i.e. Rs.5,10,412.27 towards principal and Rs.1,24,156.00
towards interest, insurance and godown rent which was due as on
20.10.2009, for which, the petitioner has not sent any reply.
12. It was submitted by the petitioner that he was not at all provided
an opportunity by the 1st respondent to adduce evidence and the documents
required under Rule 107 of the Tamil Nadu Cooperative Societies Rules
1988. But, on perusal of the records, it is seen that the petitioner was given
summons for all the hearings that were conducted on 11.01.2010,
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C.R.P.No.1394 of 2020
28.01.2010 and 15.03.2010. In spite of the summons, the petitioner has not
chosen to appear and mark any document and therefore the exparte award
has been passed by only recording the evidences of the 2nd respondent
society. When the petitioner claims that he stopped his business with the
society in the year 2004, he should have appeared and proved his
contention before the 1st respondent itself by producing all the necessary
documents. But he neither appeared nor proved his contention before the
1st respondent and therefore the exparte award has been passed. Even
before the District Court, the petitioner has not chosen to file any
document to prove his claim and he has only sent a notice dated
23.08.2012 to the respondents stating that from 2004, there is no any
accounts between them. Therefore, this Court is not inclined to interfere
with the order passed by the Learned Principal District Judge in
confirming the award passed by the 1st respondent dated 15.03.2010.
13. Accordingly, this Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
10.01.2023
raja
Index : yes/no
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C.R.P.No.1394 of 2020
Internet : yes/no
Speaking order / Non-speaking order
To
1. The Principal District Court,
Namakkal.
2. The Deputy Registrar of Cooperaive Societies,
Tiruchengode Circle,
Tiruchengode - 637211
Namakkal District.
2. The Special Officer,
No.S.351, The Tiruchengode
Agricultural Producers'
Cooperative Marketing Society Limited,
Tiruchengode - 637211,
Namakkal District.
3. The Cooperative Sub-Registrar / Sale Officer,
No.S.351, The Tiruchengode
Agricultural Producers'
Cooperative Marketing Society Limited,
Mallasamudram Branch @ Kangeyam,
Kangeyam - 638701,
Tiruppur District.
V.BHAVANI SUBBAROYAN.J.,
https://www.mhc.tn.gov.in/judis
C.R.P.No.1394 of 2020
raja
C.R.P.No.1394 of 2020
and
C.M.P.No.8108 of 2020
10.01.2023
https://www.mhc.tn.gov.in/judis
