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1998 DIGILAW 1337 (MAD)

PARAVAKOTTAI VILLAGE CO-OP. AGRICULTURAL LOAN SOCIETY. v. J. KARTHIKEYAN

1998-10-08

K.P.SIVASUBRAMANIAM

body1998
Judgment :- K.P. SIVASUBRAMANIAM, J. ( 1 ) THIS second appeal is directed against the judgment of the Subordinate Judge, Pattukottai in A. S. No. 25/84 reversing that of the learned District Munsif, Mannargudi in O. S. No. 268/82. ( 2 ) THE defendant in the suit, Paravakottai Village Cooperative Agricultural Loan society by its Secretary is the appellant in the present Second appeal. ( 3 ) THE suit was filed by the plaintiff/respondent for permanent injunction to restrain the defendant from attaching any of the properties belonging to the plaintiff from enforcing the Award Nos. ARC 38/1976-77 and arc No. 1702/1979-80 on the file of the Arbitrator of Cooperative Societies. It is not necessary to deal with the merits of the mutual contentions on the correctness of the claim made by the defendant/appellant resulting in the filing of the present suit, in view of the decision to be taken in the context of the objection by the defendant pertaining to the jurisdiction of the Civil Court to entertain the above suit. The facts required for the said decision would be that the plaintiff is the son of one Jayarama Thevar and his wife Manimekalai ammal who were permanent residents of Paravakkottai Village. The plaintiffs parents had borrowed loans from the defendant and accordingly Jayarama thevar is said to owe Rs. 5091/-to the defendant under loan No. S. T. 2587 and Manimekalai is said to owe Rs. 6750/-under loan No. S. T. 0486. Decrees have also been passed against both of them. Hence the defendant sought to attach the properties pertaining to the award passed by the Arbitrator under the Tamil Nadu Co-operative Societies Act, Tamil Nadu Act 53/61. According to the plaintiff, the proposed attachment was illegal and hence the suit. ( 4 ) THE defendant while denying the claims of the plaintiff on the merits, also contended that the suit itself was not maintainable as the Civil Court has no Jurisdiction as mandated under Section 100 of the said Act. Balance of convenience was also not in favour of granting any injunction and the plaintiff was not entitled to any injunction in respect of awards passed by the competent authority under the provisions of the Act. The plaintiff even otherwise was entitled to other reliefs even if the properties were exempted under Section 60 of C. P. C, or attached under the provisions of Act. The plaintiff even otherwise was entitled to other reliefs even if the properties were exempted under Section 60 of C. P. C, or attached under the provisions of Act. 53/1961 and hence the suit was misconceived. On the question of maintainability of the suit, the trial Court agreed with the objection taken by the defendant arid held that the Civil suit was not maintainable. However, on appeal, the learned appellate Judge held that the nature of the suit as filed by the plaintiff was not barred by the provisions of the Act and hence the suit was maintainable. The lower appellate Court further held that the defendant cannot seek to attach the properly belonging to the plaintiff with reference to the loans payable by his parents. Hence the present Second Appeal. ( 5 ) THE only issue which arises for consideration is as regards whether the suit is maintainable in view of the bar under Section 100 of Act 53/1961. ( 6 ) UNDER Section 100 of the said Act, it is held that no order or award passed, decision or action taken or any direction issued under the Act by an arbitrator, the Liquidator, the Registrar or an officer authorised or empowered by him or the Tribunal or any officer, subordinate to him shall be liable to be called in question in any Court. ( 7 ) MR. K. Yamunan, the learned Counsel appearing for the appellant besides relying on the said provisions would also refer to various other provisions in the Act and the Rules which provide to the aggrieved party adequate remedy to pursue his objections as regards the question as to whether the property belonging to the plaintiff could be attached or not and that therefore, the plaintiffs recourse to the Civil Court was statutorily barred. As regards the liability of the legal heirs of the deceased, the learned Counsel refers to the explanation to Section 73 of the Act. The Explanation provides that the dispute shall include any claim by the Registered Society for any debt or demand due to it from the member or past member or the nominee or the heir or the legal representative of the deceased member where such debt or demand was admitted or not. The Explanation provides that the dispute shall include any claim by the Registered Society for any debt or demand due to it from the member or past member or the nominee or the heir or the legal representative of the deceased member where such debt or demand was admitted or not. Therefore, according to the learned Counsel, the plaintiff was liable to make good the award and that the suit as filed by the plaintiff was not maintainable. In support of his contentions, the learned Counsel has also referred to the following rulings. 7-A. In 1975 (II) MLJ 439 : 88 LW 510; Krishnaswami Gounder v. Jambuthurai Kottai Cooperative Society by its President and others S. Mohan j. (as he then was) has held that Section 100 of Act 53/61 resulted in ouster of the jurisdiction of the Civil Court in a matter pertaining to properties which were attached and brought to sale. In that case when the plaintiff sought to take delivery of possession he was obstructed by the defendant-Society which had earlier obtained an award before the Deputy Registrar of Cooperative societies and had purchased the property in question in execution thereof. The plaintiffs suit for possession was decreed and on appeal this Court held that Section 100 of Act 53/1961 was a bar for the Civil Court to exercise its jurisdiction. In the case reported in 1989 (1) MLJ 360 : 1989 (1) LW 203 ; V. Rajamani v. The Cooperative Sugars Ltd. , Chittur, the Division Bench of this court held that the suit by the Society against a member complaining breach of agreement fell within the provisions of Section 73 of the Act and it would be an issue over which the Civil Court can have no Jurisdiction. The said judgment was also rendered in the context of Section 73 of the Act. ( 8 ) IN (1982) 95 LW 586 , K. Sambandam v. Sirkali Cooperative Urban bank Ltd. , the then Officiating Chief Justice, Gokulakrishnan J. , held that in respect of an award passed under the Cooperative Societies Act, the aggrieved party must challenge the award in appropriate proceedings under the Act and the Civil Court cannot go behind the award in execution proceedings under section 100 of the Cooperative Societies Act. ( 9 ) IN another judgment of this Court reported in 1990 (I) MLJ 156 ; baghavathy Ammal v. The Chinglepet Co-operative House Building Society limited, KM. Natarajan, J. dealt with case of suit by a Cooperative Society claiming relief of declaration of title and recovery of possession from the first defendant who was an allottee of a plot on the ground that the first defendant has executed a sale deed in favour of the second defendant, and it was held that when there was adequate remedy by way of appeal and only the forums created under the Tamil Nadu Cooperative Societies Act alone will have jurisdiction to try the dispute in question, ( 10 ) PER contra, Mr. K. Raghunathan, Counsel for the respondent states that the present suit has been filed only for an injunction and that such a. suit was not barred by Section 100 of the Act. He would also contend that the property exclusively belonged to the plaintiff and did not belong to the debtor and hence the property could not be attached and that the bar of Civil Courts jurisdiction under Section 100 will not arise against the legal representatives. He would also rely on the judgment of a learned Single Judge of this Court reported in (1982) 95 LW 178 ; Madurai District Co-operative Supply and marketing Society Ltd. v. S. Sankaranarayanan and others. That was a suit filed by the dismissed employees of the Co-operative Society in questioning the domestic enquiry instituted by the Society against them. The learned judge after considering the judgment of the Supreme Court in Premier automobiles v. K. S. Wadke. (1975) 48 FJR 252, held that where the dispute did not touch any right conferred liability imposed under the Industrial disputes Act, but arises out of a controversy regarding the right or liability under the General Law, the jurisdiction of the Civil Court was not ousted. ( 11 ) AN examination of the provisions of the Tamil Nadu Co-operative societies Act, 1961 as well as the Rules framed thereunder would show that the said Act is a self-contained code in which a hierarchy of authorities is provided inclusive of a Cooperative Tribunal under Section 95 of the Act, for the adjudication of disputes or claims under the Act. Disputes are defined under Section 73 of the Act which include awards by the arbitrators empowered under the Act to consider the claims as stated earlier. The explanation to the said Section also makes the nominees, heirs, or legal representatives of the deceased debtor as liable to be proceeded against. Section 91 deals with the power of the Registrar to recover the amount due to the Society by attachment and sale of the property. In the Rules framed under the Act, Rule 59 deals with procedures in execution of decree, decision or award. Rule 67 deals with procedure for attachment and sale of immovable property. All these provisions deal elaborately with the procedures pertaining to not only the execution of the awards out also the courses open to the aggrieve persons to pursue their remedies and to substantiate their objections against the attachment or sale as the case may be. Under Rule 76 where no claim is made, an objection can be made to the attachment of any property on the ground that such property was not liable to such attachment, whereupon the sale officer shall investigate the claim or objection and dispose it off on merits. On the passing of any such order by the sale officer, it is open to the aggrieved party to institute a suit within six months from the date of the order to establish his right. ( 12 ) THEREFORE, assuming that the plaintiff has sustainable objections as against the award made against his parents, the provisions of the Act and rules provide adequate remedy as against the claim. A hierarchy of appellate authorities is also provided thereunder including the right of the party to institute a suit within a period of six months from the date on which the order was passed in his application or objection claiming that the property was not liable for attachment. Therefore, it is clear that the provisions of the Act are a self contained code prescribing a proper procedure and as such the bar of the Civil Court under Section 100 of the Act would be undoubtedly attracted in the case of the plaintiff. The ruling referred to by Mr. Therefore, it is clear that the provisions of the Act are a self contained code prescribing a proper procedure and as such the bar of the Civil Court under Section 100 of the Act would be undoubtedly attracted in the case of the plaintiff. The ruling referred to by Mr. Ragunathan, the learned counsel for the respondent is a decision rendered on the provisions of the Industrial Disputes Act and the decisions was based on the issue as to whether the relationship between the employer and the employee in that particular case was governed by the provisions of the Industrial Dispute Act or not and whether the reliefs were enforceable under the General Law. Therefore, the said decision cannot have any relevance to the issues in the present case pertaining to the Act 53/1961. ( 13 ) THEREFORE, it follows that the suit filed by the plaintiff has to be held as barred by Section 100 of Act 53/1961 and the plaintiff is not entitled to seek his remedy as prayed for. ( 14 ) THE learned Counsel for the respondent also contended that the bar under Section 100 will not arise against the legal representatives. This issue his already been dealt with and adequately answered by the explanation to section 73 of the Act. ( 15 ) THE learned Counsel also contends that the property exclusively belonged to the plaintiff himself and therefore it did not belong to the estate of the deceased and hence cannot be the subject-matter of attachment under the provisions of the Act. It cannot be disputed that the plaintiff is entitled to raise this objection before the appropriate authority and it is within the jurisdiction of the said authority to consider the objections and to deal with the objections on the merits. ( 16 ) FURTHER, having regard to the fact that the plaintiff had approached the Civil Court directly without approaching the competent authority provided under the Act, the question is whether the plaintiff should be deprived of his right to pursue his remedy under the Act. Section 95 of the Act provides the hierarchy of authorities before whom appeals could be filed as against the various orders and awards to be passed under the Act and a period of limitation of two months is prescribed under Section 95 (3 ). Section 95 of the Act provides the hierarchy of authorities before whom appeals could be filed as against the various orders and awards to be passed under the Act and a period of limitation of two months is prescribed under Section 95 (3 ). The said provision also gives power to the appellate authority to condone the delay in filing such appeal and to entertain the same, in the event of appellant showing sufficient cause for not preferring the appeal within the said period. Therefore having regard to the fact that the plaintiff states that he has been pursuing the remedy before the Civil Court in a bona fide manner he may be permitted to file and appeal before appropriate authority. Having regard to the circumstances and the facts of the case and that the plaintiff cannot be deprived of raising his legitimate objections, the plaintiff/respondent is permitted to file appeal before the appropriate authority within two months 6; from the date when the copy of this Judgment is made ready for the parties. ( 17 ) WITH the result, the second appeal is allowed subject to the above observations. No costs. Appeal allowed.