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2008 DIGILAW 770 (KAR)

T. Srinivasa v. J. J. Prakash

2008-12-16

A.N.VENUGOPALA GOWDA, S.R.BANNURMATH

body2008
Judgment :- Venugopala Gowda, J. This contempt petition has been filed under Section 12 of the Contempt of Courts Act, 1971 (for short, `the Act), to take action for disobeying the Award / order dated 02.05.08 passed by the Joint Registrar of Co-operative Societies / Departmental Arbitrator, in Dispute No.JRD/UBF/10064/2005-06 and to punish the accused. 2. Briefly stated, the facts which have led to the filing of this contempt petition are as follows: The complainant was admitted as an Associate member of the Bhavasara Kshatriya Co-operative Society Ltd, Bangalore — 53 (`Society, for short) in the year 1991. He represented to the Society on 110.03 for regular membership, on which no action was taken. Consequently he filed a dispute under Section 70 of the Karnataka Co-operative Societies Act 1959 (for short, `Societies Act) with a prayer to direct the Society to admit him as a regular member. The said dispute which was referred for adjudication, was contested by the Society and the learned Departmental Arbitrator has passed an Award on 5.2008 allowing the dispute in part and directing the Society to admit the complainant as a regular member from the date of the Award. Alleging that, the said Award has not been complied with and that there is wilful disobedience by the accused, who is an in-charge Secretary of the Society, this contempt petition has been filed. 3. We have heard Sri. N. Ramachandra, learned Advocate for the complainant, who contended that, the Arbitrator stands on the same footing as that of a subordinate Court and the disobedience complained of falls within the definition of Section 2(b) of the Act and hence, this Court has the power under Section 10 of the Act to take cognizance of the contempt alleged against the accused and committed by him. He contended that, the provisions contained in Section 109 of the Society Act is not efficacious, because of the procedure contemplated therein, which is required to be followed, there would be undue delay in the matter of conclusion of the proceeding, which would defeat the very object of the Arbitrator passing the Award. He contended that, the provisions contained in Section 109 of the Society Act is not efficacious, because of the procedure contemplated therein, which is required to be followed, there would be undue delay in the matter of conclusion of the proceeding, which would defeat the very object of the Arbitrator passing the Award. He further contended that, to ensure that justice is being done to the complainant, the remedy provided under the Act, for the committing of contempt of an order passed by the subordinate Court, the petition may be entertained and further action taken against the accused as provided under Section 12 of the Act. 4. After hearing the learned Counsel and perusing the record, the short point that arises for our consideration is: Whether, for the disobedience of the Award passed by an Arbitrator in exercise of power under Section 71 of the Karnataka Co-operative Societies Act, 1959, in a dispute filed under Section 70 thereof; the contempt petition under Section 10 read with Section 12 of the Contempt Act is maintainable? 5. As already noticed, the dispute filed by the complainant under Section 70 of the Societies Act was disposed of by the Arbitrator under Section 71 of the Societies Act and an Award was passed on 02.05.08, directing the Society to admit the complainant as a regular member, The complainant alleges that, the said order / Award has been wilfully disobeyed. On the contrary, the learned counsel for the accused contends that, there is no wilful disobedience, in view of the fact that, the aforesaid Award has been questioned by filing an appeal under Section 105 of the Societies Act, in the Karnataka Appellate Tribunal, which is pending. 6. On the contrary, the learned counsel for the accused contends that, there is no wilful disobedience, in view of the fact that, the aforesaid Award has been questioned by filing an appeal under Section 105 of the Societies Act, in the Karnataka Appellate Tribunal, which is pending. 6. Sub-Section (13) of Section 109 of the Societies Act reads as follows: (13) Any Co-operative society or any (office bearer) or employee or paid servant thereof who fails to give effect to any decision or award under Section 71 including order if any passed by the appropriate appellate authority, such decision or award not being a money decree, shall if such failure is by,- .(a) the Board, be punishable with fine which may extend to five thousand rupees, and .(b) an (office bearer) or an employee or a paid servant of such Co-operative society, be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees or with both. From a reading of the said petition, it is clear that, the Co-operative Society, its Managing Committee or its employee, if fails to give effect to any decision or Award not being a money decree, passed under Section 71 of the Act, including an order if any passed by the appropriate Appellate Authority, shall be liable to be punished with imprisonment or fine or both. 7. Thus, it is clear that, the Societies Act itself provides for a just procedure and remedy in case of failure to give effect to any decision or award other than being a money decree, by way of imposition of punishment. It is trite that, if the Act provides for a thing to be done in a particular manner, then, it has to be done in that manner alone and not otherwise. Sub-Section (13) of Section 109 of the Societies Act enables to punish the Society, its management or the employee, for disobedience of the order or Award other than a money decree passed under Section 71. Sub-Section (13) of Section 109 of the Societies Act enables to punish the Society, its management or the employee, for disobedience of the order or Award other than a money decree passed under Section 71. Such power has been conferred by the Legislature with an object that, the order or Award passed thereunder is obeyed and if breached, should be dealt with in the manner provided under the Societies Act itself The power under Section 10 read with Section 12 of the Act, is not intended to supercede the mode of obtaining relief as provided under Sub-Section (13) of Section 109 of the Societies Act or to deny the defences legitimately open in such action. 8. In the case of K. Jagdish Ponraj & Others Vs A. Muniraju & Others CCC No. 114/07(CIVIL), disposed of on 012.08, the facts were that, the complainants as plaintiffs had obtained an order of temporary injunction under Order 39 Rules 1 and 2 CPC in a Civil Court. They alleged disobedience of the said order by the accused. Without invoking the jurisdiction of the Civil Court provided under Rule 2A thereof, a contempt petition was filed in this Court under Sections 10 & 1.2 of the Act. Considerinete. objections raised to the maintainability of the contempt petition, in view of the provision made in Order 39 Rule 2A CPC, it was held as follows: 9. The provision under Order 39 Rule 2A(1) relates to the consequence of disobedience or breach of injunction. The remedy available in case of disobedience or breach of injunction is provided therein itself, which in our view, has been made to provide a speedy inexpensive and effective forum and to avoid multiplicity of litigation before different forums. The Legislative policies and intendment should necessarily weigh with us in giving meaningful interpretation to the provision. We do not find any extraordinary case having been made out by the complainants, who are insisting for initiation and prosecution of the proceedings under the Act, than by availing the remedy provided under the Code. From the said perspective, taking into consideration the remedy provided under the Code, the complaint filed under the Act, for taking action for breach or disobedience of an order of temporary injunction made or granted by the subordinate Court, is not permissible. From the said perspective, taking into consideration the remedy provided under the Code, the complaint filed under the Act, for taking action for breach or disobedience of an order of temporary injunction made or granted by the subordinate Court, is not permissible. In our view, when the subordinate court itself has been sufficiently empowered to deal with the situation, where there is disobedience or breach of the injunction order granted by it. the same forum should be approached for relief and to see that its orders are honoured and given effect to rather than seeking punishment under Section 12 of the Act. 10. The case on hand is not much different. If the Society or its Managing Committee or any of its employees fails to give effect to the decision or Award, is liable to be punished by imposition of fine or imprisonment or both. Hence, in our considered view, the contempt petition under Section 12 of the Act is not maintainable and the complainant in the ordinary circumstances has to have recourse to the provisions contained under Section 109 of the Societies Act. Since, we do not find any exceptional case having been made out by the complainant, pointing out that the remedy provided under sub-Section (13) of Section 109 of the Societies Act is not adequate to deal with the situation, we do not find it expedient to entertain this contempt petition and to proceed against the accused by exercising the jurisdiction under Section 12 of the Act. For the foregoing reasons, we meet this petition as not maintainable, by making it clear that, the rejection will not come in the way of the complainant having recourse to the remedy available under sub-Section (13) of Section 109 of the Societies Act. Ordered accordingly.