Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 2472 (MAD)

Special Officer/Co-operative Sub-Registrar v. Principal District Judge/Special Tribunal for Co-operative Societies

2014-08-07

S.NAGAMUTHU

body2014
Judgment : 1. The 2nd respondent was formerly a Clerk in the petitioner's Co-operative Society, governed by the Tamil Nadu Co-operative Societies Act, 1983 (hereinafter referred to as "the Act"). As on 13.05.2000, on account of certain irregularities said to have been committed by the 2nd respondent, along with the then Secretary of the Society by name Mr.M.Balasubramanian, a sum of Rs.6,69,000/- was found as deficit in cash. The first respondent, therefore, decided to initiate proceedings under Section 87 of the Act before the Deputy Registrar of Co-operative Societies, Dindigul. 2. Thereafter, a petition was filed by the petitioner under Section 167 of the Act, before the Deputy Registrar of Co-operative Societies, Dindigul, seeking an order to attach the immovable properties of the 2nd respondent in respect of an Arbitration Proceedings, for a sum of Rs.6,69,000/-. The Deputy Registrar, by order in C.E.P.No.129/2000, dated 17.05.2001, passed a conditional order under Section 167 of the Act. Challenging the same, the 2nd respondent filed an Appeal before the Co-operative Tribunal cum District Judge, Dindigul, in C.M.A.(CS) No.24 of 2000. By order dated 18.03.2011, the Tribunal allowed the appeal and set aside the order passed as against the 2nd respondent. Challenging the same, the petitioner/Society is before this Court with this writ petition. 3. I have heard the learned counsel for the petitioner, the learned counsel appearing for the 2nd respondent and the learned counsel appearing for the 3rd and the 4th respondents. I have also perused the records, carefully. 4. Section 167 of the Act empowers the Deputy Registrar of Co-operative Societies to pass a conditional attachment order, pending proceedings under Section 87 of the Act. As per subsection (2) of Section 167 of the Act, the Registrar may also in the order made under sub-section (1) or by a separate order, direct the conditional attachment of the said property or such part thereof that such attachment shall have the same effect, as if it had been made by a competent civil court. This would only indicate that the Arbitrator is to adjudicate upon the issue like that of a civil court. The principles governing attachment as provided in the Code of Civil Procedure may be taken as guidance by such Arbitrators when they are required to pass orders under Section 167 of the Act. This would only indicate that the Arbitrator is to adjudicate upon the issue like that of a civil court. The principles governing attachment as provided in the Code of Civil Procedure may be taken as guidance by such Arbitrators when they are required to pass orders under Section 167 of the Act. It is needless to point out that as per the Civil Procedure Code, attachment of a property can be effected proportionate to the decree amount and there shall be no excessive attachment. Therefore, the Arbitrator should know as to what is the amount which has been claimed in the proceedings under Section 87 of the Act and then while making attachment, he should attach only the proportionate property going by its value, which is more or less equivalent to the amount involved in the proceedings under Section 87 of the Act. Without knowing the amount, if any attachment is made, it will be void, since the foundation for making attachment is the amount claimed by way of due to the society. 5. In this case, in the impugned attachment order, it is stated that a sum of Rs.6,69,0000/-was due from the 2nd respondent. But, admittedly, there was no proceeding pending under Section 87 of the Act against the 2nd respondent for the recovery of a sum of Rs.6,69,000/-. In the order of attachment, there is no mention about any arbitration proceedings pending before him under Section 87 of the Act. Thus, without there being any proceedings under Section 87 of the Act, the impugned order of attachment has been passed by the Arbitrator under Section 167 of the Act, as though a conditional attachment order under Section 167 of the Act is an independent proceedings other than the proceedings pending under Section 87 of the Act. When this was pointed out, the learned counsel for the petitioner submitted that since there were as many as 16 proceedings initiated under Section 87 of the Act before the Deputy Registrar of Co-operative Societies Act against the second respondent for the entire amount involved in these proceedings, the impugned attachment order came to be passed. This cannot be true because the case numbers have not been mentioned in the attachment order. Secondly, there is no law which permits a single attachment order as a combination of all the Arbitration Proceedings. This cannot be true because the case numbers have not been mentioned in the attachment order. Secondly, there is no law which permits a single attachment order as a combination of all the Arbitration Proceedings. Nextly, in none of the proceedings or to put together in all the proceedings, it has been mentioned that there was a total amount allegedly due from the second respondent. Thus, in my considered opinion, there can be no combined order passed in connection with many Arbitration proceedings. 6. The order passed by the Deputy Registrar further does not refer to any arbitration proceedings at all. It is for these reasons, I hold that the conditional attachment order is not sustainable. But, the learned Tribunal has set aside the order on different grounds, which I do not want to examine, since I am finding that the attachment order passed by the Deputy Registrar is wholly without jurisdiction. 7. It is brought to my notice that in all the 16 arbitration proceedings, awards have been passed and in some matters execution petitions have also been filed. If that be so, it is for the petitioner to work out their remedies in those proceedings, in the manner known to law. 8. In view of the decision arrived at above, I do not find any merit in the writ petition. Accordingly, the writ petition is dismissed. No costs. Connected miscellaneous petition is also dismissed.