Mayilswamy v. Secretary, Chittur Primary Co-Operative Agricultural & Rural Development Bank Limited
2017-07-28
SHAJI P.CHALY
body2017
DigiLaw.ai
JUDGMENT : 1. The captioned writ petitions are all materially connected in respect of the challenge made by the petitioners against the claim raised by the Bank by issuing sale notices against the loan allegedly availed by the petitioners, evident from Ext.P2 suit filed in the cases before the Arbitration Court under Sec.69 of the Kerala Co-operative Societies Act, 1969. The respondent Bank entered appearance and filed interlocutory applications in all the cases raising a preliminary issue with respect to the maintainability of the suits before the Arbitration Court, same being monetary disputes by and between the parties, and therefore, as provided under Sec.69(i)(h) of the Kerala Co-operative Societies Act, 1969, the subject matter is to be considered by the Registrar, who is only vested with powers under law. Objections were filed by the petitioners in respect of the preliminary issue raised, contending that the issue raised by them in the respective suits is non-execution of any documents, non-availing of any loan from the Bank, and forgery etc., the issue to be sorted out is not relating to any monetary dispute. 2. However, the Arbitration Court, after considering the entire issues, passed orders stating that in accordance with the provisions of Sec.69 of Act, 1969, monetary disputes are subsisting by and between the parties, and therefore, the remedy available to the petitioners is to approach the Registrar, and consequentially all the suits were dismissed. It is thus challenging the said orders passed by the Arbitration Court, the captioned writ petitions are filed, except W.P.(C) No. 35050 of 2015, wherein, challenging the order of the Arbitration Court, petitioner has instituted a proceeding before the Joint Registrar, which was declined as per Ext.P3, stating that the petitioner has to approach the sale officer in respect of the issued concerned. These are the issues projected before this Court for consideration. 3. A detailed counter affidavit is filed by the 1st respondent, reiterating the stand adopted before the Arbitration Court and contending that the petitioners have approached the Bank and availed loans by mortgaging the properties. It is also contended that the title deeds are also deposited with the Bank, and therefore, the attempt of the petitioners is to protract the proceedings and thereby prevent the Bank from going ahead with the sale in order to recover the amounts due to the Bank. 4.
It is also contended that the title deeds are also deposited with the Bank, and therefore, the attempt of the petitioners is to protract the proceedings and thereby prevent the Bank from going ahead with the sale in order to recover the amounts due to the Bank. 4. Heard learned counsel for the petitioners and the learned counsel appearing for the respondent Bank. Perused the documents on record and the pleadings put forth by the respective parties. 5. The sole question to be considered is, whether any manner of interference is warranted to the orders passed by the Arbitration Court. Admittedly, petitioners approached the Arbitration Court on the basis of sale notices issued by the 1st respondent. True, a relief is sought to declare that the petitioners have not executed any documents in favour of the Bank, and therefore, petitioners are not liable. In my considered opinion, the subject issue relates to loan availed allegedly by the petitioners on execution of mortgage and deposit of title deeds. Therefore, even going by the provisions of Sec.69, it cannot be said that the issue raised by the petitioners are not of monetary in nature. When the Bank has a contention that the petitioners have availed loans by executing sufficient mortgage, then it is for the statutory authority created under Sec.69 to proceed in accordance with law and attain a finality to the issue. 6. Admittedly, petitioners are all members of the 1st respondent Bank. Therefore, it cannot be said that the proceedings initiated against the petitioners on the basis of the documents available with the Bank in relation to the loan transactions, the dispute is not of a monetary nature. However, the issue projected by the petitioners before the Cooperative Arbitration Court is an issue to be raised before the Registrar, who is to consider an issue relating to a monetary dispute. Even before the Registrar, the petitioners are entitled to plead and prove that they have not executed any documents before the Bank in question and has not availed any loan. This is more so, when the Bank has a contention that petitioners have availed loans from the Bank earlier also. That apart, the issue can be decided by the Registrar in accordance with the powers conferred under Sec. 69(i)(h) of the Act read with Sec.98 and Rule 67 of the Kerala Co-operative Societies Act and Rules, 1969. 7.
This is more so, when the Bank has a contention that petitioners have availed loans from the Bank earlier also. That apart, the issue can be decided by the Registrar in accordance with the powers conferred under Sec. 69(i)(h) of the Act read with Sec.98 and Rule 67 of the Kerala Co-operative Societies Act and Rules, 1969. 7. The contention advanced by learned counsel for the petitioners that the Registrar is not vested with powers to decide such issues is not correct, since the above provisions confer co-equal power to both the authorities. Section 98 of the Act enables the Registrar to exercise the powers of civil court while trying a suit in respect of the following matters : “(a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; and (d) issuing commissions for examination of witnesses. (2) In the case of any affidavit, any officer, appointed by the Tribunal, the Registrar, the arbitrator or any other person deciding a dispute or the liquidator, as the case may be, in this behalf may administer the oath to the deponent.” 8. So also is the case of the provisions of Rule 67 of the Rules, 1969. However, the term monetary dispute is recognized to mean a dispute on the basis of a monetary issue. The Black's Law Dictionary Ninth Edition defines 'monetary' to mean: “of or relating to money”. Therefore, while the Arbitration Court is vested with powers only to decide non-monetary disputes, the Registrar is vested with powers to decide monetary disputes, which thus means, there is a clear exclusion of power to the Arbitration Court to decide any issue 'of or relating to money'. Accordingly, I do not find any illegality or arbitrariness in the findings rendered so. 9. However, I find that, if the Co-operative Arbitration Court was of the opinion that it has no power to consider the suits filed by the petitioners, then it should not have dismissed the suits, but ought to have taken necessary steps in order to return the suits to the petitioners so as to enable them to represent the suits before the competent authority. This is exactly what is propounded under Order VII, Rule 10 of the Code of Civil Procedure, 1908.
This is exactly what is propounded under Order VII, Rule 10 of the Code of Civil Procedure, 1908. Such a procedure is contemplated under law in order to tide over any situation of limitation prescribed under law, and to avoid any adverse legal consequences. It is also a fair procedure to be adopted in order to avoid any additional expenditure and further consequential inconveniences and difficulties to the litigants. Therefore, the procedure contained thereunder will apply to any legal proceedings having any such consequences. Therefore, in my considered opinion, though the suits, for want of requisite jurisdiction, cannot be sustained under law, the dismissal of the same is arbitrary and illegal, since the procedure adopted by the Arbitration Court is not in accordance with law. 10. Having regard to the facts and circumstances of the case, the Arbitration Court is directed to return the plaints and the documents to the respective petitioners by making necessary endorsement with respect to the date of presentation of the suits, and its return and other requisite details as provided under Order VII, Rules 10 and 10A of the Code of Civil Procedure, and the petitioners will be at liberty to submit the same before the Registrar concerned. The Arbitration Court shall return the plaints within one month from the date of receipt of a copy of this judgment, and as directed above, and the Registrar shall proceed in accordance with law, and attain finality after providing an opportunity of hearing to the petitioners as well as the 1st respondent or any other interested persons. If the sale of the property is conducted, and if not already confirmed, confirmation will stand extended for a period of two months. Be that as it may, the directions and observations contained above shall not be construed as any expression of opinion on the merits of the matter or rival interests of parties. 11. However, I make it clear that the proceedings pertaining to Ext.P7 order dated 10.05.2017 in W.P.(C) No. 17932 of 2017 passed by the Joint Registrar (General), Palakkad, issuing delivery of the property will be guided by the final award passed by the Registrar, in accordance with the directions contained above, and in accordance with law. The writ petitions are disposed of accordingly.