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2019 DIGILAW 989 (KER)

Thankey Service Co-Operative Bank Ltd. v. Registrar of Co-Operative Societies

2019-11-25

A.M.SHAFFIQUE, S.MANIKUMAR

body2019
JUDGMENT : S. MANIKUMAR, J. 1. Challenge is to an order made by Human Rights Commission in HRMP No. 11245/2018 dated 31.05.2019 by which, Human Rights Commission directed the Secretary of Thankey Service Co-operative Bank Ltd. No. 1003, petitioner herein, to extent the benefit of One Time Settlement Scheme after waving interest and penal interest. 2. Grounds leading to the filing of writ petition are that: “(A) Liability of the 4th respondent stands crystallised by way of Ext-P3 award under section 69 of the KCS Act. The 4th respondent had, in fact, appeared and participated in the said proceedings. If he had any grievance with respect to the quantum or the adjudication, he should have raised an objection before the said forum. After suffering Ext-P3 award, the 4th respondent cannot now chose to approach another forum and get Ext-P3 award modified. (B) The State Human Rights Commission under Section 10 (2) r/w Section 29 of the Protection of Human Rights Act, 1993 had issued regulations, for the purpose of regulating its own procedure. The said regulations were named as the Kerala Human Rights Commission (Procedure) Regulations, 2001. Section 36 of the Protection of Human Rights Act lists out matters which are not subject to the jurisdiction of the Human Rights Commission. Similarly clause 17 of the State Regulations specifically envisages the matters which cannot be subject to the jurisdiction of the State Human Rights Commission. Clause 17 (g) of the State Regulations specifically states that if the complaint does not disclose any human right violation, the Human Rights Commission cannot entertain such a complaint. Admittedly, Ext-P5 complaint does not disclose any human rights violation, incapacitating the State Human Rights Commission from issuing a direction in the nature of Ext-P7 diluting Ext-P3 award. (C) This Hon'ble Court as well as the Hon'ble Apex Court in a catena of decisions had declared that if the impugned order is completely without jurisdiction or opposed to clear statutory provision or violative of principles of natural justice or is against settled principles of law as per decision of the Hon'ble Supreme Court or Jurisdictional High Court, such order is liable to be interdicted by this Hon'ble Court by exercising powers under Art. 226 of the Constitution of India. (D) The petitioner is a society registered under Kerala Co-operative Societies Act, 1969. (D) The petitioner is a society registered under Kerala Co-operative Societies Act, 1969. It is also an admitted fact that the credit facility was availed by the 4th respondent, and thus the issue in hand is a monetary dispute. The Kerala Co-operative Societies Act, is a complete code by itself which lays down clear cut procedures as to how the monetary disputes therein have to be adjudicated. The Registrar of Co-operative Societies is vested with the power to adjudicate the monetary disputes, and the Arbitration Court constituted under Section 69 is empowered to consider other matters pertaining to the service of the employees as well as the issues relating to the establishment. In the appellate remedy is also provided therein by way of an appeal or revision to the Cooperative Tribunal. Thus, when a statute specifically provides for a particular manner in which the issue has to be adjudicated, another statutory Authority cannot impose its authority by passing all such statutory rigours.” 3. On the above grounds and inviting the attention of this Court to Section 74(f) of the Kerala Co-operative Societies Act, 1969, Mr. T.R. Harikumar, learned counsel for the writ petitioner, submitted that Human Rights Commission has no jurisdiction to entertain a complaint and to direct waiver of interest and penal interest. Power is conferred only to the Government or Registrar to write off agricultural or non agricultural debts of borrowers of any society. 4. When confronted with Section 74(f) of the Co-operative Societies Act, on the aspect of exclusion of the jurisdiction of Human Rights Commission to entertain a complaint, which relates to a contract of availing a loan of Rs. 1,80,000/- during the year 2008 from the Thankey Service Cooperative Bank Ltd. non-payment thereof, resulting in interest and penal interest and as to whether contractual matters can be adjudicated by Human Rights Commission, Smt. T.M. Chandralekha, learned counsel for the 4th respondent, has no answer to the bar under the provisions of Section 74(f) of the Co-operative Societies Act. She only submit that a direction be given to Thankey Service Co-operative Bank Ltd. writ petitioner, to extent the benefit of One Time Settlement Scheme. 5. Heard learned counsel for the parties and perused the material available on record. 6. Loan availed on 25.9.2008 for an amount of Rs. 1,80,000/- for business purposes with repayment schedule for 36 months (3 years) is not disputed. 5. Heard learned counsel for the parties and perused the material available on record. 6. Loan availed on 25.9.2008 for an amount of Rs. 1,80,000/- for business purposes with repayment schedule for 36 months (3 years) is not disputed. Society has filed an Arbitration Case under Section 69 of the Kerala Co-operative Societies Act. Mr. Lonan (father of respondent No. 4/complainant before the Human Rights Commission) approached the Society and availed yet another loan facility to clear earlier loan as well as allied purposes. An amount of Rs. 1,80,000/- was borrowed from Thankey Service Co-operative Bank during 2008. Loan was renewed during 2014, at a total sum of Rs. 3,80,000/- with payment schedule 48 months (4 years). Loan was not promptly paid. Respondent No. 4 approached the District Collector seeking waiver of amount. Registrar of Co-operative Societies, Thiruvananthapuram, respondent No. 1, sent Exhibit-P2 communication to the writ petitioner Society. Through the Assistant Registrar of Co-operative Societies (General), Cherthala, respondent No. 3, to extend the availability of the benefit of One Time Settlement Scheme, similar letter has been sent by the District Collector. Despite above, writ petitioner did not approach the 4th respondent. 7. Pleadings and materials on record disclose that left with no other alternative, writ petitioner Society filed a petition before the Arbitrator vide ARC No. 348/2017 (Exhibit-P3) to realise an amount of Rs. 5,17,932/- @ 15% interest on principal amount of Rs. 3,77,222/- from 1.7.2016 from the assets of respondent No. 4. Respondent No. 4 entered appearance in the said proceedings and an award for Rs. 5,17,932/- was ordered. 8. When the writ petitioner was contemplating to execute the award, an intimation was received from the office of Human Rights Commission to appear before the said authority as well as to file a detailed report with regard to the complaint filed by respondent No. 4, vide intimation HRMP No. 11245/18/A/P dated 3.1.2019 (Exhibit-P4) issued by the Secretary of Human Rights Commission. 9. Pleadings further discloses that complaint dated 22.12.2018 was filed in the name of Lonan, father of respondent No. 4, who expired in August, 2006. Though a detailed objection was filed, Human Rights Commission without adverting to the same, has passed an order solely taking into account the financial constraint projected by respondent No. 4. 9. Pleadings further discloses that complaint dated 22.12.2018 was filed in the name of Lonan, father of respondent No. 4, who expired in August, 2006. Though a detailed objection was filed, Human Rights Commission without adverting to the same, has passed an order solely taking into account the financial constraint projected by respondent No. 4. Without addressing the issue as to whether the Commission has jurisdiction or not?, loan availed from the writ petitioner Society is purely contractual in nature. It is further seen that when there is an award passed by an Arbitrator directing payment of interest, as stated supra, against which an appeal remedy is provided under Chapter XIII of the Co-operative Societies Act, Human Rights Commission by issuing an order in HRMP No. 11245 of 2018 dated 31.05.2019 has indirectly interfered with the order passed by the Arbitrator vide ARC No. 348/2017 dated 22.5.2017, by directing waiver of interest and penal interest. Human Rights Commission also directed for One time Settlement Scheme. 10. One Time Settlement Scheme has not been responded by respondent No. 4. Attitude of respondent No. 4 is not bona fide. Besides, Section 74 of the Kerala Co-operative Societies Act does not empower any authority/commission other than Government or Registrar to write off agricultural or non-agricultural debts of borrowers of any society. Section 74(f) of the Kerala Co-operative Societies Act is extracted hereunder: Chapter XB: “74F. Write off of loans - Notwithstanding anything contained in any Act or Rules, no authority or Commission, other than the Government or Registrar, shall have the power to write off agricultural or non agricultural debts or borrowers of any society.” 11. In the light of above discussion, we are in view of that order in HRMP No. 11245 of 2018 passed by Human Rights Commission dated 31.05.2019 is without jurisdiction and, therefore, liable to be set aside. 12. Accordingly, impugned judgment is set aside.