A. Vijayabalan v. Pappanamkode Service Co-Operative Bank Ltd and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 30TH DAY OF JANUARY 2014/10TH MAGHA, 1935 WA.No. 451 of 2009 ( ) IN WP(C) NO.25505/2003 ----------------------AGAINST THE JUDGMENT IN WP(C) 25505/2003 of HIGH COURT OF KERALA DATED 04-11-2003 APPELLANT(S)/3RD RESPONDENT IN WPC NO.25505/03/PLAINTIFF IN A.R.C.NO.121/1993: -------------------------------------------------------------------------------------------------- A.VIJAYABALAN, NATTUKALLINMOOD HOUSE, KARAKKA MANDAPAM, NEMOM VILLAGE, THIRUVANANTHAPURAM. BY ADVS.SRI.VADAKARA V.V.N.MENON SRI.T.N.SUKUMARAN SRI.K.JOHN PANICKER RESPONDENT(S)/PETITIONER AND RESPONDENTS 1, 2 AND 4 IN WPC NO.25505/2003/DEFENDANTS IN A.R.C. NO.121/1993 AND THE ARBITRATOR AND CO-OPERATIVE TRIBUNAL: - ------------------------------------------------------------------------------------------------------- 1. THE PAPPANAMKODE SERVICE CO-OP. BANK LTD BANK LTD. NO.1108, PAPPANAMKODE, THIRUVANANTHAPURAM. REP. BY ITS SECRETARY, R.GOPINATHAN. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, (GENERAL), THIRUVANANTHAPURAM. 3. THE PRESIDING OFFICER, KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. 4. THE INSPECTOR OF CO-OPERATIVE SOCIETIES FOR ARBITRATION AND EXECUTION OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) THIRUVANANTHAPURAM. R,R1 BY ADV. SRI.D.KISHORE R,R2-4 BY ADV. SR GOVERNMENT PLEADER SRI.K.K.SAIDALAVI THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & ANIL K.NARENDRAN, JJ. ----------------------------------W.A.No.451 of 2009 ----------------------------------Dated this the 30[th] day of January, 2014 ## JUDGMENT ## Antony Dominic, J. - 1.This appeal is filed by the third respondent in W.P (C).25505/03. The circumstances in which the first respondent herein filed the writ petition are that in 1992, they had entered into an agreement with the appellant for the construction of a Kalyanamandapam. Work was completed and key of the building was handed over on 29.1.1992, which is stated to be within the agreed period of completion. - 2.Certain monetary claims were raised by the appellant and subsequently, he filed ARC.121/83 before the Arbitrator invoking section 69 of the Kerala Cooperative Societies Act, 1969, hereinafter, the 'Act', for short. That resulted in Ext.P6 award, whereunder, he was ordered to be paid Rs.5,75,000/-, together with 6% interest for delayed payment. It was also ordered that the appellant shall be entitled to 10.5% above estimated cost. WA.451/09 2 3.Aggrieved by the award, appeals were filed by both sides before the Tribunal which numbered the appeal filed by the appellant as AP.9/01 and the appeal filed by the secretary of the first respondent as AP.18/01. By Ext.P8, a common order passed by the Tribunal, both the appeals were disposed of. In that order, the Tribunal held that the dispute raised by the appellant was not a dispute as contemplated under section 69 of the Act. However, it went on to the merits and dismissed both the appeals and enhanced the interest awarded by the Arbitrator from 6% to 9%, apart from the additional amount of Rs.3,35,172/-. 4.In such circumstances, the bank filed W.P(C).25505/03 before this Court challenging Exts.P6 and P8 mentioned above. By the judgment under appeal, following the judgment in Tripoonithura Handloom Weavers Co-op. Society Ltd. v. Ratna Kumar [2001(2) KLT SN 41], the learned Judge held that a dispute regarding payment due under a contract for the construction of a Kalyanamandapam is not a dispute which could be adjudicated under section 69 in view of the definition of 'dispute' as contained in WA.451/09 3 section 2(i) read with section 69 (1)(f) of the Act. On that basis, Exts.P6, P8 and P9 were quashed. It is this judgment which is challenged before us by the third respondent. - 5.We heard the learned counsel for the appellant and the learned counsel for the first respondent bank. - 6.The only dispute that arises is whether the monetary claim raised by the appellant under section 69 of the Act is a dispute as contemplated in the said Act. It was not argued before us that construction of Kalyanamandapam is an object of the society as covered by its by-laws. Section 2(i) defines dispute which reads thus: “dispute” means any matter touching the business, constitution, establishments or management of a society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a society, whether such claim be admitted or not. - 7.Similarly, section 69(1)(f) and (h), which were also relied on before us, are also extracted hereunder for reference: WA.451/09 4 “69. Disputes to be decided by Co-operative Arbitration Court and Registrar - (1) Notwithstanding anything contained in any law for the time being in force, if a dispute arises- (a) x x x x x x (b) x x x x x x (f) between the society and a person, other than a member of he society, who has been granted a loan by the society or with whom the society has or had business transactions or any person claiming through such a person; or (g) x x x x x x (h) between the society and a creditor of the society; such dispute shall be referred to the Co-operative Arbitration Court constituted under Section 70A, in the case of non-monetary disputes and to the Registrar, in the case of monetary disputes and the Arbitration Court, or the Registrar, as the case may be, shall decide such dispute and no other Court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute.” - 8.In order to rely on section 69(1)(f) and (h), the controversy raised against the society before the Arbitrator should first satisfy the requirement of section 2(i). A reading of section 2(i) shows that a matter which is raised against the society should be one touching upon its business, constitution, WA.451/09 5 establishment, management of the society and in relation to such matter, even a monetary claim comes within the expression dispute. In so far as this case is concerned, admittedly, dispute is in relation to the monetary claims arising out a contract for the construction of a Kalyanamandapam. Such a dispute, we are afraid, is not a dispute as contemplated in the aforesaid provisions of the Act. - 9.This view we have taken is fully covered by a Full Bench judgment of this Court in Meeran Unni v. - - Kottayam District Co operative Bank [1985 KLT 384 F.B.] and the judgment in Tripoonithura Handloom Weavers Co-op. Society Ltd. v. Ratna Kumar [2001(2) KLT SN 41]. However, learned counsel for the appellant relied on the decision of this Court in Sekharan v. State of Kerala [1976 KLT 137] and [2004 KLT 662]. - 10.In so far as Sekharan (supra) is concerned, a reading of the judgment itself shows that objectives of the society included construction of godowns and it was therefore that this Court held that the WA.451/09 6 dispute for damages against the contractor engaged for the construction of godown is covered by the provisions of section 69. The factual position in so far as this case is concerned, as we have already seen, is not comparable with the facts of the case dealt with by the learned single Judge in Sekharan (supra) and therefore, it does not give assistance to the appellant. 11. KSRTC (supra) is a case, where, in furtherance of the objectives of the society, it advanced loan to its members and dispute which led to the case was a dispute between the society and the loanee. In such a dispute we have no quarrel with the proposition that it is one touching upon the business of the society. This case also is incomparable to the facts of the case of the appellant and therefore, cannot be taken advantage of. - 12.We are satisfied that the dispute raised by the appellant was not a dispute which is capable of being resolved in a proceedings under section 69 of the Act WA.451/09 7 and the view taken by the learned Judge is unassailable. Appeal lacks merit and it is, therefore, dismissed. Sd/ANTONY DOMINIC, Judge. Sd/- ANIL K.NARENDRAN, Judge. kkb. /True copy/ PS to Judge