ABRAHAM MAMMEN v. K.K. SURENDRAN and OTHERS

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 26TH DAY OF JULY 2018 / 4TH SRAVANA, 1940** **WP(C).No. 8918 of 2018** **----------------------** ## **PETITIONER:** **ABRAHAM MAMMEN, CHETHOMKARA HOUSE, PAZHAVANGADI.P.O, RANNI, PATHANAMTHITTA DISTRICT- 689 673.** **BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR** ## **RESPONDENT(S):** **1. K.K. SURENDRAN, KANNANKARA PUTHUVALIL, CHELLAKKADU.P.O., RANNI, PATHANAMTHITTA DISTRICT- 689 677.** **2. MONAYI PUNNOOSE, CHERIKALETHU HOUSE, AYTHALA.P.O., PATHANAMTHITTA DISTRICT - 689 673.** **3. THE PAZHAVANGADIKARA SERVICE CO-OPERATIVE** **BANK LTD. NO- 994, REPRESENTED BY ITS SECRETARY, PAZHAVANGADI.P.O., RANNI, PATHANAMTHITTA DISTRICT - 689 673.** **4. THE ELECTORAL OFFICER, THE PAZHAVANGADIKARA SERVICE CO-OPERATIVE BANK LTD. NO- 994, PAZHAVANAGADI.P.O., RANNI, PATHANAMTHITTA DISTRICT- 689 673 (ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL), RANNI, PATHANAMTHITTA).** **5. THE RETURNING OFFICER,** **THE PAZHAVANGADIKARA SERVICE CO-OPERATIVE BANK LTD. NO- 994, PAZHAVANAGADI.P.O., RANNI, PATHANAMTHITTA DISTRICT- 689 673 (OFFICER INSPECTOR, OFFICE OF THE ASSISTANT, REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) RANNI, PATHANAMTHITTA)** **6. THE STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM- 695 001.** **7. THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM- 695 001.** **R1 & R2 BY ADVS. SRI.SADCHITH.P.KURUP** **SRI.C.P.ANIL RAJ R4 TO R7 BY SENIOR GOVERNMENT PLEADER SMT.C.S. SHEEJA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 8918 of 2018 (L) -------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **---------------------** **EXHIBIT P1 A TRUE COPY OF THE PLAINT IN ARC NO.02/2014 DATED 7.1.2014 FILED BEFORE THE 7TH RESPONDENT. EXHIBIT P2 A TRUE COPY OF IA NO.1/2014 IN ARC NO 2/2014 DATED 7.1.2014. EXHIBIT P3 A TRUE COPY OF THE JOINT WRITTEN STATEMENT FILED IN ARC NO.2/2014 DATED 28.3.2014. EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 1.7.2014 IN IA NO.1/2014 IN ARC NO.2/2014.** |**RESPONDENTS' EXHIBITS:**|**NIL**| |---|---| |**----------------------**|| **/TRUE COPY/** **P.S.TO JUDGE** **mbr/ 10.08.2018.** ## **ANIL K.NARENDRAN, J.** ## **-----------------------------------------------** W.P.(C)No.8918 of 2018 **-----------------------------------------------** Dated this the 26[th] day of July, 2018 ## **J U D G M E N T** The petitioner is the 3[rd] defendant in A.R.C.No.2/2014 on the file of the Co-operative Arbitration Court, Thiruvananthapuram, which is an election petition filed by respondents 1 and 2 herein, seeking an order to set aside the election held on 24.10.2012, to the Managing Committee of the 3[rd] respondent Co-operative Bank, pursuant to the election notification dated 24.10.2012. The further relief sought for in that election petition includes a declaration that the petitioner herein, who is the 3[rd] defendant, and also defendants 2 and 4 to 14 are ineligible to continue as members in the Managing Committee of the 3[rd] respondent Co-operative Bank and that, they have to vacate the said office. 2. Along with A.R.C.No.2/2014, respondents 1 and 2 filed I.A.No.1/2014, seeking an interim order restraining defendants 2 to 12 therein from acting as members in the Managing Committee of the Society, till disposal of that arbitration case. W.P.(C)No.8918 of 2018 :-2-: The defendants entered appearance and filed Ext.P3 joint written statement. As borne out from Ext.P3, one of the contentions raised in that joint written statement is that the election petition is time barred and hence the same is liable to be dismissed. In Ext.P3, it was requested that the maintainability of the ARC may be decided as a preliminary issue, before proceeding with the case. The relevant paragraphs of Ext.P3 joint written statement read thus ; “Under section 69(3) of the Kerala Co-operative Societies Act 1969 an election petition against the declaration of election to the Board of Directors has to be filed with in one month from the date of election. The declaration of election of the defendants 2 to 12 being on 7.12.2013, the election petition has to be filed on or before 6.1.2014. But the election petition in this case is filed only on 7.1.2014 instead of 6.1.2014. Therefore this election petition is time barred and hence dismissed lime line with cost to the defendants. As the ARC is not maintainable, it is requested that this Hon'ble Arbitration Court may be pleased to hear the maintainability of the ARC as a preliminary issue before proceeding with the case.” 3. Now the grievance of the petitioner, who is the 3[rd] defendant in A.R.C.No.2/2014, is that without deciding the ## W.P.(C)No.8918 of 2018 :-3-: question of maintainability of A.R.C.No.2/2014 as a preliminary issue, the Arbitration Court has issued Ext.P4 order dated 1.7.2014 in I.A.No.1/2014. 4. A reading of Ext.P4 order would show that while rejecting that interlocutory application filed by the plaintiffs, seeking an injunction restraining defendants 2 to 12 not to hold the posts in the Managing Committee of the 1[st] defendant Society till the disposal of the suit, the Arbitration Court found that A.R.C.No.2/2014 is one filed within the time frame. 5. On 22.3.2018 when this writ petition came up for admission, notice on admission was ordered to respondents 1 to 3 and the learned Government Pleader took notice for respondents 4 to 7. 6. On 5.7.2018 this Court directed the Registry to get a report from the Co-operative Arbitration Court, Thiruvananthapuram, as to whether any orders have been passed in A.R.C.No.2/2014 on the preliminary issue raised by defendants 2 to 12, as to its maintainability. Pursuant to that order, vide report dated 17.7.2018 of the Secretary of the Co-operative Arbitration Court, Thiruvananthapuram, addressed to the ## W.P.(C)No.8918 of 2018 :-4-: Registrar (Judicial) of this Court, it is informed that no orders have been passed by the Co-operative Arbitration Court on the preliminary issue raised by the defendants as to the maintainability of A.R.C.No.2/2014. 7. Heard the learned counsel for the petitioner, the learned counsel for respondents 1 and 2, who are the plaintiffs in A.R.C.No.2/2014, and also the learned Government Pleader appearing for respondents 4 to 7. Despite service of notice, none appears for the 3[rd] respondent Bank. 8. The sole issue that arises for consideration in this writ petition is as to whether an interference is warranted on Ext.P4 order dated 1.7.2014 of Co-operative Arbitration Court, Thiruvananthapuram in A.R.C.No.2/2014. 9. In Ext.P3 joint written statement filed by the defendants, the question of maintainability of A.R.C.No.2/2014 was specifically raised, with a request to decide the same as a preliminary issue. The said fact is not in dispute. It is also not in dispute, especially in view of the report dated 17.7.2018 received from the Co-operative Arbitration Court, that no orders have been passed by the Arbitration Court on the preliminary issue ## W.P.(C)No.8918 of 2018 :-5-: raised by the defendants in A.R.C.No.2/2014. Now, as borne out from Ext.P4 order, while considering I.A.No.1/2014 filed by the plaintiffs for interim injunction, the Co-operative Arbitration Court made certain findings as to that issue. 10. When preliminary issue as to the maintainability of an election petition is raised, it is for the Arbitration Court to decide that issue, before proceeding further with the matter. The time limit for filing of election petition is 30 days from the date of declaration of the election, which is the mandate of Sub-section (3) of Section 69 of the Kerala Co-operative Societies Act. Since the Arbitrator, who is exercising the powers under Section 69 of the Act is only a quasi-judicial authority, and not a court and hence the provisions under the Limitation Act has no application, as held by this Court in **John Mathew v. The Assistant Registrar of Co-operative Societies (General), Adoor (2018(3) KHC 373)** . Paragraphs 21 and 22 of the said decision read thus; “21. As per Section 69(1) of the Kerala Co-operative Societies Act monetary dispute between the society and a member of that society shall be referred to the Registrar, W.P.(C)No.8918 of 2018 :-6-: who shall decide such dispute and no other court or authority shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute. The Registrar or any person conferred with the powers of the Registrar under Section 69 of the Act, in terms of any general or special order issued by the Government in exercise of its powers under Section 3(2) of the Act, is only a quasi-judicial authority, who is vested with the powers to decide the dispute or pass an award in accordance with the provisions of the Act, the Rules and the bye-laws, as provided under Section 70(6) of the said Act. 22. As per Section 77 of the Kerala Co-operative Societies Act, the Registrar or any person empowered by him in this behalf shall be deemed, when exercising any power under the said Act for the recovery of any amount by the attachment and sale or by sale without attachment of any property, or when passing any orders on any application made to him for such recovery, to be a civil court for the purposes of Article 136 of the Schedule to the Limitation Act, 1963. The Registrar or any person conferred with the powers of the Registrar under Section 69 of the Act is only a quasijudicial authority and not a court. In such circumstances, the provisions of the Limitation Act have no application in the proceedings before the Registrar or any person conferred with the powers of the Registrar under Section 69 of the Act, notwithstanding the fact that such a quasi-judicial authority has been conferred with certain specified powers of the civil court, as provided under Section 77 of the Kerala Co- W.P.(C)No.8918 of 2018 :-7-: operative Societies Act, for the recovery of any amount by the attachment and sale or by sale without attachment of any property, or when passing any orders on any application made to him for such recovery. The Registrar or any person conferred with the powers of the Registrar under Section 69 of the Act, who is not entrusted with the judicial power of the State, acts as a quasi-judicial authority within the limits of the powers conferred by that Section, while adjudicating the dispute referred to him. In such circumstances, the Schedule to the Limitation Act, 1963 which prescribes the period of limitation only to proceedings in courts have no application to proceedings under Section 69 of the Act, before the Arbitrator. Consequently, Section 3 and Section 29(2) of Limitation Act have no application to any such proceedings before the Arbitrator. In that view of the matter, the Cooperative Tribunal rightly found in Ext.P8 judgment that the provisions under the Limitation Act, 1963 have no application to proceedings before the Arbitrator under Section 69 of the Kerala Co-operative Societies Act.” ## 11. In **Reji Thomas v. State of Kerala [AIR 2018 SC** **2236 : 2018 (2) KHC 842 SC]** a Three-Judge Bench of the Apex Court held that, Section 69 of the Kerala Co-operative Societies Act, 1969 is the mechanism provided by the State Legislature as contemplated under clause (2) of Article 243ZK of the Constitution of India. After referring to the provisions under W.P.(C)No.8918 of 2018 :-8-: sub-section (3) of Section 69 of the said Act, which provides that no dispute arising in connection with the election of the Board of Management or an officer of the society shall be entertained by the Co-operative Arbitration Court unless it is referred to it within one month from the date of the election, the Apex Court held that, once the mechanism provided under the Statute provides for a time schedule for preferring an election petition, in the absence of a provision in the Statute for enlarging the time under any given circumstances, no Court, whether the High Court under Article 226 or the Apex Court under Article 32, Article 136 or Article 142 of the Constitution can extend the period in election matters. In such circumstances, this writ petition is disposed of by setting aside Ext.P4 order in I.A.No.1/2014 to the extent of holding that A.R.C.No.2/2014 is filed within the time frame, thereby directing the Arbitration Court to decide the question of limitation and maintainability of A.R.C.No.2/2014 as a preliminary issue, in view of the specific contentions to that effect raised in Ext.P3 joint written statement. The further proceedings in A.R.C. shall be taken only after W.P.(C)No.8918 of 2018 :-9-: deciding the question of maintainability, after giving an opportunity to both sides to substantiate their rival contentions. The Arbitration Court shall pass appropriate orders on the preliminary issue, within a period of two months from the date of receipt of a certified copy of this judgment. It is made clear that this Court has not expressed anything as to the maintainability or otherwise of A.R.C.No.2/2014 and the observations contained in this judgment are limited for the disposal of this writ petition. Sd/- **JUDGE** **ANIL K.NARENDRAN** ami/26.7.18 //True copy// P.A.to Judge