Devaswom Board Employees Co-operative Society Ltd. v. P.N. Sarasamma, Karthiyayani, State of Kerala, Addl.R4 Soman, Addl.R5 Sasikumar, Addl.R6 Remani (WP(C) Nos. 19776/2012 & 19777/2012)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 6[TH] DAY OF JULY 2023 / 15TH ASHADHA, 1945 ``` ## **`WP(C) NO. 19776 OF 2012`** ## **`PETITIONER:`** ``` DEVASWOM BOARD EMPLOYEES CO-OPERATIVE SOCIETY LTD NO.K.458, REPRESENTED BY ITS SECRETARY OFFICE OF THE DEVASWOM BOARD EMPLOYEES CO-OPERATIVE SOCIETY, ETUMANOOR, KOTTAYAM. ``` ``` BY ADV SRI.LIJI.J.VADAKEDOM ``` ## **`RESPONDENTS:`** ``` 1P.N.SARASAMMA *(DIED) AGED 55 YEARS,D/O. NARAYANAN, AMBADIYIL HOUSE, KOOTHATTUKULAM MURI, MUVATTUPUZHA TALUK, NOW RESIDING AT AMBADIYIL,PUTHEN VELI P.O. MONIPPALLI (VIA) MEENACHIL TALUK, KOTTAYAM DISTRICT. ``` ``` 2KARTHIYAYANI *(DIED) AGED 71 YEARS, W/O. NARAYANAN, RESIDING AT AMBADIYIL HOUSE, KOOTHATTUKULAM MURI, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA. 3STATE OF KERALA REPRESENTED BY ITS SECRETARY TO THE CO-OPERATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. ``` ``` ADDL.R4SOMAN, ``` ``` S/O. KARTHIYAYANI, AMBADIYIL HOUSE, KOOTHATTUKULAM P.O., MUVATTUPUZHA, ERNAKULM-686 662 ``` ``` ADDL.R5 SASIKUMAR, ``` ``` S/O. KARTHIYAYANI, AMBADIYIL HOUSE, KOOTHATTUKULAM P.O., MUVATTUPUZHA, ERNAKULAM-686 662 ``` ``` WP(C) Nos.19776/2012 & 19777/2012 ``` 2 ``` ADDL.R6 REMANI ``` ``` D/O.KARTHIYAYANI, AMBADIYIL HOUSE, KOOTHATTUKULAM P.O., MUVATTUPUZHA, ERNAKULAM-686 662 ``` ``` [ADDL.R4 TO R6 IMPLEADED AS PER ORDER DATED 25/01/2022 IN IA:1/2022 IN WP(C) 19776/2012] ``` ``` BY ADVS. SRI.GIGIMON ISSAC SRI.A.K.JAYAPRAKASH SRI. JUSTIN JACOB, SR. GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2023, ALONG WITH WP(C).19777/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) Nos.19776/2012 & 19777/2012 ``` 3 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` THURSDAY, THE 6[TH] DAY OF JULY 2023 / 15TH ASHADHA, 1945 ``` ## **`WP(C) NO. 19777 OF 2012`** ## **`PETITIONER:`** ``` DEVASWOM BOARD EMPLOYEES CO-OPERATIVE SOCIETY LTD.,NO.K 458, REPRESENTED BY ITS SECRETARY, OFFICE OF THE DEVASWOM BOARD EMPLOYEES CO-OPERATIVE SOCIETY,ETTUMANOOR,KOTTAYAM. ``` ``` BY ADV SRI.LIJI.J.VADAKEDOM ``` ## **`RESPONDENTS:`** ``` 1P.N.SARASAMMA *(DIED) AGED 55 YEARS, D/O.NARAYANAN, AMBADIYIL HOUSE,KOOTHATTUKULAM MURI, MUVATTUPUZHA TALUK,NOW RESIDING AT AMBADIYIL,PUTHENVELI.P.O,MONIPALLI(VIA), MEENACHIL TALUK,KOTTAYAM DISTRICT-686 662. 2KARTHIYAYANI *(DIED) AGED 71 YEARS, W/O.NARAYANAN, RESIDING AT AMBADIYIL HOUSE,KOTHATTUKULAM MURI, KOTHATTUKULAM VILLAGE,MUVATTUPUZHA-686 662. 3STATE OF KERALA REPRESENTED BY ITS SECRETARY TO THE CO-OPERATIVE DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM-695 001. ``` ``` ADDL.R4 SOMAN, S/O. KARTHIYAYANI, AMBADIYIL HOUSE, KOOTHATTUKULAM P.O., MUVATTUPUZHA, ERNAKULM-686 662 ``` ``` WP(C) Nos.19776/2012 & 19777/2012 ``` 4 ``` ADDL.R 5SASIKUMAR, ``` ``` S/O. KARTHIYAYANI, AMBADIYIL HOUSE, KOOTHATTUKULAM P.O., MUVATTUPUZHA, ERNAKULAM-686 662 ``` ## `ADDL.R 6 REMANI` ``` D/O.KARTHIYAYANI, AMBADIYIL HOUSE, KOOTHATTUKULAM P.O., MUVATTUPUZHA, ERNAKULAM-686 662 ``` ``` [ADDL.R4 TO R6 IMPLEADED AS PER ORDER DATED 25/01/2022 IN IA:1/2022 IN WP(C) 19777/2012] ``` ``` BY ADVS. SRI.GIGIMON ISSAC SRI.A.K.JAYAPRAKASH SRI. JUSTIN JACOB, SR. GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2023, ALONG WITH WP(C).19776/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) Nos.19776/2012 & 19777/2012 ``` 5 ## J U D G M E N T Dated this the 6[th] day of July, 2023 Challenge is against the order of the Tribunal Ext.P5 in both the matters, pertaining to proceedings initiated under Section 69 of Kerala Co-operative Societies Act for recovery of an amount against the sureties, who had executed an indemnity bond in favour of the Society, qua the employees of the society. In these matters, indemnity bond to the society was executed by the mother, since deceased, represented by Legal representatives, for honoring the liability of her daughter respondent No.1, who was also unfortunately died. 2. The Tribunal, noticing the law prevalent at the point of time, observed that such proceedings against surety, who executed the indemnity bond, would not lie and though held the 1[st] respondent liable, closed the proceedings. It is in this background, society has filed these two writ petitions. 3. Learned counsel representing the society relied upon the judgment of this court in **Shibi K.N and Anothehr v. Vaniyamkulam Panchayat Vanitha Sahakarana Sangham Ltd. No.P1051 & Others** **[2018 (3) KHC 952],** wherein it has been held that proceedings under ``` WP(C) Nos.19776/2012 & 19777/2012 ``` 6 Section 69 (1)(g) of Kerala Co-operative Societies Act would also lie against the indemnifier. It was further contended that the erstwhile debtors ie., respondent No.1 and 2, since deceased represented by legal representatives, did not challenge the findings of the Tribunal fastening liability. In the absence of any such challenge, the matter cannot be remanded back. 4. I am of the view that the award as per judgment is now executable, dehor of the findings rendered on point No.1, in favour of the private party respondents. The operative portion of the Award of the Tribunal reads as under: ## “Appeal No.37/2009 dated 30.3.2012: Based 0n the above discussion and the conclusions arrived at therefrom, I hold that the impugned award as against the 2[nd] Appellant is liable to be set aside and as against the 1[st] Appellant is to be modified so as to confine future interest only on the amount misappropriated at the rate of 12% per annum till realisation. The impugned award is liable to be interfered with to the above extent. In the result, the award in ARC.6/2007 on the file of the Joint Registrar of Co-operative Societies (General), Kottayam is set aside and an award is- passed allowing the Respondent to realise a sum of Rs.29,21,733/- with interest at the rate of 12% per annum on Rs.17,99,159/- from 01-10- ``` WP(C) Nos.19776/2012 & 19777/2012 ``` 7 2006 till realisation and costs from the 1[st] appellant and her assets and the disputes as against the 2[nd] appellant is dismissed.” ## “Appeal No.8/2009 dated 30.3.2012: 11. In view of the finding on Point No.3, the impugned award is liable to be set aside to the extent to which it fastened liability on the 2[nd] Appellant. In the result, that part of the award in A.R.C.8608/2005 on the file of the Assistant Registrar of Co-operative Societies (General) Kottayam allowing the respondents to realise the amount awarded from the 2[nd] Appellant and the properties described as Item No.1 and 2 in the schedules of the award is set aside and the respondent is allowed to realise a sum of Rs.6,29,295/- with interest at the rate of 12% per annum on the principal amount of Rs.1,35,090/from 28.2.2005 till its realisation and Rs.1,500/- as arbitration fee and costs from the 1[st] Appellant (1[st] defendant) and her assets.” In this view of the matter, the findings on point No.1 is set aside. Society is at liberty to seek execution of the Award, in accordance with law. Writ petitions stand disposed off. **Sd/-** AMIT RAWAL, JUDGE sou. ``` WP(C) Nos.19776/2012 & 19777/2012 ``` 8 ## APPENDIX IN WP(C).19776/2012 ## PETITIONER’S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE PETITION IN ARC NO.6/2007 BEFORE THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM - EXHIBIT P2: TRUE COPY OF THE WRITTEN STATEMENT OF THE 1[st] DEFENDANT IN ARC NO.6/2007 BEFORE THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM - EXHIBIT P3: TRUE COPY OF THE WRITTEN STATEMENT OF THE 2ND DEFENDANT IN ARC NO.6/2007 BEFORE THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM - EXHIBIT P4: TRUE COPY OF THE AWARD IN ARC NO.6/2007 BEFORE THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM EXHIBIT P5: PHOTOCOPY OF THE JUDGMENT DATED 30.3.20 12 IN APPEAL NO. 37/2009 BEFORE THE CO OPERATIVE TRIBUNAL THIRUVANANTHAPURAM ``` WP(C) Nos.19776/2012 & 19777/2012 ``` 9 ## APPENDIX IN WP(C).19777/2012 ## PETITIONER’S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE PETITION IN ARC NO.8608/2005 BEFORE THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), KOTTAYAM - EXHIBIT P2: TRUE COPY OF THE WRITTEN STATEMENT OF THE 1[st] DEFENDANT IN ARC NO. 8608/2005 BEFORE THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM - EXHIBIT P3: TRUE COPY OF THE WRITTEN STATEMENT OF THE 2[ND] DEFENDANT IN ARC NO.8608/2005 BEFORE THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM - EXHIBIT P4: TRUE COPY OF THE AWARD IN ARC NO.8608/2005 BEFORE THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), KOTTAYAM EXHIBIT P5: PHOTOCOPY OF THE JUDGMENT DATED 30.3.20 12 IN APPEAL NO. 8/2009 BEFORE THE CO OPERATIVE TRIBUNAL THIRUVANANTHAPURAM