Julious Antony and Jomon Valiya Veettill v. Joint Registrar of Co-operative Societies (General), Thrissur; Kattoor Service Co-operative Bank Ltd; The Secretary, Kattoor Service Co-operative Bank Ltd; Varghese Puthanangadi, President, Kattoor Service Co-operative Bank Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY,THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940** ## **WP(C).No. 22228 of 2017** ## **PETITIONERS:** - **1 JULIOUS ANTONY, AGED 37 YEARS, PALATHINKAL HOUSE, P.O. KATTOOR, THRISSUR DISTRICT.** - **2 JOMON VALIYA VEETTIL, VALIYA VEETTIL HOUSE, P.O. KATTOOR, THRISSUR DISTRICT. BY ADV. SRI.O.D.SIVADAS** ## **RESPONDENTS:** - **1 THE JOINT OF CO-OPERATIVE SOCIETIES (GENERAL), THRISSUR - 680 702.** - **2 THE KATTOOR SERVICE CO-OPERATIVE BANK LTD. 426, P.O. KATTOOR, THRISSUR DISTRICT, PIN - 680 702.** - **3 THE SECRETARY, KATTOOR SERVICE CO-OPERATIVE BANK LTD. 426, P.O. KATTOOR, THRISSUR DISTRICT, PIN-680 702.** - **4 VARGHESE PUTHANANGADI, THE PRESIDENT, KATTOOR SERVICE CO-OPERATIVE BANK LTD. 426, P.O. KATTOOR, THRISSUR DISTRICT, PIN-680 702. BY ADV. SRI.D.SOMASUNDARAM SMT MABLE C.KURIEN,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 22228 of 2017** -2- ## **JUDGMENT** The petitioners, who are elected members to the Managing Committee of the 2[nd] respondent Bank, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the Rules made thereunder, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Exts.P2 and P3 showcause notices dated 12.06.2017 issued by the 1[st] respondent Joint Registrar, whereby the petitioners have been informed that they are liable to be disqualified under the provisions of Rule 44(1)(c)(i) of the Kerala Co-operative Societies Rules. The petitioners have also sought for a declaration that, no proceedings can be taken by the 1[st] respondent against them under Rule 44(1)(c)(i) of the Kerala Co-operative Societies Rules, since they are not defaulters as per the Rules; and a writ of mandamus commanding the 1[st] respondent to consider the objection submitted by the petitioners and pass orders dropping all further proceedings pursuant to Exts.P2 and P3 show-cause notices issued under Rule 44(1)(c)(i) of **WP(C).No. 22228 of 2017** -3- the Rules. 2. On 05.07.2017, when this writ petition came up for admission, the learned Government Pleader took notice for the 1[st] respondent. Urgent notice by speed post was ordered to respondents 2 to 4, returnable in two weeks. This Court granted an interim stay of all further proceedings pursuant to Exts.P2 and P3 for a period of one month, if petitioners had remitted all the dues to the Society before the notices were served. The said interim order, which was extended from time to time, is still in force. 3. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader appearing for the 1[st] respondent. Despite service of notice, none appears for respondents 2 to 4. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Exts.P2 and P3 show cause notices, in exercise of a writ jurisdiction of this Court under Article 226 of the Constitution of India. **WP(C).No. 22228 of 2017** -4- 5. The pleadings and materials on record would show that the Managing Committee of the 2[nd] respondent Society consists of 12 members. The Committee assumed charge on 26.01.2014. Since 2 members have already resigned from the Committee, the strength of the Managing Committee was 10. The petitioners along with six others submitted a notice under Rule 43A of the Kerala Co-operative Societies Rules to move a non-confidence motion against the President of the Society. A copy of the notice is placed on record as Ext.P1. According to the petitioners, the 1[st] respondent Joint Registrar, instead of initiating proceedings on Ext.P1, issued Exts.P2 and P3 show-cause notices to disqualify them under Rule 44(1)(c)(i) of the Rules, so as to protect the 4[th] respondent, who is the President of the Managing Committee. 6. The petitioners would contend that they are only sureties in the chit transactions and no proceedings has been taken by the Bank against the principal debtor. The Bank has also not filed ARC for realisation of the amount **WP(C).No. 22228 of 2017** -5- from the principal debtor. As there is no decree or order rendered by the court or ARC against the principal debtor or the sureties, the petitioners cannot be termed as defaulters under Rule 2(e) of the Kerala Co-operative Societies Rules. 7. The petitioners would contend that, on receipt of Exts.P2 and P3 show-cause notices, the principal debtor paid the amount to the Bank on 28.06.2017 and a declaration was also issued by the Bank stating that there is no dues to the Bank from the 1[st] petitioner either as the principal debtor or as a surety. In order to substantiate the said contention, the 1[st] petitioner would place reliance on Ext.P4 declaration and receipt dated 28.06.2017. Similarly, the alleged arrears of the 2[nd] petitioner as surety was cleared on 27.06.2017 and a copy of the declaration and receipt dated 28.06.2017 issued by the 2[nd] respondent Bank are placed on record as Ext.P5. Relying on the aforesaid materials, the petitioners would contend that they are not liable to be disqualified. Pointing out the said facts, the petitioners have submitted Exts.P6 and P7 replies dated 28.06.2017 to Exts.P2 and P3 **WP(C).No. 22228 of 2017** -6- show-cause notices. Thereafter, they have moved this Court in this writ petition seeking various reliefs. 8. As already noticed, Exts.P2 and P3 notices, which are under challenge in this writ petition are only show-cause notices issued to the petitioners. 9. In **State of U.P v. Brahm Datt Sharma [(1987) 2 SCC 179]** the Apex Court held that, when the show cause notice was issued under a statutory provision calling upon to show cause, the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford an opportunity of hearing and once cause is shown it is open to the authority to consider the matter in the light of the facts and submission placed before it and only thereafter a final decision in the matter could be taken. Therefore, interference by the Court before that would be premature. 10. In **Seimens Ltd v. State of Maharashtra [(2006) 12 SCC 33]** the Apex Court held that ordinarily, a **WP(C).No. 22228 of 2017** -7- writ court may not exercise its discretionary jurisdiction to entertain a writ petition questioning a notice to show cause unless the notice appears to have been without jurisdiction. 11. In **Union of India v. Vicco Laboratories [(2007) 13 SCC 270]** the Apex Court held that, normally, the writ court should not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the authorities concerned and satisfy the authorities concerned about the absence of case for proceeding against the person against whom the show cause notices have been issued. Abstinence from interference at the stage of issuance of show cause notice in order to relegate the parties to the proceedings before the authorities concerned is the normal rule. However, the said rule is not without exceptions. Where a show cause notice is issued either without jurisdiction or in an abuse of process of law, certainly, in that case, the writ court would not hesitate to interfere even at the stage of issuance of the show cause notice. The interference at the **WP(C).No. 22228 of 2017** -8- show cause notice stage should be rare and not in a routine manner. The mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be _prima facie_ established to be so. Where factual adjudication would be necessary, interference is ruled out. 12. In view of the law laid down in the decisions referred to supra, no interference under Article 226 of the Constitution of India is warranted on a show cause notice issued under a statutory provision unless the notice is shown to have been issued palpably without any authority of law or that it is an abuse of process of law. The mere assertion in the writ petition that the show cause notice has been issued without any authority of law or that it is an abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, no interference of this Court in exercise of the extraordinary jurisdiction under Article 226 of the Constitution is warranted. Having considered the averments and also the **WP(C).No. 22228 of 2017** -9- grounds raised in this writ petition, this Court finds that the petitioner has not made out a case warranting interference on Exts.P2 and P3 show cause notices, in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India. It is for the petitioner to show cause to Exts.P2 and P3 notices by submitting a proper explanation, so as to enable the 1[st] respondent to take a final decision on the matter. 13. Viewed in the light of the law laid down in the decision referred to supra, conclusion is irresistible that the petitioners have not made out a case warranting interference on Exts.P2 and P3 show-cause notices, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. Since the petitioners have already submitted Exts.P6 and P7 replies to Exts.P2 and P3 showcause notices, it is for the 1[st] respondent Joint Registrar to consider those replies, with notice to the petitioners and also to respondents 2 and 3 after affording them an opportunity of being heard. Necessary orders in this regard shall be **WP(C).No. 22228 of 2017** -10- passed, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. The legal and factual contentions raised by the petitioners are left open to be raised before the 1[st] respondent at appropriate stage. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 22228 of 2017** -11- ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 COPY OF THE NOTICE ISSUED TO THE 1ST RESPONDENT DATED 12.06.2017.** - **EXHIBIT P2 COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER DATED 12.06.2017.** - **EXHIBIT P3 COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT TO THE 2ND PETITIONER DATED 12.06.2017.** - **EXHIBIT P4 COPY OF THE DECLARATION DATED 28.06.2017 ALONG WITH THE RECEIPT EVIDENCING PAYMENT WITH RESPECT TO THE 1ST PETITIONER.** - **EXHIBIT P5 COPY OF THE DECLARATION DATED 27.06.2017 ALONG WITH THE RECEIPT EVIDENCING PAYMENT WITH RESPECT TO THE 1ST PETITIONER.** - **EXHIBIT P6 COPY OF THE REPLY SUBMITTED BY THE 1ST PETITIONER TO THE 1ST RESPONDENT DATE 28.06.2017 ALONG WITH THE RECEIPT.** - **EXHIBIT P7 COPY OF THE REPLY SUBMITTED BY THE 2ND PETITIONER TO THE 1ST RESPONDENT DATED 28.06.2017 ALONG WITH THE RECEIPT.** **EXHIBIT P8 COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 27.06.2017.** - **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE**