OP(C) Nos. 160 of 2020 and 1831 of 2021 (The Mattancherry SC/ST Co-operative Society Ltd vs A.P. Thomas alias Tomy Peter)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 12[TH] DAY OF JANUARY 2022 / 22ND POUSHA,** ## **1943** ## **OP(C) NO. 160 OF 2020** **AGAINST THE PROCEEDINGS E.P.NO.36/2018 IN ARC 2020/2018 OF PRINCIPAL SUB COURT/COMMERCIAL COURT, ERNAKULAM PETITIONERS:** 1 THE MATTANCHERRY SC/ST CO-OPERATIVE SOCIETY LTD NO. R131, PANDIKUDY, MATTANCHERRY, KOCHI-682 002, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, THE MATTANCHERRY SC/ST CO-OPERATIVE LTD. NO.R 131, PANDIKUDY, MATTANCHERY, KOCHI-682 002. BY ADVS. M.M.MONAYE SRI.DESI MATTHAI SMT.BINCY JOSE ## **RESPONDENT:** A.P.THOMAS @ TOMY PETER, AGED 67 YEARS, S/O. PETER, ANTHIKKAD, PETERIS BUILDING, KADAVANTHARA, KOCHI-682 020, ELAMKULAM VILLAGE, KANAYANNUR TALUK. BY ADVS. SRI.K.C.CHARLES SRI.M.POLY MATHAI SRI.VIMAL K.CHARLES THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2022, ALONG WITH OP(C).1831/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **O.P.(C).Nos.160/2020 and 1831/2021** 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 12[TH] DAY OF JANUARY 2022 / 22ND POUSHA,** **1943** ## **OP(C) NO. 1831 OF 2021** **AGAINST THE ORDER IN RP 102/2019 OF KERALA CO-OPERATIVE** ## **TRIBUNAL, THIRUVANANTHAPURAM.** ## **PETITIONER/RESPONDENT:** A.P THOMAS @ TOMY PETER, AGED 81 YEARS, S/O PETER, ANTHIKKAD, PETRIZ BUILDING, KADAVANTHRA, KOCHI-20, ELAMKULAM VILLAGE, KANAYANNUR TALUK, PIN-682020. BY ADVS. K.C.CHARLES VIMAL K.CHARLES A.T.RENJU ## **RESPONDENTS/PETITIONERS:** 1 THE MATTANCHERRY SC/ST CO-OPERATIVE SOCIETY LTD NO.R131, PANDIKUDY, MATTANCHERY PIN-682002, KOCHI-2, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, MATTANCHERRY SC/ST CO-OPERATIVE SOCIETY LTD NO.R131, PANDIKUDY, MATTANCHERY PIN-682002, KOCHI-2. BY ADVS. M.M.MONAYE M.PAUL VARGHESE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2022, ALONG WITH OP(C).160/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 ## **O.P.(C).Nos.160/2020 and 1831/2021** ## **'CR'** ## **JUDGMENT** Original Petition No.1831/2021 has been filed under Article 227 of the Constitution of India, challenging Ext.P5 order dated 05.10.2021 passed by the Kerala Co-operative Tribunal, Thiruvananthapuram in Revision Petition No.102/2019. 2. According to the petitioner, despite having assertion on the part of the petitioner that the petitioner's name is A.P.Thomas alias Tomy Peter, the learned Tribunal remanded the matter for the purpose of deciding as to whether A.P.Thomas alias Tomy Peter are one and same person. 3. It is submitted by the learned counsel for the petitioner that the petitioner's name is A.P.Thomas alias Tomy Peter and the petitioner produced Ext.P8 certificate issued ## **O.P.(C).Nos.160/2020 and 1831/2021** 4 by the Village Officer dated 11.03.2013 stating that A.P.Thomas, S/o.Peter T.Anthikatt, Anthikkatt (H), Kadavanthra and Tomy Peter, S/o.Peter T.Anthikatt, Anthikkatt (H), Kadavanthra, Ernakulam are one and the same person. 4. Though the learned counsel for the Cooperative Society, the respondents herein, specifically asserted that the Tomy Peter is a different person, when he was asked whether any other person claiming himself as Tomy Peter approached the Society and claimed the Fixed Deposit, he conceded that no other person approached the Society till today. Thus, it appears that A.P.Thomas alias Tomy Peter is one and the same person and, therefore, the challenge on this ground is totally unsustainable. 5. Before concluding this point, it is necessary to address the question of ## **O.P.(C).Nos.160/2020 and 1831/2021** 5 maintainability of this petition filed under Article 227 of the Constitution of India. It is submitted by the learned counsel for the Co-operative Society that as per the decision reported in _**Valsaraj v. Rajan and Others**_ **: 2019 KHC 613** , this Court observed that a Judicial Officer exercising the powers of State Transport Appellate Tribunal, acts as a persona designata and not in his capacity as pre-existing judicial authority in the district, he being a District Judge. Therefore, judgment/order of the State Appellate Tribunal is not a judgment/order of a Civil court against which the remedy under Article 227 of the Constitution of India can be invoked. It is submitted by the learned counsel for the Co-operative Society that the status of Co-operative Tribunal is at par with the status of Appellate Tribunal and, therefore, a petition filed under Article 227 ## **O.P.(C).Nos.160/2020 and 1831/2021** **==> picture [7 x 9] intentionally omitted <==** of the Constitution of India, is not maintainable. It is submitted further that in view of the ratio in _**Valsaraj's case**_ (Supra), a petition challenging the said order under under Article 226 is perfectly maintainable. I do agree with the settled law. 6. It is settled in law that misquoting or non-quoting of provision of law is not a ground to dismiss an application or a legal proceeding, if the petition is otherwise maintainable in the eye of law, the same shall be entertained, treating the same, as one filed under the relevant provision. In view of the above settled law, I am inclined to treat this petition as one filed under Article 226 of the Constitution of India and, accordingly, this challenge at the instance of the Cooperative Society is not found maintainable. 7. As I have already observed, according to the petitioner in Original Petition ## **O.P.(C).Nos.160/2020 and 1831/2021** 7 No.1831/2021, he had made 12 deposits as detailed below: |**Item**<br>**No.**|**FD Receipt**<br>**Numbers**|**Amount of**<br>**Deposits**| |---|---|---| |1|1076|50,000| |2|1077|50,000| |3|878|42,132| |4|880|42,000| |5|1103|50,000| |6|1104|1,00,000| |7|1339|1,00,000| |8|1340|1,00,000| |9|1374|1,00,000| |10|1400|1,00,000| |11|1408|1,00,000| |12|1353|1,00,000| ||**Total**|**9,34,132**| Out of which Item Nos.3, 4, 5, 7 and 8 are in the name of Tomy Peter and other deposits are in the name of A.P.Thomas. 8. The crux of the dispute is that A.P.Thomas alias Tomy Peter made Fixed Deposit in SC/ST Co-operative Society Ltd. No.131, Mattancherry and, thereafter, when he demanded ## **O.P.(C).Nos.160/2020 and 1831/2021** 8 for the money, the Society refused to give the money and in turn, A.P.Thomas alias Tomy Peter approached the Arbitrator and the Arbitrator pass Award in his favour. The Co-operative Society took the view that the deposits in the name of Tomy Peter cannot be given to A.P.Thomas and further Society had no sufficient fund to repay even the admitted deposit, in the name of A.P.Thomas also. The Arbitrator negatived the said contention. 9. When the order was challenged before the Co-operative Tribunal, the Tribunal without addressing the real issue, set aside the Award with a direction to the Arbitrator to consider the identity of the person with a specific mention in relation to item Nos.3, 4, 5, 7 and 8, which I have already extracted above. In view of Ext.P8 certificate produced in O.P.(C) No.1831/2021, the identity of A.P.Thomas alias Tomy Peter is fully ## **O.P.(C).Nos.160/2020 and 1831/2021** 9 established. That apart, there is no reason to discard Ext.P8 in the context of events that no other person claiming himself as Tomy Peter, so far not made any claim in respect of the Fixed Deposits, which were effected much earlier. 10. Be it so, I am of the view that the order in Revision Petition passed by the Cooperative Tribunal is illegal and, therefore O.P.No.1831/2021 is allowed and the said order is set aside. Consequently, it is held that the Award passed by the Arbitrator shall revive for executing the same. 11. O.P.(C) No.160/2020 is an application filed under Article 227 of the Constitution of India challenging that the Sub Court, Kochi has no jurisdiction to execute the Award of the Co-operative Tribunal and in this regard Section 76 of the Kerala Co-operative Societies Act has been given emphasis by the ## **O.P.(C).Nos.160/2020 and 1831/2021** 10 learned counsel for the Co-operative Society. Section 76 of the Kerala Co-operative Societies Act is extracted here under for easy reference. _"76. Execution or orders, etc.:- Every order made under sub-section (2) of Section 68 or under Section 75 every decision or award made under Section 70, every order made by the liquidator under Section 73 and every order made by the Tribunal under Section 82, Section 84, Section 85 or Section 86 and every order made under Section 83 shall, if not carried out-_ _(a) on a certificate signed by the Registrar or any person authorised by him in this behalf, be deemed to be a decree of a civil court and shall be executed in the same manner as a decree of such court; or_ _(b) where the order is for the recovery of money, be executed according to the law and under the rules for the time being in force for the recovery of arrears of public revenue due on land:_ _Provided that any application for such recovery shall be made-_ ## **O.P.(C).Nos.160/2020 and 1831/2021** ## 11 _(i) to the Collector and shall be accompanied by a certificate signed by the Registrar or by any person authorised by him in this behalf;_ _(ii) within twelve years from the date fixed in the order, decision or award and if no such date is fixed, within twelve years from the date of the order, decision or award, as the case may be, or_ _(c) be executed by the Registrar or any other person subordinate to him empowered by the Registrar in this behalf, by the attachment and sale or sale without attachment of any property of the person or a society against whom the order, decision or award has been obtained or passed."_ 12. Refuting this contention, the learned counsel for the depositor placed reliance on the decision in _**Parappanangadi Co-operative Service Bank Ltd. v. Sainaba**_ **: 2013 KHC 2717** to contend that an Award shall be deemed to be a decree of Civil Court and shall be executed in a same manner as a decree of such court. ## **O.P.(C).Nos.160/2020 and 1831/2021** 12 13. In view of the settled law, I am not inclined to discuss this matter elaborately. Therefore, the challenge in O.P.(C) No. 160/2020 is found to be merit less. Therefore, O.P.(C) No. 160/2020 stands as dismissed. 14. Before parting, I would like to observe that the Mattancherry SC/ST Co-operative Society functioning as authorised by the Kerala Co-operative Societies Act, after having collected Fixed Deposit, is saying same excuses in the matter of refund of the amount covered by Fixed Deposit receipts. It is submitted by the learned counsel for the Co-operative Society that the Co-operative Society is running in loss and, therefore, the Co-operative Society could not repay the amount in lump and they can repay the amount only by way of instalments, that too @ Rs.50,000/- alone. ## **O.P.(C).Nos.160/2020 and 1831/2021** **==> picture [13 x 9] intentionally omitted <==** 15. Though this submission had been made right from the very beginning, even on today, no amount has been paid. In this context, the Co-operative Department of Kerala State is directed to consider whether Co-operative Societies of this nature are to be allowed to function so as to put the depositors and other beneficiaries in trouble. Therefore, there shall be a direction to the Secretary, Co-operative Department, Secretariat, Thiruvananthapuram to assess the functioning of the Society and also to assess, how much amount to be due from the Society to various persons, who deposited money, and also take a decision as to whether the Society is to be permitted to continue so as to put the members and other beneficiaries in trouble. Registry shall forward a copy of this judgment to the Secretary, Co-operative Department, Secretariat, Thiruvananthapuram ## **O.P.(C).Nos.160/2020 and 1831/2021** **==> picture [13 x 9] intentionally omitted <==** for compliance and report within a period of two months. Sd/- **A.BADHARUDEEN, JUDGE.** ww ## **O.P.(C).Nos.160/2020 and 1831/2021** 15 ## **APPENDIX OF OP(C) 160/2020** PETITIONERS' EXHIBITS: |EXHIBIT P1|A TRUE COPY OF THE AWARD IN ARC| |---|---| ||2020/2018.| |EXHIBIT P2|A TRUE COPY OF THE REVISION PETITION| ||102/2019.| |EXHIBIT P3|TRUE COPY OF THE CHALAN DATED| ||22.8.2019.| |EXHIBIT P4|A TRUE COPY OF THE CHALAN RECEIPT OF| ||REMITTING FEE FOR FILING REVISION| ||PETITION.| |EXHIBIT P5|A TRUE COPY OF THE PETITION FOR A STAY| ||IN R.P.| |EXHIBIT P6|A TRUE COPY OF THE EXECUTION PETITION| ||EP NO.36/2018.| |EXHIBIT P7|A TRUE COPY OF THE COUNTER AFFIDAVIT| ||IN EP NO.36/2018.| |EXHIBIT P8|A TRUE COPY OF THE STATUS OF E-COURT| ||SERVICES DATED 14.1.2020 IN EP| ||NO.36/2018.| |EXHIBIT P9|TRUE COPY OF THE ORDER IN EP NO.| ||36/2018 DATED 14.1.2020| |EXHIBIT P10|TRUE COPY OF THE PETITION TO ADVANCE| ||THE CASE WHICH THE COPY WAS RECEIVED| ||ON 12.02.2021.| ## **O.P.(C).Nos.160/2020 and 1831/2021** 16 RESPONDENT'S EXHIBITS: EXHIBIT-R1 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER DATED 22/09/2019 IN EXT R2 EXECUTION PETITION. EXHIBIT-R2 THE TRUE COPY OF THE PLAINT FILED IN ARC NO.2020/2018. ## **O.P.(C).Nos.160/2020 and 1831/2021** 17 ## **APPENDIX OF OP(C) 1831/2021** ## PETITIONER'S EXHIBITS: |EXHIBIT P1|TRUE COPY OF THE PLAINT DATED| |---|---| ||23.07.2018 IN ARC 2020/2018 ON THE| ||FILE OF THE ASSISTANT REGISTRAR OF CO-| ||OPERATIVE SOCIETIES.| |EXHIBIT P2|TRUE COPY OF THE AWARD DATED| ||03.09.2018 IN ARC 2020/2018.| |EXHIBIT P3|TRUE COPY OF THE E.P.36/2018 DATED| ||30.11.2018 ON THE FILE OF THE SUB| ||COURT, KOCHI.| |EXHIBIT P4|TRUE COPY OF THE ORDER DATED| ||14/01/2020 IN EXHIBIT P3 OF THE SUB| ||COURT, KOCHI.| |EXHIBIT P5|TRUE COPY OF THE JUDGMENT IN R.P| ||102/2019 DATED 5.10.2021 PASSED BY THE| ||TRIBUNAL<br>FOR<br>THE<br>CO-OPERATIVE| ||SOCIETIES.| |EXHIBIT P6|THE TRUE COPY OF THE JUDGMENT IN LAR| ||NO.434/2006 BEFORE THE HON'BLE SUB| ||COURT, ERNAKULAM.| |EXHIBIT P7|THE TRUE COPY OF THE JUDGMENT IN LA.| ||APP NO.466/2015.| |EXHIBIT P8|THE TRUE COPY OF THE CERTIFICATE DATED| ||11-03-2013 ISSUED BY THE VILLAGE| ||OFFICER, ELAMKULAM.| |EXHIBIT P9|THE TRUE COPY OF THE PENSION BOOK OF| ||THE PETITIONER.| 18 ## **O.P.(C).Nos.160/2020 and 1831/2021** ## RESPONDENTS' EXHIBITS: EXHIBIT R1(A) THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT/DEFENDANT SOCIETY DATED 17.11.2021. EXHIBIT R1(B) TRUE COPY OF THE PAPER PUBLICATION IN KERALA KAUMUDI, KOCHI EDITION DATED 03.09.2021.