Puthiyakavu Service Co-Operative Bank Ltd. No.1240 v. Kerala Kerakarsheka Sahakarana Federation Ltd. No.4370 (KERAFED)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942** ## **WP(C).No.31953 OF 2019(T)** ## **PETITIONER:** **PUTHIYAKAVU SERVICE CO-OPERATIVE BANK LTD. NO.1240, REPRESENTED BY ITS PRESIDENT, PUTHIYAKAVU, K.S.PURAM.P.O, KARUNAGAPPALLY, KOLLAM -690544.** **BY ADVS. SRI.P.N.MOHANAN SRI.C.P.SABARI** ## **RESPONDENT:** **KERALA KERAKARSHAKA SAHAKARANA FEDERATION LTD.NO.4370,** **(KERAFED), REPRESENTED BY MANAGING DIRECTOR, KERA TOWER, WATER WORKS COMPOUND, VELLAYAMBALAM, THIRUVANANTHAPURAM-695033.** ## **R1 BY SRI.MANU GOVIND, SC, KERAFED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W.P.(C) No.31953 of 2019** **= = = = = = = = = = = = = = = = = = Dated this the 25[th] day of November, 2020** ## **JUDGMENT** The writ petition, as amended, seeks the following reliefs:- _“i) Issue a writ of mandamus or any other appropriate writ order or direction directing the respondent to issue certificate of affiliation of the respondent bank forthwith._ _ii) declare that in terms of sub section (2) of Section 8A of the KCS Act the petitioner society is deemed to be affiliated with respondent apex society after the expiry of the 60 days since the receipt of Ext.P2._ _iii) Call for the records leading to issue Ext.P4 and quash the same by issuing a writ of certiorari or any other appropriate writ order or direction. iv) Grant such other relief as this Hon'ble Court may deem fit and proper in the circumstances of the case._ ” 2. As per Ext.P1 communication dated 17.12.2012, the respondent Federation invited the W.P.(C) No.31953 of 2019 -: 2 :- petitioner to be affiliated to the Federation on payment of the required share value of `5,000/-. The petitioner Bank resolved to seek for affiliation and accordingly submitted Ext.P2 application dated 30.05.2013 accompanied by demand draft for `5,000/- dated 31.05.2013. According to the petitioner Society, there was no information from the respondent Federation with regard to Ext.P2 application, which caused the petitioner to send Ext.P3 reminder letter dated 19.04.2017. The receipt of Ext.P3 is denied by the respondent. Be that as it may, the writ petition was filed on 25.11.2019 seeking declaration of affiliation in terms of Section 8A(2) and for a direction to the respondent to issue a certificate of affiliation. Pending the writ petition the application was rejected and Relief number (iii) was added by way of an amendment. The respondent has filed a counter challenging the writ petition averments. 3. Heard Sri.P.N.Mohanan, learned counsel for the petitioner and Sri.Manu Govind, learned counsel W.P.(C) No.31953 of 2019 -: 3 :- for the respondent. 4. Section 8A(2) of the Co-operative Societies Act reads thus:- _“(2) Where the apex society or central society_ _does not, within sixty days from the date of receipt of the application for affiliation, determine whether such affiliation should be given or not, such affiliation shall be deemed to have been given to the applicant society from the date on which the said period of sixty days expires.”_ 5. As per Section 8A(2), when there is failure to take decision on the application for affiliation within a period of 60 days from the date of receipt of the same, such affiliation shall be deemed to have been granted on the expiry of the period of sixty days. In _**Sivadasan Nair v. Registrar [2009 (1) KLJ 810]**_ , it was held that the deemed affiliation provided under Section 8A(2) is automatic on the expiry of 60 days from the date of application and that it ## W.P.(C) No.31953 of 2019 -: 4 :- does not depend on any further act or declaration or any direction by the Registrar. 6. Ext.R(A) is a copy of the minutes of the executive committee of the respondent held on 28.05.2013. In the said minutes it is stated that, the executive committee decided to grant membership to various societies mentioned therein. Serial number 14 therein is the petitioner Society. It is recorded therein that a demand draft of `5,000/bearing no.272799 has been submitted by the petitioner Society towards the fee. As stated earlier, even according to the petitioner, the application Ext.P2 and the demand draft accompanying the same were dated 30.05.2013 and 31.05.2013 respectively. This discrepancy is relied on by the learned counsel for the respondent to contend that there is some ambiguity regarding the date of submission of application and payment of the required fee by the petitioner Society. The correct date of submission of the application being not available, the deeming provision which springs W.P.(C) No.31953 of 2019 -: 5 :- up on the expiry of sixty days from the date of the application, cannot apply, is the contention. Ext.R(B) is copy of the minutes of the Managing Committee of the respondent held on 23.08.2013. In the said meeting it was decided to consider the grant of affiliation to the applicants referred to in Ext.R(A) minutes of the executive committee on a subsequent date. The fee of `5,000/- paid towards affiliation was returned by the respondent pursuant to the decision of the Managing Committee of the respondent dated 30.12.2019. 7. The date of submission of the application and the demand draft is not available on record. The fact that the application was available as on 23.08.2013 is evident from Ext.R(B). In terms of Section 8A a decision ought to have been taken on the application at least within sixty days from 23.08.2013. The same having not been done, deemed affiliation has ensued. Ext.P4 decision taken on 30.12.2019 rejecting the application is of no avail since, the petitioner, by virtue of the deeming ## W.P.(C) No.31953 of 2019 -: 6 :- provision under 8A(2), has become an affiliated Society. The mere fact that the Society had not exercised its rights as a member for some years does not result in forfeiture of the membership. 8. It is declared that the petitioner is an affiliated Society of the first respondent under Section 8A(2). Ext.P4 order of rejection of membership is liable to be quashed and I do so. The fee paid for affiliation, which was returned to the petitioner, shall be remitted back to the respondent by way of Demand Draft, within a period of two weeks from the date of receipt of a copy of this judgment. Writ petition is allowed as above. **Sd/SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge **WP(C).No.31953 OF 2019(T)** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE COMMUNICATION DATED 17.12.2012 OF THE RESPONDENT** **EXHIBIT P2 A TRUE COPY OF THE PHOTOCOPY OF THE APPLICATION FORM,DEMAND DRAFT AND RESOLUTION DATED 29.05.2013** **EXHIBIT P3 A TRUE COPY OF THE LETTER DATED 19.04.2017 OF THE PETITIONER BANK.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1A TRUE COPY OF THE EXTRACT OF THE PROCEEDINGS OF THE BOARD MEETING AGENDA ITEM NO.22/9, DATED 30/12/2019** -----