Sumathykutty Amma v. The Secretary, Department of Co-operation, Government of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY,THE 03RD DAY OF DECEMBER 2018 / 12TH AGRAHAYANA, 1940** ## **WP(C).No. 27798 of 2018** ## **PETITIONER:** **SUMATHYKUTTY AMMA, BABU MANDIRAM, KAKKAKKOTTOOR, EZHUKONE, KOLLAM-691 505.** ## **BY ADV. SRI.M.K.CHANDRA MOHANDAS** ## **RESPONDENTS:** - **1 THE SECRETARY, DEPARTMENT OF CO-OPERATION, GOVT. OF KERALA, SECRATARIAT, THIRUVANANTHAPURAM-695 001.** - **2 REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM - 691 001.** - **3 JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, CIVIL STATION, KOLLAM - 691 001.** - **4 GENERAL MANAGER, DISTRICT CO-OPERATIVE BANK, KOLLAM - 691 001.** - **R1-R3 BY SENIOR GOVERNMENT PLEADER: SMT.SHEEJA C.S. R4 BY ADV.SRI.P.C.SASIDHARAN, STANDING COUNSEL, DISTRICT CO-OPERATIVE BANK.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 27798 of 2018** -2- ## **JUDGMENT** The petitioner, who availed a consumption loan for Rs.75,000/- in the year 2002, from the 4[th] respondent District Co-operative Bank, which is a society registered under the Kerala Co-operative Societies Act, 1969 and the Rules made thereunder, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P9 communication dated 18.05.2018 of the 4[th] respondent Bank and a writ of mandamus commanding the said respondent to pay back an amount of Rs.67,207/- to the petitioner, in terms of the direction of the Minister for Co-operation, as discernible from the endorsement made on Ext.P6. 2. On 20.08.2018, when this writ petition came up for admission, after arguing for sometime, the learned counsel for the petitioner sought adjournment. 3. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 3 and also the learned Standing Counsel **WP(C).No. 27798 of 2018** -3- for the 4[th] respondent District Co-operative Bank. 4. Going by the averments in the writ petition, the petitioner availed a loan for Rs.75,000/- from the 4[th] respondent, in the year 2002. According to the petitioner, the said loan was availed for the marriage of her daughter. At the time of availing the loan, the petitioner was a worker in a Cashew Factory. Later, she became a widow and on account of unhealth, she discontinued her employment. On account of the default committed by the petitioner in effecting repayment, she was issued with a demand notice dated 21.07.2014 by the 4[th] respondent Bank demanding a sum of Rs.1,50,632/-. The petitioner submitted Ext.P1 representation dated 06.08.2014 before the Chief Minister of Kerala, which was forwarded to the 3[rd] respondent Joint Registrar, with an endorsement to consider favourably the request for waiver of interest and remittance of the principal amount in maximum instalments. 5. The petitioner made another representation dated 08.06.2016 before the Minister for Co-operation, which was **WP(C).No. 27798 of 2018** -4- forwarded to the 4[th] respondent Bank for necessary steps, as evidenced by Ext.P2 communication dated 30.07.2016 of the 3[rd] respondent Joint Registrar. Thereafter, the petitioner submitted a complaint before the Chief Minister of Kerala, which was forwarded to the 4[th] respondent Bank, vide letter dated 01.09.2016 of the 3[rd] respondent Joint Registrar. Based on the said representation, the petitioner was informed vide Ext.P3 communication dated 26.09.2016 of the 4[th] respondent Bank that she has to remit a sum Rs.2,15,281/- for closure of the loan account in respect of the consumption loan availed on 19.09.2002 from Ezhukone Branch. As per Ext.P3, the petitioner was offered certain concessions in the rate of interest. 6. As discernible from Ext.P3 communication dated 26.09.2016 of the 4[th] respondent Bank, the liability of the petitioner in the consumption loan availed on 19.09.2002, at the time of issuance of that communication was Rs.2,15,281/-, which consists of Rs.75,000/- towards principal; Rs.1,35,574 towards interest; and Rs.4,707/- **WP(C).No. 27798 of 2018** -5- towards other expenses. Ext.P3 communication would indicate that, after availing the loan for Rs.75,000/- on 19.09.2002, the petitioner has not made any remittance whatsoever towards the principal sum and she has made only part remittance towards interest. 7. By Ext.P4 circular No.9/2017, the 2[nd] respondent Registrar of Co-operative Societies issued directions regarding One Time Settlement, i.e., Navakeraleeyam Kudissika Nivaranam-2017, which was in force from 01.02.2017 to 31.03.2017. In terms of Ext.P4 circular, the petitioner was issued with Ext.P5 notice dated 08.02.2017 regarding the Adalath held on 18.02.2017 at Kottarakkara Branch of the 4[th] respondent Bank. 8. Going by the averments in the writ petition, the petitioner could not settle the liability in the Adalath conducted in connection with Navakeraleeyam Kudissika Nivaranam-2017. A reading of Ext.P6 representation dated 07.03.2018 submitted before the Minister for Co-operation, would show that, on 04.11.2017, the **WP(C).No. 27798 of 2018** -6- petitioner was issued with a demand notice from Ezhukone Branch of the 4[th] respondent Bank, whereby she has been asked to pay a sum of Rs.2,51,307/-. Thereafter, the petitioner attended the Adalath held on 02.02.2018 at Ezhukone Branch in connection with the One Time Settlement Scheme for the year 2018, i.e., Navakeraleeyam Kudissika Nivaranam-2018. The petitioner was asked to deposit a sum of Rs.1,57,207/- on or before 25.03.2018 and she remitted the said amount on 31.03.2018, as evidenced by Ext.P8 pay-in-slip. 9. Ext.P7 is a communication dated 16.03.2018 of the 3[rd] respondent Joint Registrar, whereby Ext.P6 representation made by the petitioner with an endorsement made by the Minister for Co-operation was forwarded to the 4[th] respondent Bank for necessary action. A reading of Ext.P9 would show that, after the remittance of Rs.1,57,207/-, as evidenced by Ext.P8 pay-in-slip, the petitioner approached the 4[th] respondent Bank contending that excess amount has been collected at the time of closure **WP(C).No. 27798 of 2018** -7- of the loan account and as such, a sum of Rs.67,207/- has to be refunded. The said request has been turned down by the 4[th] respondent Bank vide Ext.P9 communication dated 18.05.2018, stating that the eligible concession of Rs.1,09,687/- under the One Time Settlement Scheme has already been granted, at the time of closure of the loan account and as such, the request made by the petitioner for return of certain amount cannot be accepted. 10. The learned counsel for the petitioner would contend that the closure of the loan account was not strictly in accordance with the directions issued by the Minister for Co-operation, as per the endorsement made on Ext.P6 representation, and as such, the petitioner is entitled for return of Rs.67,207/- as sought for in this writ petition. During the course of arguments, the learned counsel for the petitioner could not point out any provisions under the Kerala Co-operative Societies Act or the rules made thereunder, which confers a legal right on the petitioner to seek consideration of Ext.P6 representation in accordance **WP(C).No. 27798 of 2018** -8- with the directions issued by the Minister for Co-operation, as per the endorsement made on that representation. The learned Standing Counsel for the 4[th] respondent Bank would contend that the petitioner has already been granted the eligible benefits at the time of closure of the loan account and as such, the stand taken by the Bank in Ext.P9 is perfectly legal. 11. Section 69 of the Act deals with disputes to be decided by Co-operative Arbitration Court and Registrar. As per clause (c) of sub-section (1) of Section 69, notwithstanding anything contained in any law for the time being in force, if a dispute arises between the society or its Committee and any past Committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society, such disputes shall be referred to Co-operative Arbitration Court constituted under Section 70A of the Act, in the case of non-monetary disputes and to the Registrar, in the case of **WP(C).No. 27798 of 2018** -9- monetary disputes, and the Arbitration Court or the Registrar, as the case may be, shall decide such disputes and no other court or other authority shall have jurisdiction to entertain any suit or other proceedings in respect of such disputes. 12. In **Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]** the Apex Court held that non-entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient **WP(C).No. 27798 of 2018** -10- ground to invoke the extraordinary jurisdiction under Article 226. 13. In **Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85]** the Apex Court reiterated that the discretionary jurisdiction under Article 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well defined exceptions as observed in **Chaabil Das Agarwal's case (supra)** , i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. After referring to the law laid down in **Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419]** and **WP(C).No. 27798 of 2018** -11- ## **Titaghur Paper Mills Company Ltd. v. State of Orissa** **[(1983) 2 SCC 433]** the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 14. In **Thansingh Nathmal's case (supra)** a Constitution Bench of the Apex Court held that, the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed **WP(C).No. 27798 of 2018** -12- limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under **WP(C).No. 27798 of 2018** -13- the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 15. In **Titaghur Paper Mills' case (supra)** a ThreeJudge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in **Wolverhampton New Water Works Co. v. Hawkesford [(1859) 6 CBNS 336]** at page 356 in the following passage: "There are three classes of cases in which a liability may be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy **WP(C).No. 27798 of 2018** -14- provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in that passage was approved by the House of Lords in **Neville v. London Express Newspaper Ltd.[1919 AC 368]** and has been reaffirmed by the Privy Council in **Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532]** and **Secretary of State v. Mask and Co. [AIR 1940 PC 105]** . It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 16. Having considered the submissions made by the learned counsel on both sides, this Court finds that, if the petitioner is having any dispute as to the amount remitted for closure of her loan account, after availing the benefits under Navakeraleeyam Kudissika Nivaranam-2018, it is for her to raise such dispute before the appropriate authority by invoking the statutory remedy available under Section 69 of the Act. Therefore, the petitioner is not entitled to invoke **WP(C).No. 27798 of 2018** -15- the writ jurisdiction of this Court under Article 226 of the Constitution of India for the reliefs sought for in this writ petition. 17. In such circumstances, this writ petition fails and the same is dismissed; however, without prejudice to the right of the petitioner to invoke the statutory remedy available under Section 69 of the Kerala Co-operative Societies Act. It is for the petitioner to move the appropriate authority under Section 69 of the Act, challenging the stand taken by the 4[th] respondent Bank in Ext.P9 communication dated 18.05.2018 and the said authority shall consider the same and pass appropriate orders thereon, strictly in accordance with law, with notice to both sides, expeditiously. Sd/- **ANIL K.NARENDRAN JUDGE** bpr **WP(C).No. 27798 of 2018** -16- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE REQUEST OF THE PETITIONER SUBMITTED BEFORE THE HON'BLE CHIEF MINISTER OF KERALA.** - **EXHIBIT P2 TRUE COPY OF THE DIRECTION OF THE 3RD RESPONDENT TO THE 4TH RESPONDENT DATED 30/07/2016.** - **EXHIBIT P3 TRUE COPY OF THE LETTER OF THE 4TH RESPONDENT DATED 26/09/2016.** - **EXHIBIT P4 TRUE COPY OF THE CIRCULAR OF THE 2ND RESPONDENT DATED 24/01/2017.** - **EXHIBIT P5 TRUE COPY OF THE LETTER OF THE 4TH RESPONDENT REGARDING ADALATH DATED 08/02/2017.** - **EXHIBIT P6 TRUE COPY OF THE DIRECTION OF THE HON'BLE MINISTER OF CO-OPERATION WRITTEN IN THE COMPLAINT OF THE PETITIONER DATED 07/03/2018.** - **EXHIBIT P7 TRUE COPY OF THE LETTER OF THE 3RD RESPONDENT TO THE 4TH RESPONDENT DATED 16/03/2018.** - **EXHIBIT P8 THE TRUE COPY OF THE RECEIPT DATED 31/03/2018.** - **EXHIBIT P9 TRUE COPY OF THE LETTER OF DENIAL DATED 18/05/2018.** - **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE**