The Kumbla Service Co-Operative Bank Ltd. v. Joint Registrar of Co-Operative Societies (General), Kasaragod

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **WEDNESDAY, THE 31ST DAY OF MAY 2017/10TH JYAISHTA, 1939** ## **WP(C).No. 5656 of 2017 (F)** **-----------------------------------------** ## **PETITIONER(S) :** ## **--------------------------** **THE KUMBLA SERVICE CO-OPERATIVE BANK LTD. NO.C.324, REPRESENTED BY ITS PRESIDENT, KUMBALA.P.O., KASARAGOD-671 321.** **BY ADVS. SRI.P.N.MOHANAN SRI.C.P.SABARI SMT.J.LAKSHMI** ## **RESPONDENT(S) :** **----------------------------** **1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) KASARAGOD-671 001.** ## *** ADDITIONAL R2 IMPLEADED** **2. DAMODARAN ARIKADY, AGED 68 YEARS, S/O. AMBADI BELICHAPPADA, RESIDING AT PITHRU KRIPA, ARIKADI, TEMPLE ROAD, KUMBALA, KASARAGOD DISTRICT, PIN- 671 321.** - **ADDITIONAL R2 IS IMPLEADED AS PER ORDER DATED 23.03.2017 IN I.A.NO. 4058 OF 2017.** **R1 BY SR. GOVERNMENT PLEADER SRI. ARAVINDA KUMAR BABU ADDL. R2 BY ADV. SRI.JAWAHAR JOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 5656 of 2017 (F)** **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **P1 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 12.01.2016 OF THE JOINT REGISTRAR.** - **P2 A TRUE COPY OF THE JUDGMENT DATED 27.01.2016 IN WP(C)NO.2957/2016.** - **P3 A TRUE COPY OF THE OBJECTION DATED 02.02.2016** **P4 A TRUE COPY OF SHOW CAUSE NOTICE DATED 16.02.2017 OF THE RESPONDENT.** **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **DEVAN RAMACHANDRAN, J.** **.................................................** ## **W.P.(C) No.5656 of 2017 (F)** **........................................................** ## **Dated this the 31[st] day of May, 2017 JUDGMENT** The issue in this case is very short. The petitioner is a society registered under the provisions of the Kerala Co-operative Societies Act, 1969 (for short, KCS Act). Proceedings were taken by the respondents to supersede the Society by first issuing Ext.P1 notice which was dated 12.01.2016. The petitioner challenged Ext.P1 by filing W.P.(C) No.2957 of 2016 before this Court. This Court had decided the matter earlier and delivered a judgment in the following terms; 2.The petitioner Bank assails Ext.P4 communication from the respondent on the ground that though it is styled as a show cause notice, it has been premeditated, a fait accompli. 3. In response to the submissions made by the learned counsel for the petitioner, the learned Government Pleader has submitted that sufficient opportunity has been given to the petitioner Bank to place its defence before the respondent, who will ensure that an order is passed after following the due procedure. 4. Placing reliance on Siemens Ltd. v. State of W.P.(C) No.5656 of 2017 (F) 2 Maharashtra1, the learned counsel for the petitioner, in reply, has submitted that the Apex Court has categorically held that once an authority has applied its mind and formed an opinion, the subsequent issuance of the notice, though termed as show cause, is only an empty formality. 5. Be that as it may, I am of the considered opinion that Ext.P4 cannot be termed as a fait accompli; indeed, the respondent has given an opportunity to the petitioner to place before the said authority its defence, if any. In the facts and circumstances, given the fact that the petitioner has an apprehension that after passing orders based on Ext.P4 show cause, the respondent authority may proceed further by enforcing it forthwith, this Court disposes of the writ petition with the following directions: 1.The petitioner is at liberty to submit its explanation in response to Ext.P4 show cause notice. 2.Once the respondent authority passes an order taking into account the explanation to be submitted by the petitioner, it shall not be given effect to for two weeks from the date of its receipt by the petitioner Bank. - 2.The petitioner says that in obedience to the directions in Ext.P2 judgment, they had preferred Ext.P3 objection before the Joint Registrar of Co-operative Societies (General) Kasaragod. According to the petitioner, after they showed W.P.(C) No.5656 of 2017 (F) 3 sufficient cause against the proposal for supercessation as per Ext.P3 objection, the respondents had virtually decided not to take any further action. According to the petitioner, this stands established by the fact that the Joint Registrar of Co-operative Societies did not issue any further orders based on Ext.P1 as of now. While so, according to the petitioner, the same Registrar has issued Ext.P4 which is purported to be another notice under Section 32(1) of the KCS Act. The petitioner says that Ext.P4 notice, when proceedings pursuant to Ext.P1 are still not completed, is illegal and unlawful. They, therefore, assail Ext.P4 notice on the ground that it is incompetent. - 3.I have heard Sri.P.N.Mohanan, the learned counsel appearing for the petitioner and Sri.Aravinda Kumar Babu, the learned Senior Government Pleader appearing on behalf of the 1[st] respondent and the learned counsel appearing for the 2[nd] respondent. - 4.I have examined the pleadings on record and I see that the submissions of Mr.Mohanan, the learned counsel appearing 4 W.P.(C) No.5656 of 2017 (F) for the petitioner, is that no action pursuant to Ext.P1 has been completed even as on date and that such fact is conceded by the way Ext.P4 notice has been issued. - 5.I notice that Ext.P4 has been issued on 16.02.2017, which is more than one year after Ext.P2 judgment was delivered by this Court. If any action had been taken pursuant to Ext.P1, obviously it could have been done only in terms of the judgment of this Court. Ext.P4 does not mention anywhere that any further action pursuant to Ext.P1 had been completed. In such a view of the matter, I can only view Ext.P4 to be a fresh action initiated by the Registrar, based on a fresh cause of action on the basis of a complaint made by the 2[nd] respondent before the 1[st] respondent. - 6.Mr.Mohanan, the learned counsel appearing for the petitioner, is very vehement in his submissions that a new action, as is contemplated in Ext.P4 notice, cannot be now allowed to go forward when proceedings pursuant to Ext.P1 is still pending and has not been concluded by a logical order. I am afraid that I cannot find sustenance in the W.P.(C) No.5656 of 2017 (F) 5 submissions of Mr.Mohanan, because I am of the view that the very issuance of Ext.P4 would lead to an irresistible inference that the 1[st] respondent has decided that no further action pursuant to Ext.P1 is now necessary. In such view of the matter I can only conclude that Ext.P1 has been concluded and thus closed by the authority. 7.The question now before me is whether a fresh action pursuant to a complaint by the 2[nd] respondent is maintainable. Even though Mr.Mohanan, the learned counsel appearing for the petitioner, says that the contents of Ext.P4 is virtually verbatim of that of the contents in Ext.P1, I cannot allow that to be a reason to scuttle further proceedings under Ext.P4. I say this because, since I have concluded that Ext.P1 proceedings have now virtually ceased nothing statutorily would inhibit the 1[st] respondent from issuing fresh proceedings under the provisions of Section 32 (1) of KCS Act. At least nothing has been placed before me even by Mr.Mohanan, to show that there is any such statutory embargo. If there is no such embargo or impediment or constraint in the 1[st] respondent initiating a W.P.(C) No.5656 of 2017 (F) 6 fresh proceedings based on fresh cause of action, I do not see why I must now interdict Ext.P4. - 8.In such circumstances, I treat all proceedings pursuant to Ext.P1 to have been concluded by the 1[st] respondent and I order so. No proceedings pursuant to Ext.P1 can now been proceeded against the Society especially in view of the directions contained in Ext.P2 judgment. However, this does not mean that the 1[st] respondent is not entitled to proceed with and pursue action proposed under Ext.P4 in terms of law. - 9.However since I notice that in the earlier round this Court has already issued directions in Ext.P2 judgment, I am of the firm view that the directions contained therein should apply in the present round also. I, therefore, direct the 1[st] respondent that the petitioner be allowed to show cause and to file a response to Ext.P4 notice within a period of one month from the date of receipt of a copy of this judgment. Once the petitioner prefers such an explanation in terms of this judgment, the 1[st] respondent shall consider the same W.P.(C) No.5656 of 2017 (F) 7 and dispose of it, after affording an opportunity of being heard to the petitioner as well as the 2[nd] respondent, in terms of law and in conformity with the provisions of the KCS Act and then decide whether any further action is required pursuant to Ext.P4 notice. As has been directed earlier in Ext.P2 judgment if any action is so proposed against the petitioner under Section 32 of the KCS Act, it shall not be given effect for two weeks from the date of its receipt by the petitioner Bank so as to enable them to challenge the same appropriately. The writ petition is thus ordered of as above. In the facts and circumstances of the case I have made no orders as to costs and the parties are directed to suffer their respective costs. sd/- **DEVAN RAMACHANDRAN JUDGE** AMV/03/06/2017