VELLIYAMATTAM SERVICE CO-OPERATIVE BANK LTD. NO.3958 v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY ,THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940** # **WP(C).No. 21442 of 2018** ## **PETITIONER/S:** **1 VELLIYAMATTAM SERVICE CO-OPERATIVE BANK LTD.NO.3958, REPRESENTED BY ITS SECRETARY IN CHARGE, PANNIMATTOM P.O., THODUPUZHA TALUK, IDUKKI DISTRICT -685 588. 2 THE SECRETARY, VELLIYAMATTAM SERVICE CO-OPERATIVE BANK LTD.NO.3958,VELLIYAMATTAM, PANNIMATTOM P.O., THODUPUZHA TALUK, IDUKKI DISTRICT -685 588. 3 THE PRESIDENT, VELLIYAMATTAM SERVICE CO-OPERATIVE BANK LTD.NO.3958,VELLIYAMATTAM, PANNIMATTOM P.O., THODUPUZHA TALUK, IDUKKI DISTRICT -685 588.** **BY ADVS. SRI.K.S.HARIHARAPUTHRAN SMT.BHANU THILAK SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SRI.SETHURAM DHARMAPALAN SHRI.SUNIL KUMAR A.G** ## **RESPONDENT/S:** **1 STATE OF KERALA, REP. BY ITS SECRETARY, DEPARTMENT OF COOPERATION,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCADU P.O., THIRUVANANTHAPURAM -695014.** **3 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, IDUKKI DISTRICT, PAINAVU P.O., IDUKKI-685 603.** W.P.(C) No.21442 of 2018 2 - **4 ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, THODUPUZHA, MINI CIVIL STATION, THODUPUZHA-685584.** - **5 THE SECRETARY (JOINT REGISTRAR), KERALA CO-OPERATIVE DEVELOPMENT & WELFARE FUND BOARD,TC 25/357(4), GANDHARI AMMAN KOVIL ROAD, THIRUVANANTHAPURAM -695001.** - **6 THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI, REP. BY ITS SENIOR SUPERINTENDENT, KUYILIMALA, PAINAVU P.O., IDUKKI-685603.** - **7 JOJO AUGUSTINE,** **AGED 35 YEARS, S/O AUGUSTINE, MACHUKUZHIYIL HOUSE,VELLIYAMATTAM, PANNIMATTAM P.O., THODUPUZHA TALUK, IDUKKI DISTRICT-685588.** ## **R1 TO R4 BY SMT.RAJI.T.BHASKAR,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.21442 of 2018 3 ## **JUDGMENT** This writ petition is filed by the petitioners seeking to quash Ext.P10 order passed by the Consumer Disputes Redressal Forum, Idukki, in C.C.No.120 of 2015 dated 27.02.2017, and for other consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioners herein are a Co-operative Society registered under the Kerala Co-operative Societies Registration Act, 1969, and its Secretary and President respectively. One Jessy Augusthy of Mecheril House, Pannimattam P.O., and her husband Augusthy availed financial assistance from 1[st] petitioner society after mortgaging the property owned and possessed by Jessy. The initial borrowing of Rs.50,000/- each was in the year 2008, and it was renewed periodically, however, not regularly. Ext.P1 is the loan application and Ext.P2 is the security bond. Later, there was no renewal of the bond, thus the account fell in arrears as on 31.03.2013. Smt. Jessy Augusthy expired on 04.06.2013. But the death was not informed to the petitioners. Since the account fell in arrears, petitioners initiated proceedings under the provisions of the Kerala Co-operative Societies Act and Rules by W.P.(C) No.21442 of 2018 4 filing a case before the 4[th] respondent, i.e., Assistant Registrar of Co-operative Societies. Accordingly, summons were issued to the loanees, evident from Exts.P4 and P4(a), and the case was posted for appearance on 20.03.2015. However, the parties did not appear. As there was no appearance, despite service of Ext.P3 and Ext.P4 series, the loanees were set _ex parte_ and awards were passed by the officer concerned, evident from Exts.P5 and P6. 3. After receipt of summons, Augusthy approached the 6[th] respondent under Sec.12 of the Consumer Protection Act, seeking reliefs against the society and direction to close the loan transaction after appropriating the same from the amounts available in the Risk Fund, evident from Ext.P7. Petitioners entered appearance and contested the proceedings. Evidence were let in by both parties and it was thereafter that Ext.P10 order is passed by the Consumer Forum, finding deficiency in service against the respondent society and its officers, and directed to close the pending loan dues. It is thus challenging the order of the Consumer Forum, this writ petition is filed. 4. I have heard learned counsel for the petitioners and the learned Government Pleader W.P.(C) No.21442 of 2018 5 appearing for respondents 1 to 4. Perused the pleadings and the documents on record. Even though notice is served on respondents 5 and 7, there was no appearance. 5. The sole question to be considered is, whether a writ petition is maintainable against an order passed by the Consumer Forum. In my considered view, petitioners participated in the proceedings before the Consumer Forum, evidence was let in and contested the proceedings. In this writ petition, petitioners have a case that the complaint before the Forum was not maintainable under law, and the said aspect was not considered by the Forum while rendering the order or at an earlier point of time. Having participated in the proceedings and let in evidence, if there is any illegality in the order passed by the Forum, it is for the petitioners to pursue their remedies before the appellate authority. Moreover, there is a clear statutory legal frame work under the provisions of the Consumer Protection Act, enabling the petitioners to approach the appellate forums, and therefore, the writ petition is not maintainable under law. 6. This question was considered by the apex court in ' _**Nivedita Sharma v. Cellular Operators Assn. of India & Others**_ ' [(2011) 14 SCC 337], and held that, when there is a W.P.(C) No.21442 of 2018 6 remedy available to the aggrieved person to prefer appeal under law, the High Court committed error in entertaining the writ petition. The said proposition of law laid down by the apex court is clearly applicable to the facts of this case also. 7. In that view of the matter, this writ petition is dismissed, leaving open the liberty of the petitioners to approach the appellate forum. If any appeal is filed, I have no reason to think that the appellate authority will not consider the pendency of this writ petition on and with effect from 25.06.2018, if any application is submitted for condonation of delay. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** St/20.02.2019 W.P.(C) No.21442 of 2018 7 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF LOAN APPLICATION DTD. 10/3/2012 ALONG WITH SECURITY BOND SUBMITTED BY JESSY AUGUSTHY. EXHIBIT P2 TRUE COPY OF LOAN APPLICATION DTD.10/3/2012 ALONG WITH SECURITY BOND SUBMITTED BY AUGUSTHY AUGUSTHY AND JESSY AUGUSTHY. EXHIBIT P3 TRUE COPY OF SUMMONS DTD.9/3/2015 ISSUED TO JESSY AUGUSTHY FOR CASE NO.3236 OF 2014. EXHIBIT P4 TRUE COPY OF SUMMONS DTD.9/3/2015 ISSUED TO AUGUSTHY AUGUSTHY FOR CASE NO.3235 OF 2014. EXHIBIT P4(A) TRUE COPY OF SUMMONS DTD. 9/3/2015 ISSUED TO JESSY AUGUSTHY FOR CASE NO.3235 OF 2014. EXHIBIT P5 TRUE COPY OF AWARD DTD 20/3/2015 IN FILE NO. 3236 OF 2014. EXHIBIT P6 TRUE COPY OF AWARD DTD.20/3/2015 IN FILE NO.3235 OF 2014. EXHIBIT P7 TRUE COPY OF COMPLAINT DTD. 24/3/2015 IN C.C.NO.120 OF 2015 OF THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI. EXHIBIT P8 TRUE COPY OF VERSION FILED BY PETITIONERS IN EXT.P7 BEFORE 6TH RESPONDENT ON 17/4/2015. EXHIBIT P9 TRUE COPY OF VERSION FILED BY 5TH RESPONDENT IN EXT.P7 BEFORE THE 6TH RESPONDENT ON 28/5/2016. EXHIBIT P10 TRUE COPY OF ORDER DTD 27/2/2018 (27/2/2017) IN C.C.NO.120 OF 2015 OF 6TH RESPONDENT. EXHIBIT P11 TRUE COPY RISK FUND SCHEME DECLARED BY 1ST RESPONDENT ON 18/11/2008. EXHIBIT P12 TRUE COPY OF G.O.(MS) NO.96/2014/CO-OP DTD.24/7/2014.** W.P.(C) No.21442 of 2018 8 RESPONDENTS' EXHIBITS: NIL