High Court of KeralaDivision Bench2023-11-03Writ Appeals dismissed; impugned judgment modif...

WA No. 1574/2023 & connected cases (Shintu Rakesh v. The Arbitrator/Registrar of Co-operative Societies (General) & The Service Co-Operative Bank, Thrissur)

Case / Petition Number:WA Nos. 1574/2023 & connected cases

Neutral Citation::null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaramaraman
C. Jayachandran
Judgment Date: 2023-11-03
Court Decision / Holding: Writ Appeals dismissed; impugned judgment modified to delete the cost award of Rs. 25,000/- per appellant; otherwise, the impugned judgment stands.
Final Disposition: Writ Appeals dismissed; impugned judgment modified to delete the cost award; rest of the judgment remains intact; no other relief granted.

Parties to the Case

Appellants / Petitioners

Shintu Rakesh
Saneesh C.N
Rakesh Krishnan
Madhu
Vijayakumar
Saidu Muhammed V H
Radhakrishnan A.R
Roopesh Krishnan
Prathyumnan

Respondents

The Arbitrator/Registrar of Co-Operative Societies (General), Office of the Assistant Registrar of Co-operatives (General), Chalakkudy, Thrissur
The Service Co-Operative Bank, Kuruvilassery, Kallettumkara Village, Chalakudy Taluk, Thrissur

Legal Representation & Advocates

Counsels for Petitioners

• M.N. Sugunapalan (Sr.)
• Sujin Nita N.S.
• Bilwin Basil
• Chandy Vavachan
• Charutha Bhaiju
• Chandhana Bhaiju Basil
• Sajan Fathim Navas
• Basil

Counsels for Respondents

• George Poonthottam (Sr.)

Case Synopsis & Summary

These writ appeals challenge awards under the Kerala Co-operative Societies Act, 1969, passed by the Co-operative Arbitration Court after default on credit facilities. Twelve relatives (appellants) availed credit from the Service Co-operative Bank; upon default, an award was passed. The appellants challenged on grounds of non-compliance with Rule 68 of the Kerala Co-operative Societies Rules (communication of the award by the Registrar/Arbitrator to defendants, allegedly not followed here as the Society notified the appellants) and Rule 74(3)/Order V Rule 15 CPC (service of a demand notice on the defaulter, or, if absent, on an adult family member). They argued that such service is invalid and vitiates proceedings. The learned Single Judge held Rule 68 as directory and applied the doctrine of substantial compliance. The Division Bench overruled a line of authority beginning with People’s Urban Co-operative Bank Ltd. v. Mohanan, holding that non-compliance does not automatically vitiate proceedings and that Order V Rule 15 can justify service on an adult family member, if necessary, while recognizing the Act’s civil court-like powers. The court also overruled Arundas v. Priji via Biju Paramu v. Mohanan. Ultimately, the appeals are dismissed with a modification: the earlier cost award of Rs. 25,000 per appellant is set aside; otherwise, the impugned judgment stands modified accordingly.

Provisions of Law Cited

Section 69 of the Kerala Co-operative Societies Act, 1969Rule 68 of the Kerala Co-operative Societies RulesRule 74(3) of the RulesOrder V Rule 15, CPCSection 98 of the Co-operative Societies ActSection 70(3) of the Co-operative Societies ActSection 100 of the Co-operative Societies ActRule 67(5) of the Kerala Co-operative Societies Rules

Legal Doctrines & Maxims

Doctrine of substantial compliance

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that Rule 68 requires the award/decision to be communicated by the Registrar/Arbitrator to the defendants; in the present matter such communication was effected by the second respondent Society, which is irregular and vitiates proceedings. They contended Rule 74(3) and Order V Rule 15 CPC require service on the defaulter personally; serving on an adult family member is improper. They relied on People’s Urban Co-operative Bank Ltd. v. Mohanan and urged strict compliance with Rule 68. They urged that non-compliance cannot be cured by substantial compliance and that the Court must protect the right to challenge ex parte awards. The appellants invoked Arundas v. Priji and argued that service on an adult member should be ordered by Court, a position later overruled by a Full Bench in Biju Paramu v. Mohanan.

Contentions of Respondents

The respondents contended Rule 68 is directory; the practice of serving the award on defendants through the applicant-society cannot vitiate proceedings; the Co-operative Arbitration Court has civil court-like powers and Rule 68’s non-compliance does not render the award invalid. They argued that Order V Rule 15 permits service on an adult family member when the defendant is not available, and that the law permits such communication to ensure effective dispute resolution. They relied on the broader interpretation of the Act, and cited Sunil Poddar v. Union Bank of India to emphasize notice of hearing over strict summons service.

Cited Precedents (8)

Case Name	Citation	Treatment	Explanation
People's Urban Co-operative Bank Ltd. v. Mohanan	1992 (2) KLT 745	Overruled	The court held that the position taken in this case does not reflect the correct legal position and overrules it; orders service principles under Rule 68 and Order V Rule 15 allow for non-strict compliance.
Arundas v. Priji	2017 (4) KLT 1060	Overruled	Arundas was overruled by a Full Bench in Biju Paramu v. Mohanan.
Biju Paramu v. Mohanan and others	2022 (4) KLT 193	Positive	Cited as controlling authority clarifying that Arundas is overruled; supports the position that service on an adult member under Order V Rule 15 is permissible in appropriate circumstances.
Sunil Poddar and others v. Union Bank of India	(2008) 2 SCC 326	Positive	Used to emphasize that the legal position is not whether the defendant was actually served according to procedure, but whether he had notice of the hearing and sufficient opportunity to appear.
Angadi Service Co-operative Bank Ltd v. Nissamu Kutty and others	2016 (2) KLJ 313	Positive	Recognized as authority that the Co-operative Arbitration Court has civil court-like powers; supports expansive interpretation of powers.
Maniyappan v. Pattanakkad - Service Co-operative Bank	2020 (5) KLT 355 (DB)	Positive	Cited for the proposition that Co-operative Arbitration Court has broad powers and is not strictly limited to enumerated powers.
David T.K. v. Kuruppampady Service Cooperative Bank Ltd. and Others	2010 (4) KLT 901	Positive	Cited for the court’s understanding of the arbitration framework under the Act.
Jacob Varkey v. The Idukki District Co operative Bank	2001 (2) KLT 77	Positive	Used to support the view that the Authority has civil court-like powers and the jurisdiction is not confined to enumerated powers.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945 WA NO. 1574 OF 2023** **AGAINST THE JUDGMENT DTD.16.8.2023 IN WP(C) 26238/2023 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** SHINTU RAKESH AGED 34 YEARS W/O RAKESH KRISHNAN, ADHIYARATH, KURUVILASSERY DESAM 11650, KURUVILASSERY VILLAGE, CHALAKKUDY TALUK THRISSUR, PIN – 680732. BY ADVS.SRI.M.N.SUGUNAPALAN (Sr.) S.SUJIN NITA.N.S. B.BILWIN BASIL CHANDY VAVACHAN CHARUTHA BHAIJU CHANDHANA BHAIJU BASIL SAJAN FATHIM NAVAS ## **RESPONDENTS/RESPONDENTS:** 1 THE ARBITRATOR/THE REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE ASSISTANT REGISTRAR OF CO- OPERATIVE SOCIETIES (GENERAL), CHALAKKUDY, THRISSUR, PIN - 680307 2 THE SERVICE CO- OPERATIVE BANK, KURUVILASSERY, KALLETTUMKARA VILLAGE, CHALAKKUDY VILLAGE, THRISSUR, PIN - 680683 REPRESENTED BY ITS SECRETARY. SRI.GEORGE POONTHOTTAM (Sr.) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2023, ALONG WITH W.A.Nos.1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023, THE COURT ON 03.11.2023 DELIVERED THE FOLLOWING: W.A.Nos.1574/2023 & connected cases -: 2 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945** **WA NO. 1601 OF 2023** **AGAINST THE JUDGMENT DTD.16.8.2023 IN WP(C) 26414/2023 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** SANEESH C.N AGED 35 YEARS S/O NARAYANAN, CHUNDANGAPARAMBIL, VATTAKOTTA DESAM 10944, KURUVILASSERY VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN - 680732 BY ADVS.SRI.M.N.SUGUNAPALAN (Sr.) S.SUJIN NITA.N.S. B.BILWIN BASIL CHANDY VAVACHAN CHARUTHA BHAIJU CHANDHANA BHAIJU BASIL SAJAN FATHIM NAVAS ## **RESPONDENTS/RESPONDENTS:** 1 THE ARBITRATOR/ THE REGISTRAR OF CO- OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), CHALAKKUDY, THRISSUR, PIN - 680307 W.A.Nos.1574/2023 & connected cases -: 3 :- 2 THE SERVICE CO- OPERATIVE BANK, KURUVILASSERY, KALLETTUMKARA VILLAGE, CHALAKKUDY VILLAGE, THRISSUR, PIN – 680683, REPRESENTED BY ITS SECRETARY. SRI.GEORGE POONTHOTTAM (Sr.) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2023, ALONG WITH W.A.Nos.1574, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023, THE COURT ON 03.11.2023 DELIVERED THE FOLLOWING: W.A.Nos.1574/2023 & connected cases -: 4 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023/12TH KARTHIKA, 1945 WA NO. 1602 OF 2023 AGAINST THE JUDGMENT DTD.16.8.2023 IN WP(C) 26394/2023 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** RAKESH KRISHNAN AGED 39 YEARS S/O RADHAKRISHNAN, VALIYAPARAMBU DESOM 8708, ATHIYARATH, KURUVILASSERY VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN - 680732 BY ADVS.SRI.M.N.SUGUNAPALAN (Sr.) S.SUJIN NITA.N.S. B.BILWIN BASIL CHANDY VAVACHAN CHARUTHA BHAIJU CHANDHANA BHAIJU BASIL SAJAN FATHIM NAVAS ## **RESPONDENTS/RESPONDENTS:** 1 THE ARBITRATOR/ THE REGISTRAR OF CO- OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), CHALAKKUDY, THRISSUR, PIN - 680307 W.A.Nos.1574/2023 & connected cases -: 5 :- 2 THE SERVICE CO- OPERATIVE BANK REPRESENTED BY ITS SECRETARY, KURUVILASSERY, KALLETTUMKARA VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN – 680683 SRI.GEORGE POONTHOTTAM (Sr.) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2023, ALONG WITH W.A.Nos.1574, 1601, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023, THE COURT ON 03.11.2023 DELIVERED THE FOLLOWING: W.A.Nos.1574/2023 & connected cases -: 6 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023/12TH KARTHIKA, 1945 WA NO. 1603 OF 2023** **AGAINST THE JUDGMENT DTD.16.8.2023 IN WP(C) 26386/2023 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** MADHU AGED 40 YEARS S/O SUBHRAMANYAN, VENMANASSERY, VALIYAPARAMB DESAM 12835, KURUVILASSERY VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN – 680732. BY ADVS.SRI.M.N.SUGUNAPALAN (Sr.) S.SUJIN NITA.N.S. B.BILWIN BASIL CHANDY VAVACHAN CHARUTHA BHAIJU CHANDHANA BHAIJU BASIL SAJAN FATHIM NAVAS ## **RESPONDENTS/RESPONDENTS:** 1 THE ARBITRATOR/ THE REGISTRAR OF CO- OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), CHALAKKUDY, THRISSUR, PIN – 680307. W.A.Nos.1574/2023 & connected cases -: 7 :- 2 THE SERVICE CO- OPERATIVE BANK REPRESENTED BY ITS SECRETARY, KURUVILASSERY, KALLETTUMKARA VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN – 680683. SRI.GEORGE POONTHOTTAM (Sr.) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2023, ALONG WITH W.A.Nos.1574, 1601, 1602, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023, THE COURT ON 03.11.2023 DELIVERED THE FOLLOWING: W.A.Nos.1574/2023 & connected cases -: 8 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023/12TH KARTHIKA, 1945 WA NO. 1607 OF 2023 AGAINST THE JUDGMENT DTD.16.8.2023 IN WP(C) 26444/2023 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIIONER:** RAKESH KRISHNAN AGED 39 YEARS S/O RADHAKRISHNAN, VALIYAPARAMBU, DESOM 8708, ATHIYARATH, KURUVILASSERY VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN - 680732 BY ADVS.SRI.M.N.SUGUNAPALAN (Sr.) S.SUJIN NITA.N.S. B.BILWIN BASIL CHANDY VAVACHAN CHARUTHA BHAIJU CHANDHANA BHAIJU BASIL SAJAN FATHIM NAVAS ## **RESPONDENTS/RESPONDENTS:** 1 THE ARBITRATOR/ THE REGISTRAR OF CO- OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), CHALAKKUDY, THRISSUR, PIN - 680307 W.A.Nos.1574/2023 & connected cases -: 9 :- 2 THE SERVICE CO- OPERATIVE BANK REPRESENTED BY ITS SECRETARY, KURUVILASSERY, KALLETTUMKARA VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN – 680683. SRI.GEORGE POONTHOTTAM (Sr.) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2023, ALONG WITH W.A.Nos.1574, 1601, 1602, 1603, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023, THE COURT ON 03.11.2023 DELIVERED THE FOLLOWING: W.A.Nos.1574/2023 & connected cases -: 10 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023/12TH KARTHIKA, 1945 WA NO. 1613 OF 2023 AGAINST THE JUDGMENT DTD.16.8.2023 IN WP(C) 26416/2023 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIIONER:** VIJAYAKUMAR AGED 70 YEARS S/O GOPALAN NAIR, PUNNOKIL HOUSE, WEST CHALAKUDY, CHALAKKUDY TALUK, THRISSUR, PIN - 680732 BY ADVS.SRI.M.N.SUGUNAPALAN (Sr.) S.SUJIN NITA.N.S. B.BILWIN BASIL CHANDY VAVACHAN CHARUTHA BHAIJU CHANDHANA BHAIJU BASIL SAJAN FATHIM NAVAS ## **RESPONDENTS/RESPONDENTS:** 1 THE ARBITRATOR/THE REGISTRAR OF CO- OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), CHALAKKUDY, THRISSUR, PIN - 680307 W.A.Nos.1574/2023 & connected cases -: 11 :- 2 THE SERVICE CO- OPERATIVE BANK, KURUVILASSERY, REPRESENTED BY ITS SECRETARY, KURUVILASSERY, KALLETTUMKARA VILLAGE, CHALAKKUDY VILLAGE, THRISSUR, PIN – 680683. SRI.GEORGE POONTHOTTAM (Sr.) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2023, ALONG WITH W.A.Nos.1574, 1601, 1602, 1603, 1607, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023, THE COURT ON 03.11.2023 DELIVERED THE FOLLOWING: W.A.Nos.1574/2023 & connected cases -: 12 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023/12TH KARTHIKA, 1945 WA NO. 1615 OF 2023 AGAINST THE JUDGMENT DTD.16.8.2023 IN WP(C) 26348/2023 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** SAIDU MUHAMMED V H AGED 66 YEARS S/O HASSAN, 4503, VELUTHAKADAVUKKARAN, DESOM, KURUVILASSERY VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN - 680732 BY ADVS.SRI.M.N.SUGUNAPALAN (Sr.) S.SUJIN NITA.N.S. B.BILWIN BASIL CHANDY VAVACHAN CHARUTHA BHAIJU CHANDHANA BHAIJU BASIL SAJAN FATHIM NAVAS ## **RESPONDENTS/RESPONDENTS:** 1 THE ARBITRATOR/ THE REGISTRAR OF CO- OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), CHALAKKUDY, THRISSUR, PIN - 680307 W.A.Nos.1574/2023 & connected cases -: 13 :- 2 THE SERVICE CO- OPERATIVE BANK REPRESENTED BY ITS SECRETARY, KURUVILASSERY, KALLETTUMKARA VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN – 680683. SRI.GEORGE POONTHOTTAM (Sr.) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2023, ALONG WITH W.A.Nos.1574, 1601, 1602, 1603, 1607, 1613, 1617, 1618, 1619, 1620 and 1621 of 2023, THE COURT ON 03.11.2023 DELIVERED THE FOLLOWING: W.A.Nos.1574/2023 & connected cases -: 14 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023/12TH KARTHIKA, 1945 WA NO. 1617 OF 2023** **AGAINST THE JUDGMENT DTD.16.8.2023 IN WP(C) 26370/2023 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** RADHAKRISHNAN A.R AGED 70 YEARS S/O RAMAN, 1580, DESOM, ATHIYARATH, KURUVILASSERY VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN – 680732. BY ADVS.SRI.M.N.SUGUNAPALAN (Sr.) S.SUJIN NITA.N.S. B.BILWIN BASIL CHANDY VAVACHAN CHARUTHA BHAIJU CHANDHANA BHAIJU BASIL SAJAN FATHIM NAVAS ## **RESPONDENTS/RESPONDENTS:** 1 THE ARBITRATOR/ THE REGISTRAR OF CO- OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), CHALAKKUDY, THRISSUR, PIN - 680307 W.A.Nos.1574/2023 & connected cases -: 15 :- 2 THE SERVICE CO- OPERATIVE BANK REPRESENTED BY ITS SECRETARY, KURUVILASSERY, KALLETTUMKARA VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN – 680683. SRI.GEORGE POONTHOTTAM (Sr.) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2023, ALONG WITH W.A.Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1618, 1619, 1620 and 1621 of 2023, THE COURT ON 03.11.2023 DELIVERED THE FOLLOWING: W.A.Nos.1574/2023 & connected cases -: 16 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023/12TH KARTHIKA, 1945 WA NO. 1618 OF 2023** **AGAINST THE JUDGMENT DTD.16.8.2023 IN WP(C) 26381/2023 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIIONER:** RADHAKRISHNAN A.R, AGED 70 YEARS S/O RAMAN, 1580, DESOM, ATHIYARATH, KURUVILASSERY VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN - 680732 BY ADVS.SRI.M.N.SUGUNAPALAN (Sr.) S.SUJIN NITA.N.S. B.BILWIN BASIL CHANDY VAVACHAN CHARUTHA BHAIJU CHANDHANA BHAIJU BASIL SAJAN FATHIM NAVAS ## **RESPONDENTS/RESPONDENTS:** 1 THE ARBITRATOR/THE REGISTRAR OF CO- OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), CHALAKKUDY, THRISSUR, PIN - 680307 W.A.Nos.1574/2023 & connected cases -: 17 :- 2 THE SERVICE CO- OPERATIVE BANK REPRESENTED BY ITS SECRETARY. KURUVILASSERY, KALLETTUMKARA VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN – 680683. SRI.GEORGE POONTHOTTAM (Sr.) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2023, ALONG WITH W.A.Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1619, 1620 and 1621 of 2023, THE COURT ON 03.11.2023 DELIVERED THE FOLLOWING: W.A.Nos.1574/2023 & connected cases -: 18 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023/12TH KARTHIKA, 1945 WA NO. 1619 OF 2023** **AGAINST THE JUDGMENT DTD.16.8.2023 IN WP(C) 26063/2023 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** ROOPESH KRISHNAN AGED 36 YEARS S/O RADHAKRISHNAN, ADHIYARATH, VALIYAPARAMB DESAM 9272, KURUVILASSERY VILLAGE, CHALAKKUDY TALUK THRISSUR, PIN - 680732 BY ADVS.SRI.M.N.SUGUNAPALAN (Sr.) S.SUJIN NITA.N.S. B.BILWIN BASIL CHANDY VAVACHAN CHARUTHA BHAIJU CHANDHANA BHAIJU BASIL SAJAN FATHIM NAVAS ## **RESPONDENTS/RESPONDENTS:** 1 THE ARBITRATOR/ THE REGISTRAR OF CO- OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), CHALAKKUDY, THRISSUR, PIN - 680307 W.A.Nos.1574/2023 & connected cases -: 19 :- 2 THE SERVICE CO-OPERATIVE BANK, REPRESENTED BY ITS SECRETARY, KURUVILASSERY, KURUVILASSERY VILLAGE, THRISSUR, PIN – 680683 SRI.GEORGE POONTHOTTAM (Sr.) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2023, ALONG WITH W.A.Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1620 and 1621 of 2023, THE COURT ON 03.11.2023 DELIVERED THE FOLLOWING: W.A.Nos.1574/2023 & connected cases -: 20 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023/12TH KARTHIKA, 1945 WA NO. 1620 OF 2023 AGAINST THE JUDGMENT DTD.16.8.2023 IN WP(C) 26485/2023 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** PRATHYUMNAN AGED 62 YEARS S/O DAMODARAN, CHUNDANGAPARAMBIL HOUSE, KURUVILASSERY P.O., KURUVILASSERY DESOM, PIN – 680732. BY ADVS.SRI.M.N.SUGUNAPALAN (Sr.) S.SUJIN NITA.N.S. B.BILWIN BASIL CHANDY VAVACHAN CHANDHANA BHAIJU CHARUTHA BHAIJU BASIL SAJAN FATHIM NAVAS ## **RESPONDENTS/RESPONDENTS:** 1 THE ARBITRATOR/ THE REGISTRAR OF CO- OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), CHALAKKUDY, THRISSUR, PIN – 680307. W.A.Nos.1574/2023 & connected cases -: 21 :- 2 THE SERVICE CO- OPERATIVE BANK REPRESENTED BY ITS SECRETARY, KURUVILASSERY, KALLETTUMKARA VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN – 680683. SRI.GEORGE POONTHOTTAM (Sr.) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2023, ALONG WITH W.A.Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619 and 1621 of 2023, THE COURT ON 03.11.2023 DELIVERED THE FOLLOWING: W.A.Nos.1574/2023 & connected cases -: 22 :- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023/12TH KARTHIKA, 1945 WA NO. 1621 OF 2023** **AGAINST THE JUDGMENT DTD.16.8.2023 IN WP(C) 26382/2023 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** SANEESH C.N AGED 35 YEARS S/O NARAYANAN, CHUNDANGAPARAMBIL, VATTAKOTTA DESAM 10944, KURUVILASSERY VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN – 680732. BY ADVS.SRI.M.N.SUGUNAPALAN (Sr.) S.SUJIN NITA.N.S. B.BILWIN BASIL CHANDY VAVACHAN CHARUTHA BHAIJU CHANDHANA BHAIJU BASIL SAJAN FATHIM NAVAS ## **RESPONDENTS/RESPONDENTS:** 1 THE ARBITRATOR/ THE REGISTRAR OF CO- OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), CHALAKKUDY, THRISSUR, PIN – 680307. W.A.Nos.1574/2023 & connected cases -: 23 :- 2 THE SERVICE CO- OPERATIVE BANK REPRESENTED BY ITS SECRETARY, KURUVILASSERY, KALLETTUMKARA VILLAGE, CHALAKKUDY TALUK, THRISSUR, PIN – 680683. SRI.GEORGE POONTHOTTAM (Sr.) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2023, ALONG WITH W.A.Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619 and 1620 of 2023, THE COURT ON 03.11.2023 DELIVERED THE FOLLOWING: ## **ANU SIVARAMAN & C.JAYACHANDRAN, JJ.** **----------------------------------------** ## **W.A.Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **----------------------------------Dated this the 03[rd] day of November, 2023** ## **JUDGMENT** ## **C.Jayachandran, J.** **Twelve writ petitions espousing similar cause, with similar reliefs were dismissed with cost by a common judgment dated 16.08.2023, which is under challenge in the afore captioned Writ Appeals.** **2. The appellants herein (petitioners in the Writ Petitions) are relatives, who availed credit facility from the 2[nd] respondent/Service Co-operative Bank. Upon committing default, the Society took recourse to Section 69 of the Kerala Co-operative Societies Act, 1969 ('the Act' for short). In the Arbitration proceedings,** ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **==> picture [213 x 9] intentionally omitted <==** **the appellants were set** _**ex-parte**_ **and Awards were passed. The subject writ petitions were filed, when execution proceedings were initiated, essentially on the following** **grounds:** **1. The Award was not communicated to the appellants – the defendants in the Arbitration proceedings – in accord with Rule 68 of the Kerala Co-operative Societies Rules ('the Rules' for short). The Award was communicated, not by the Arbitrator, but by the 2[nd] respondent/Society, thus violating the mandate of Rule 68 of the Rules.** **2. The notice in execution proceedings were claimed to have been served, not on the defaulter, but on an adult member of the family, violating Rule 74(3) of the Rules, thus vitiating the proceedings, rendering the award illegal.** ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **- 3 -** **3. Even to serve summons on the adult member of the family, an order of the court is required satisfying the statutory parameters of Order V Rule 15 of the Code of Civil Procedure, which requirement is not satisfied in the instant facts.** **3. The learned Single Judge found that the proceedings cannot be held to be vitiated for reason of the Award being communicated by the 2[nd] respondent/Society, instead of the Arbitrator. Interpreting the provision, it was held that Rule 68 is only directory, and not mandatory. The learned Single Judge also found that the facts at hand is fully justified by the doctrine of substantial compliance. The learned Single Judge went on to hold that the petitioners were fully aware of the proceedings and that the averments in the writ** ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **- 4 -** **petitions to the contrary were false; intended to mislead the court and accordingly, writ petitions were dismissed with a cost of Rs.25,000/- each.** **4. Heard Sri.N.N.Sugunapalan, learned Senior Counsel on behalf of appellants and Sri.George Poonthottam, learned Senior Counsel on behalf of the respondents. Perused the records.** **5. The first contention pertains to the alleged non-compliance of Rule 68. Rule 68 is extracted here below:** ## _**“68. Mode of Communication of orders and decisions**_ _**in deciding Disputes:- An award, decision or order passed by the Co-op. Arbitration Court or Registrar or any other person deciding the dispute or the Arbitrator referred under S.70 of the**_ ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **- 5 -** _**Act, shall be sent to the applicant by the Court or Registrar, as the case may be, with his seal affixed thereon, by registered post. One copy of the award, decision or order shall be retained in the file concerned and same kept in tact for a period of 12 years. The copy of the award/order shall be communicated to the defendants also by registered post.”**_ ## **6. A close scrutiny of Rule 68 reveals the following aspects:** **a) Rule 68 in its former part contemplates the Award/Decision/ Order (thereby meaning its original) to be sent by registered post only to the applicant; whereas in its latter part, the rule envisages a copy of the Award/Order to be communicated to the defendants also, by registered post.** **b) In the case of communication of the Award to the applicant, the Rule** ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **- 6 -** **mandates that the same shall be sent by Court/Registrar, as the case may be; whereas it is not specifically enjoined so, in the case of communication to the defendants.** **7. The above aspects in the scheme of Rule 68 may create an apparent impression that the 'applicant' is put on a slightly higher pedestal than the 'defendants', which, however, we are not inclined to hold, for, we do not find any intelligible differentia between the applicants and the defendant, in so far as their entitlement to get the Award/Order. No precedent has been placed before us on the point whether the Registrar/Arbitrator himself should communicate the Award to the defendants and whether non-compliance in this regard would** ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **- 7 -** **vitiate the proceedings. Though the language employed in Rule 68 leaves a void as to who shall communicate the Award to the defendant, a harmonious reading of Rule 68, as a whole, would only persuade us to hold that, ideally, the Arbitrator or the Registrar, as the case may be, is the authority bound to communicate the Award/Order to the defendants. The present practice of communicating the Award/decision/order to the defendants by the applicant Society is irregular, if not illegal. But, the moot question is whether the non-compliance in this regard would vitiate the proceedings and render the Award illegal; for which purpose, we look into the purpose of Rule 68, which speaks of 'Mode of communication of orders and decisions'. We may incidentally record that it was not** ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **- 8 -** **seriously disputed before us that the award was communicated to the respective appellant by the 2[nd] respondent Society. Communication of an award essentially enables the party to assimilate the ultimate conclusion/decision arrived at by the authority and the reasons therefore, so that he can take a call as to whether he should accept and comply with the award/decision, or to prefer any proceeding as per law to challenge the same. If this purpose is abundantly served, no matter from which source the award is propelled, can it be conceived that the entire proceedings is vitiated for want of strict compliance of Rule 68, especially when there is a void in the statute as to who shall send the Award to the defendant? To us, the answer is an emphatic 'No'. We also endorse the finding of the** ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **==> picture [66 x 9] intentionally omitted <==** **learned Single Judge that instant fact situation is fully justified by the doctrine of substantial compliance. Point no.1 formulated is thus concluded against the appellants.** **8. We will now proceed to address the second point, which pertains to the interpretation of Rule 74(3), in the context of the imprimatur, if any, to serve demand notice on the defaulter himself; and not on an adult member of the defaulter's family. In this regard, learned counsel for the appellants placed heavy reliance upon the judgment of a learned ' - Single Judge in People s Urban Co operative Bank Ltd. v. Mohanan {1992 (2) KLT 745]. The relevant findings mandating service upon the defaulter himself are extracted here below:** **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **- 10 -** **“6** _**. ...........It is incumbent upon the Sale Officer to serve a demand notice in writing to the defaulter concerned. Counsel for the petitioner submitted that the demand notice was in fact sent to the first respondent but it was received by his sister as he was not available. Counsel submitted that as the notice was received by the first respondent's sister it would amount to proper service of notice. Such a contention is not tenable in view of the specific provision in R. 74(3) that the demand notice should be served on the defaulter. There is no rule under the Act to the effect that in a case where the defaulter is not available the notice could be served upon any adult member of his family, failure to serve the demand notice to the first respondent has vitiated the consequent proclamation of sale and the auction.”**_ **[Underlined by us for emphasis]** ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **- 11 -** **9. Having bestowed our anxious consideration ' - to the dictum laid down in People s Urban Co operative Bank Ltd. (supra), we cannot persuade ourselves to endorse the same. It is true that Section 74(3) speaks of service of demand notice on the 'defaulter concerned'. The provision can only be like that, for, a demand notice pursuant to an application for execution should necessarily be served upon the defaulter, who was the defendant in the original proceeding. It is only in the context of, how such notice is to be served, that the modalities of serving notice to the defaulter arises. Section 104 of the Co-operative Societies Act is a general provision which deals with service of every notice issued or made under the Act. The Section provides that** ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **==> picture [220 x 9] intentionally omitted <==** **such notice may be served by properly addressing the person in the last known address of the residence and posting by registered post a letter containing the notice. The Section also provides that service of notice shall be deemed to have been effected at the time at which the letter would be delivered in the ordinary course, unless the contrary is proved.** **10. In this regard, we may also notice that under Section 98 of the Act, the Tribunal, the Registrar and the Arbitrator deciding a dispute is bestowed with all powers of a civil court under the Code of Civil Procedure for the matters enumerated therein. Similarly, under Section 70(3) of the Act, similar powers** ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **==> picture [220 x 9] intentionally omitted <==** **have been vested with the Co-operative Arbitration Court as that of a Civil Court under CPC, 1908. Again, Rule 67(5) of the Cooperative Societies Rules, speaks of the power of a Co-operative Arbitration Court or the Registrar to administer oath, to require the attendance of all parties concerned, witnesses, etc. By virtue of the above powers, it is, by now, settled that such Authority deciding the dispute has all the trappings of - a civil court [See, The Angadi Service Co operative Bank Ltd v. Nissamu Kutty and others - 2016 (2) KLJ 313; Maniyappan v. Pattanakkad - Service Co operative Bank – 2020 (5) KLT 355 (DB); David T.K. v. Kuruppampady Service Cooperative Bank Ltd. and Others – 2010 (4) KLT 901]; and that the jurisdiction of such** ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **- 14 -** **Authority is not confined to those powers which are specifically enumerated in Section 98 [See, Jacob Varkey v. The Idukki - District Co operative Bank - 2001 (2) KLT 77]. This is all the more so, in view of the bar of jurisdiction of the Civil Court envisaged in Section 100 of the Act, wherefore, unless the incidental and supplemental powers are read into along with the express powers conferred, the Authority under the Act, which, in fact, is a substitute for the ordinary remedy through a Civil Court, cannot provide an effective mechanism for dispute resolution.** **11. Therefore, there cannot be any doubt as regards the applicability of Order V, Rule 15 of the Code of Civil Procedure, which provides** ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **==> picture [220 x 9] intentionally omitted <==** **for service on an adult member of the defendant's family, if the defendant is absent from his residence and there is no likelihood of him being found at the residence within a reasonable time.** **12. As regards the third point formulated, a confusion that such service on an adult member can be made only if it is specifically ordered by the Court, as held by a Division Bench in Arundas v. Priji [2017 (4) KLT 1060], was clarified by a Full Bench in Biju Paramu v. Mohanan and others [2022 (4) KLT 193] whereby Arundas (supra) was overruled.** **13. In the light of the above discussion, we hold that the mode of service under Order V,** ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **==> picture [220 x 9] intentionally omitted <==** **Rule 15 is applicable to Rule 74(3) as well, to effect service of the demand notice upon the defaulter. Unless we explain and clarify the legal position as above, insurmountable difficulties may surface while executing an award, order or decision made under this Act. It may lead to a situation that, if the defaulter cannot be found for any reason, whatsoever, there will be no sanction of law for an alternative method of service, which situation would, not only frustrate the mechanism of dispute resolution under the Act, but would also deprive the winner of the Award/decision/order from reaping the fruits of the decree, thus affording an unfair advantage to the defaulters/defendants. We, therefore, conclude that the view expressed in** **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **- 17 -** **People's Urban Co-operative Bank Ltd. (supra) does not reflect the correct legal position.** **14. Coming to the facts, we notice that the appellants herein were either served personally or through an adult member of their family, wherefore, the notice served cannot be held to be vitiated, for having been served upon such adult member. Point nos.2 and 3 formulated are also found against the appellants.** **15. Before confirming the judgment of the learned Single Judge, we should also refer to one judgment of the Hon'ble Supreme Court in Sunil Poddar and others v. Union Bank of India [(2008) 2 SCC 326], wherein emphasis is made** ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **==> picture [220 x 9] intentionally omitted <==** **on the question, whether the party concerned had notice of the date of hearing and had sufficient time to appear and answer the claim; rather than, whether the party was actually served with summons in accordance with the procedure laid down and in the manner prescribed. The relevant findings in paragraph no.23 are extracted here below:** _**“23. It is, therefore, clear that the legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order 5 of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that**_ **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **- 19 -** _**there was irregularity in service of summons. If the court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiff's claim, he cannot put forward a ground of non-service of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order 9 of the Code.”**_ **16. The finding of the learned Single Judge is precisely of this knowledge of the appellants about the proceedings, as specifically taken note of in paragraph no.15 of the judgment, especially when the appellants/defaulters are the former President of the Board of Directors of the respondent Society and his immediate kith and kin. This Court also notice that the appellants have refused to accept the** ## **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **- 20 -** **subsequent notice issued under Rule 81(e) of the Co-operative Societies Rules as regards proclamation of sale, which conduct deprives the appellants from urging any want of opportunity.** **17. We clarify that we have essentially answered the legal issues raised before us and has not gone into the particular facts and the mode of service of notice in each case, since the same is narrated in detail in paragraph nos.3 to 14 of the impugned judgment.** **We therefore find no illegality or infirmity with the judgment impugned, except in respect of the cost of Rs.25,000/- each awarded, which direction we choose to do away with. In all other respects, the Writ Appeals** **W.A. Nos.1574, 1601, 1602, 1603, 1607, 1613, 1615, 1617, 1618, 1619, 1620 and 1621 of 2023** **- 21 -** **fail. The impugned judgment will stand modified only to the limited extent, as indicated above.** **Sd/ANU SIVARAMAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** ww/skj