WA Nos. 488 of 2020 and 498 of 2020, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **MONDAY, THE 21ST DAY OF DECEMBER 2020 / 30TH AGRAHAYANA, 1942** ## **WA.No.488 OF 2020** **AGAINST THE JUDGMENT DATED 26.03.2019 IN W.P.(C.)NO. 7321/2019(M) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 3 & 4:** - **1 THE PRESIDENT, MANAGING COMMITTEE MAVELIKARA TALUK CO-OPERATIVE BANK LTD. NO.707, HEAD OFFICE, PULIMOODU JUNCTION, MAVELIKARA P. O., ALAPPUZHA - 690 101.** - **2 MAVELIKARA TALUK CO-OPERATIVE BANK LTD. NO.707 HEAD OFFICE, PULIMOODU JUNCTION, MAVELIKARA P. O., ALAPPUZHA - 690 101., REPRESENTED BY ITS SECRETARY.** ## **BY ADV. SRI.K.C.SANTHOSHKUMAR** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1, 2 & 5:** - **1 M.JACOB DAVID AGED 83 YEARS S/O. LATE M. C. DAVID, MANIVELIL PUTHEN VILLA, KUNNAM P. O., THAZHAKKARA, MAVELIKARA - 690108, ALAPPUZHA DISTRICT.** - **2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **3 THE JOINT REGISTRAR (GENERAL) DEPARTMENT OF CORPORATION, ALAPPUZHA DISTRICT - 688 007.** WA.Nos.488 & 498 OF 2020 2 **4 THE BRANCH MANAGER MAVELIKARA TALUK CO-OPERATIVE BANK LTD. NO.707, THAZHAKKARA BRANCH, THAZHAKKARA P. O., MAVELIKARA, ALAPPUZHA - 690 102.** **R1 BY ADV. SMT.SANJANA R.NAIR R2 BY SRI. RENIL ANTO KANDAMKULATHY, GP** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.12.2020, ALONG WITH W.A.NO.498/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.Nos.488 & 498 OF 2020 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **MONDAY, THE 21ST DAY OF DECEMBER 2020 / 30TH AGRAHAYANA, 1942** ## **WA.No.498 OF 2020** **AGAINST THE JUDGMENT DATED 03.04.2019 IN W.P.(C.)NO. 9720/2019(L) OF HIGH COURT OF KERALA** ## **APPELLANT/4TH RESPONDENT:** **MAVELIKARA TALUK CO-OPERATIVE BANK LTD NO.707 REPRESENTED BY ITS SECRETARY, HEAD OFFICE, MAVELIKKARA.P.O, ALAPPUZHA-690101.** ## **BY ADV. SRI.K.C.SANTHOSHKUMAR** ## **RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 3:** **1 N.KRISHNANKUTTY, AGED 63 YEARS S/O.PACHUPILLAI,DWARAKA,VALYAKULANGARA, MAVELIKARA, ALAPPUZHA DISTRICT-690101.** **2 R.JAYASREE, AGED 57 YEARS D/O.JANARDHANAN PILLAI,DWARAKA, VALIYAKULANGARA,MAVELIKARA, ALAPPUZHA DISTRICT-690101.** **3 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF CO-OPERATION, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001.** WA.Nos.488 & 498 OF 2020 4 **4 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695001. 5 THE JOINT REGISTRAR, OFFICE OF THE JOINT REGISTRAR, CO-OPERATIVE SOCIETIES(GENERAL), TECHI ANGALAMMAN COMPLEX, OPP.ST.ANTONY'S SCHOOL, THIRUVAMADY, ALAPPUZHA-688002. R1 & R2 BY ADV. SRI.V.S.BABU GIREESAN R3 TO R5 BY SRI. RENIL ANTO KANDAMKULATHY, GP** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.12.2020, ALONG WITH W.A.NO.488/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.Nos.488 & 498 OF 2020 5 ## **JUDGMENT** Haripal, J. These appeals are preferred under Section 5 of the Kerala High Court Act challenging the judgments of the learned Single Judge in W.P.(C.) Nos. 7321/2019 and 9720/2019 respectively. 2. The second appellant in W.A. No. 488/2020 and the sole appellant in W.A. No. 498/2020 are one and the same, namely the Mavelikara Taluk Co-operative Bank Ltd. No.707, represented by its Secretary. The first appellant in W.A. No. 488/2020 is its President. Matters to be decided in both the writ appeals are the same. Both the appeals were heard together and are being disposed of by this common judgment. 3. W.P.(C.) No. 7321/2019 was instituted by the first respondent, an octogenarian aged 86 years, who had made fixed deposits in the appellant bank to the tune of Rs.16.5 lakhs. He moved the writ petition since the WA.Nos.488 & 498 OF 2020 6 appellants did not repay the amount on its maturity. When the matter was taken up before the learned Single Judge, the learned Standing Counsel for the Part-time Administrator, who is in-charge of the Bank, did not dispute the claim of the writ petitioner. However, due to financial difficulties, it was submitted that the bank is not in a position to repay the amount. After hearing counsel on both sides, by the impugned judgment dated 26.03.2019, the learned Judge directed the Part-time Administrator to re-pay the amount to the petitioner in twelve monthly equal instalments, commencing from 15.04.2019. Thereafter, the appellants moved R.P.No. 1130/2019 seeking to review the above said judgment. The grounds for review were that the bank is not in a position to arrange fund for honouring the judgment, that recovery of large amounts are due to the bank from its loanees, that large amounts are also due from officials of the Bank against whom charge of falsification of accounts, misfeasance and nonfeasance are pending. Thus the review petition was filed seeking enlargement of time. After hearing counsel on both sides, by order dated 04.12.2019 WA.Nos.488 & 498 OF 2020 7 the Court allowed the review petition 'to the limited extent of directing the Registrar of Co-operative Societies and the Joint Registrar to initiate immediate action and affect repayment of the eligible amounts due to the depositors, by invoking all necessary steps and measures including the sale of the assets of the Society, in accordance with law'. It is pertinent to note that though the review petition is shown as allowed, the instalment scheme adopted in the judgment dated 26.03.2019 has not been disturbed. 4. W.A. No. 488/2020 is filed challenging the judgment dated 26.03.2019, without mentioning about the order in the review petition dated 04.12.2019. In the writ appeal, the appellants have stated various straightening circumstances put in by the bank due to various reasons. According to them, the bank is in precarious financial condition, large amounts are due to be recovered to its credit, either because bad debts are pending or large amounts were misappropriated by the former employees against whom proceedings are pending. They have also stated the pendency of surcharge proceedings WA.Nos.488 & 498 OF 2020 8 against the then Managing Committee members and details of various amounts, in crores, due to the bank have been given in the grounds of appeal. 5. Similarly W.A.No. 498/2020 is directed against the judgment dated 03.04.2019 of the learned Single Judge. According to the learned counsel for the respondents 1 and 2, who are the petitioners in W.P.(C.) No. 9720/2019, Rs.19.30 lakhs is due to them from the bank, when the amount was not repaid on demand, they moved this Court with W.P.(C.) No. 37935/2017, which was resisted by the appellants. After hearing counsel on both sides, by judgment dated 30.11.2018, the said writ petition was disposed of directing the third respondent Joint Registrar to consider and pass appropriate orders on two representations filed by them. Thereafter, the Joint Registrar passed the Ext.P3 order directing to repay the amount with interest, if there is no legal impediment in the same. Before passing the order, it was reported to the Joint Registrar that some liabilities are outstanding against the fixed deposits made by the writ petitioners. Then the writ petitioners moved this Court for WA.Nos.488 & 498 OF 2020 9 quashing the Ext.P3 order, reiterating that they have not availed any loan or caused any liability against the fixed deposits, that the original fixed deposit receipts are very much with them. After hearing counsel on both sides, by the impugned judgment the learned Single Judge directed the Part-time Administrator to consider the whole issue, without being influenced by Ext.P3 and pay the proceedings of the deposits to the petitioners, if it is found due to them in law. Such an amount was directed to be paid in eight monthly instalments, in the light of the submission that the bank has various commitments towards other depositors. 6. There also the appellant moved a review petition and by order dated 04.12.2019, the learned Single Judge allowed the review petition on the same lines as stated in W.P.(C.) No. 7321/2019, without touching the direction given in the judgment on 03.04.2019. 7. We heard the learned Standing Counsel for the appellants and also the learned counsel for the writ petitioners. The learned Standing Counsel wanted to say that there is dispute between the parties which can be resolved WA.Nos.488 & 498 OF 2020 10 only through the mechanism provided under the Cooperative Societies Act. But both the counsel for the party respondents have produced the original fixed deposit receipts through which various amounts were deposited by them in the appellant bank. In fact there is no dispute with regard to the amount due to the first respondent in W.A. No. 488/2020. He is approaching this Court for the second time for getting back Rs.16.5 lakhs deposited by him on various occasions. Earlier when a claim for repayment of Rs.3,00,000/- was delayed by the appellants, he had moved W.P.(C.) No. 27922/2017 and only after getting the Ext.P7 judgment he could withdraw that amount. W.P.(C.) No. 7321/2019 was filed for getting back Rs.16.5 lakhs which was remaining in deposit with the appellants. 8. As mentioned earlier, the respondents 1 and 2 in W.A.No. 498/2020 have approached this Court twice for getting back the amount deposited by them in the Bank. Here the withdrawal was resisted on the plank that some amounts were taken as loan from the fixed deposits. But the respondents have emphatically denied it and produced the WA.Nos.488 & 498 OF 2020 11 original fixed deposit receipts before Court to rebut the claim of the appellants that the entire amounts cannot be repaid since the liabilities are outstanding against them. We have no doubt that these are incongruous propositions. If the original documents namely, fixed deposit receipts are retained by the depositors, it cannot be believed that the bank had permitted to avail loan from the amount. Whatever it may be, the observation made by the learned Single Judge in the judgment dated 03.04.2019 does not warrant interference. 9. After having conceded to pay the amount, the appellants cannot be heard to say straightening circumstances before the appellate court for denying the amount due to the depositors. It is their money kept in deposit by the appellants. On the deposits becoming mature, the depositors cannot be driven from pillar to post, for getting back the same. As far as depositors are concerned, it is not their concern as to whether the amount was misappropriated by the employees or mismanaged by the managing committee. They cannot be forced to make out a WA.Nos.488 & 498 OF 2020 12 'dispute' and driven for invoking provisions under the Cooperative Societies Act. They are certain that so much amounts are due to them which are supported by documents in the form of fixed deposit receipts issued by the Bank. Similarly, they cannot bear the brunt of the mischief, if any, played by someone else. 10. Even though the appellants had filed review petitions and obtained an order on 04.12.2019, the order in the review petitions has not been challenged in the appeals. This aspect worsens the case of the appellants. As held by the Hon'ble Supreme Court in **DSR Steel (Private) Limited v. State of Rajasthan and Others [(2012) 6 SCC 782]** , once the review petition is disposed of, the judgment in the writ petitions merges with the order in review applications. In such a case the Hon'ble Supreme Court has considered various situations and held that in a case where the review application is allowed, that order passed consequent to the review petition alone is appealable. In this connection paragraph 25.1 of the said judgment is worth to be extracted:- WA.Nos.488 & 498 OF 2020 13 “25.1 One of the situations could be where the review application is allowed, the decree or order passed by the court or tribunal is vacated and the appeal/proceedings in which the same is made are reheard and a fresh decree or order passed in the same. It is manifest that in such a situation the subsequent decree alone is appealable not because it is an order in review but because it is a decree that is passed in a proceeding after the earlier decree passed in the very same proceedings has been vacated by the court hearing the review petition.” Here, may be because of the fact that, the order in the review petitions does not disturb the judgments in the writ petitions, that prompted the appellants to move for challenging the judgments. 11. In W.A. No. 488/2020, there is absolutely no dispute with regard to the amount due to the first respondent. Similarly, in the light of the fallow dispute raised by the appellants and having regard to the fact that the original fixed deposits are still with the depositors, disposing of the W.P.(C.) No. 9720/2019 with a direction to the Part-time Administrator also does not call for WA.Nos.488 & 498 OF 2020 14 interference in appeal. On these considerations, we do not find any reason to interfere with the judgments under challenge. The writ appeals are dismissed. **Sd/C.T.RAVIKUMAR JUDGE Sd/K.HARIPAL JUDGE DCS/24.12.2020** WA.Nos.488 & 498 OF 2020 15 ## **APPENDIX OF W.A. NO. 488/2020** **RESPONDENT'S/S ANNEXURE:** **ANNEXURE- R1(a):TRUE COPY OF THE REPRESENTATION OF THE 1ST RESPONDENT SHOWING THE ENDORSEMENT OF THE SECRETARY** WA.Nos.488 & 498 OF 2020 16 ## **APPENDIX OF W.A. NO. 498/2020** ## **RESPONDENT'S/S ANNEXURE:** **ANNEXURE- R1(a):TRUE COPY OF THE DECLARATION GIVEN BY ME TO THE ASSISTANT REGISTRAR ON 15.01.2018**