WP(C).No.15976 of 2020 — J. Manohari Amma & others v. The Joint Registrar of Co-operative Societies (General), Alappuzha; The Assistant Registrar of Co-operative Societies (General), Mavelikkara; Mavelikkara Taluk Service Co-operative Bank Ltd; Jayakumar B. Kurup; Udayakumar R

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 06TH DAY OF AUGUST 2020 / 15TH SRAVANA, 1942** ## **WP(C).No.15976 OF 2020** ## **PETITIONERS:** - **1 J.MANOHARI AMMA, AGED 78 YEARS, W/O.PRABHAKARAN PILLAI.V., KOTTAPPURATHU VEEDU, MATTOM SOUTH, THATTARAMBALAM P.O., MAVELIKARA TALUK, ALAPPUZHA DISTRICT.** - **2 GEETHA K.M, D/O.PRABHAKARAN PILLAI.V., EDAYILE VEETTIL THARAYIL, KANDALLOOR P.O., PULLUKULANGARA.** - **3 LEELA K.M, D/O.PRABHAKARAN PILLAI.V., DWARAKA, KOMAMA, AMBALAPPUZHA.** - **4 SREEDEVI K.M, D/O.PRABHAKARAN PILLAI.V., KOTTAPPURATHU KARTHIKA, MATTOM SOUTH, THATTARAMBALAM P.O., MAVELIKARA TALUK, ALAPPUZHA DISTRICT.** - **BY ADV. SRI.M.K.PRADEEPKUMAR** ## **RESPONDENTS:** - **1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) ALAPPUZHA-688001.** - **2 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL) MAVELIKKARA, ALAPPUZHA-690 101.** - **3 MAVELIKKARA TALUK SERVICE CO-OPERATIVE BANK LTD NO.707 MAVELIKKARA, REP BY ITS SECRETARY IN CHARGE-690101.** - **4 JAYAKUMAR B.KURUP, S/O.LATE BHASKARA KURUP, JAYABHAVAN, ERESHA SOUTH, CHETTIKULANGARA P.O., MAVELIKKARA, ALAPPUZHA -690 106.** **WP(C).No.15976 OF 2020** **2** **5 UDAYAKUMAR R, S/O.LATE RAGHAVAN, SANTHOSH BHAVAN, ARUNOOTTIMAMGALAM P.O., MAVELIKKARA, ALAPPUZHA -690 110.** **SRI K.C SANTHOSH KUMAR SC SRI BIMAL K NATH SR GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.15976 OF 2020** **3** ## **JUDGMENT** In this Writ Petition, the petitioners have challenged Exhibit P 13 order passed by the 1st respondent under Section 68(2) of the Kerala Co-operative Societies Act, 1969. (hereinafter referred to as "the Act"). The petitioners herein are the legal heirs of Sri V. Prabhakaran Pillai, a former President of the Mavelikkara Taluk Co-Operative Bank Ltd No 707. An order of surcharge has been imposed against the petitioners as the legal heirs of the deceased President to recover such amounts and limited to the assets of the deceased inherited by the petitioners. 2. I have heard Sri M.K.Pradeep Kumar, the learned counsel for the petitioners, and Sri.Bimal K. Nath, the learned Senior Government Pleader, who appears for respondents 1 and 2. 3. Sri. M.K. Pradeep Kumar, the learned counsel appearing for the petitioners submitted the order impugned has been passed ignoring the mandate of Section 68 (2) of the Act. It is the submission of the learned counsel that the Registrar has no powers to impose surcharge on the legal heirs of a deceased member. It is further submitted that the misappropriation involving several crores were carried out by a handful of employees for whose misdeeds the president of the Society could not have been proceeded against. He contended that though the statute provides for a remedy by way of appeal under Section **WP(C).No.15976 OF 2020** **4** 83(1) (e) of the Act, relegation of the petitioners to such a course will not be justified as the order passed is arbitrary and unreasonable. According to the learned counsel, the rule of exclusion of writ jurisdiction by the availability of an alternative remedy is a rule of discretion and nothing more. 4. Sri. Bimal K. Nath, the learned Government pleader has opposed the submissions. He would contend that Registrar is vested with the powers to ensure that the amounts assessed by way of surcharge is restored and for that purpose to take steps to recover the amount. He referred to the decision of this ## Court in **Thrikkadavoor Service Co-operative Ltd.** v **. Viswasankaran Pillai** [1990 (2) KLT 594] and also Rule 47 of the Cooperative Societies Rules and it is argued that the Committee is responsible for the misappropriation during its tenure and they cannot wash off their liability by placing the burden on someone else. According to the learned Government Pleader, the entire proceedings were carried out in a transparent manner in full compliance with the principles of natural justice and within the four corners of the statute governing the subject. 5. I have considered the submissions. Against an order of surcharge made by the Registrar under Section 68(2) of the Act, remedy by way of an appeal is provided under Section 83(1)(e) of the Act. When a statutory forum is created by law, ordinarily writ petitions are not to be entertained ignoring the said statutory dispensation. 6. In **Thansingh Nathmal** v. **Superintendent of Taxes** [AIR 1964 SC 1419], the Apex Court adverted to the rule of self - imposed restraint that writ petition will not be entertained if an effective remedy is available to the **WP(C).No.15976 OF 2020** **5** ## aggrieved person and observed: "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 Art.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 Art.226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up." ## 7. In **U.P. State Bridge Corpn. Ltd. v. U.P. Rajya Setu Nigam S.** **Karamchari Sangh** [(2004) 4 SCC 268] it was held that when the dispute relates to enforcement of a right or obligation under the statute and specific remedy is provided under the statute, the High Court should not deviate from the general view and interfere under Article 226 of the Constitution of India except when a very strong case is made out for making a departure. The person who insists upon such remedy can avail of the process as provided under the statute. (See also the decisions in **Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke** [(1976) 1 SCC 496], **Rajasthan SRTC v. Krishna Kant** [(1995) 5 SCC 75] **Chandrakant Tukaram Nikam v. Municipal Corpn. of Ahmedabad** [(2002) 2 SCC 542] and in **Scooters India v. Vijai E.V. Eldred** [(1998) 6 SCC 549]. **WP(C).No.15976 OF 2020** **6** 8. In **Punjab National Bank v. O.C. Krishnan** [(2001) 6 SCC 569], the Apex Court has held that where the hierarchy of appeals is provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction. 9. Having considered the contentions advanced by both sides in the light of the precedents above, I find no reason to entertain this Writ Petition. Accordingly, without prejudice to the right of the petitioners to move the appellate authority through an appeal under Section 83(1)(e) of the Act, the Writ Petition in its challenge against Ext.P13 order will stand dismissed. Before parting, I take note of the submission of the learned counsel for the petitioners that they require a breathing time to prefer appeal before the appellate authority. In view of the said submission, the operation of Ext.P13 order will stand stayed for a period of one month from today to enable the petitioners to move the appellate forum and seek appropriate orders. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** NS **WP(C).No.15976 OF 2020** **7** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE REPORT OF NAIVE PLUS SOFTWARE SOLUTIONS LTD, VIDE REFERENCE NO.NP/ALP/MTCP/BR2/CYBER/CRIME/2016-17 DATED 30/12/2016.** - **EXHIBIT P2 TRUE COPY OF THE DECISION OF URGENT ADMINISTRATIVE COMMITTEE MEETING HELD ON 31/12/2016.** - **EXHIBIT P3 TRUE COPY OF THE COMPLAINT DATED 31/12/2016 OF THE ADMINISTRATIVE COMMITTEE FILED BEFORE DISTRICT POLICE CHIEF, ALAPPUZHA.** - **EXHIBIT P4 TRUE COPY OF UNDERTAKING OF THE TREE DELINQUENT OFFICERS OF THE THAZHAKKARA BRANCH ALONG WITH THREE OTHERS EXECUTED BEFORE NOTARY PUBLIC ON 27/01/2017.** - **EXHIBIT P5 TRUE COPY OF THE A.R.C. NO.1/2017 BEFORE THE 1ST RESPONDENT, THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ALAPPUZHA.** - **EXHIBIT P6 TRUE COPY OF THE GIST OF THE REPORT DATED 22/03/2017 OF ASSISTANT REGISTRAR/ VALUATION OFFICER, KARTHIKAPPALLY PRIMARY CO-OPERATIVE VILLAGE AGRICULTURAL DEVELOPMENT BANK.** - **EXHIBIT P7 TRUE COPY OF THE NOTICE TO THE LATE SRI.V.PRABHAKARAN PILLAI WHO WAS THEN PRESIDENT OF MAVELIKKARA TALUK COOPERATIVE BANK LTD NO.707 AS PER ORDER NO.CRP(2) 6713/2016 DATED 05/05/2018 OF 1ST RESPONDENT.** - **EXHIBIT P8 THE TRUE COPY OF THE WRITTEN REPLY DATED 11/6/20F8 OF LATE SRI.V.PRABHAKARAN PILLAI WHO WAS THEN PRESIDENT OF MAVELIKKARA TALUK CO-OPERATIVE BANK LTD.NO.707.** **EXHIBIT P9 TRUE COPY OF THE REPORTED CASE AS 2019 KHC 559.** **WP(C).No.15976 OF 2020** **8** ## **EXHIBIT P10** **TRUE COPY OF THE DEATH CERTIFICATE DATED 4/6/2019 ISSUED BY THE REGISTRAR OF BIRTH, DEATHS AND MARRIAGE(COMMON) OF MAVELIKARA MUNICIPALITY.** - **EXHIBIT P11 TRUE COPY OF THE NOTICE FROM THE 1ST RESPONDENT, THE JOINT REGISTRAR OF COOPERATIVE SOCIETIES(GENERAL) ALAPPUZHA VIDE CRP(2) 6713/2016/3/SC/NOTICE DATED 13/5/20.** - **EXHIBIT P11(A) TRUE COPY OF LETTER NO.A42143/2020 DATED 29/4/20 OF THE THAHASILDAR MAVELIKKARA.** - **EXHIBIT P11(B) TRUE COPY OF THE REPORT DATED 31/3/2018 OF THE ASSISTANT REGISTRAR(GENERAL) MAVELIKKARA UNDER SECTION 68(1) OF THE ACT.** - **EXHIBIT P12 TRUE COPY OF THE WRITTEN OBJECTION FILED ON 5/6/20 BEFORE 1ST RESPONDENT BY THE 1ST PETITIONER.** - **EXHIBIT P13 TRUE COPY OF THE ORDER CRP(2) 6713/2016/3/SC DATED 15/6/20 OF 1ST RESPONDENT, THE JOINT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL) ALAPPUZHA.** ## **RESPONDENTS EXHIBITS:NIL**