Remanded

George Mathew v. Assistant Registrar (General) of Co-Operative Societies

Kerala HC13 Dec 2017WP(C)/35035/2017

Case brief

AI extract

What is this about?

Two writ petitions were merged. One sought to compel the Assistant Registrar to order a bank to disburse a loan balance and penalize the bank. The bank challenged the Registrar's order as void for want of notice. The court set aside the Registrar's order for violating natural justice and directed a fresh inquiry with notice to the bank.

What did the court decide?

Order dated 28.9.2017 of Assistant Registrar set aside; directed to reconsider complaint with notice to all parties.

George Mathew Vs Assistant Registrar (General) of… — Consumer Protection | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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WEDNESDAY, THE 13TH DAY OF DECEMBER 2017/22ND AGRAHAYANA, 1939

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WP(C).No. 35035 of 2017 (D)

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PETITIONER(S) :

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1. GEORGE MATHEW, 37 YEARS, S/O. MATHEW K.S, MADATHIPARAMBIL HOUSE, KOTHAVARA P.O, VAIKOM, KOTTAYAM DISTRICT.

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2. ROSAMMA MATHEW,

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67 YEARS, W/O. MATHEW K.S, MADATHIPARAMBIL HOUSE, KOTHAVARA P.O, VAIKOM, KOTTAYAM DISTRICT.

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BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI

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RESPONDENT(S) :

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1. ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, OPPOSITE TO SEETHARAM AUDITORIUM, VAIKOM, KOTTAYAM - 686 141.

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2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM - 695 001.

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3. THE ULLALA SERVICE CO-OPERATIVE BANK LIMITED NO: 1142, THALAYAZHAM P.O, VAIKOM, PIN : 686 607, REPRESENTED BY ITS SECRETARY.

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R1 & R2 BY SR.GOVERNMENT PLEADER SRI.BIMAL K.NATH R3 BY ADVS. SRI.J.JULIAN XAVIER

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SRI.FIROZ K.ROBIN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-12-2017, ALONG WITH W.P(C).NO. 37350 OF 2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 35035 of 2017 (D)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE ISSUED TO THE 1ST PETITIONER FROM THE REGISTRATION DEPARTMENT DATED 25/7/2017.

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EXHIBIT P2 TRUE COPY OF THE COMPLAINT DATED 27.09.2017 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT.

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EXHIBIT P3 TRUE COPY OF THE COMMUNICATION NO.3301/2017(1) DATED 28/09/2017 ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER.

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EXHIBIT P4 A TRUE COPY OF THE COMMUNICATION NO.3301/2017 DATED 28/09/2017 ISSUED BY THE 1ST RESPONDENT TO THE ULLALA SERVICE COOPERATIVE BANK LIMITED NO: 1142, THALAYAZHAM.

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EXHIBIT P5: TRUE COPY OF THE ACKNOWLEDGMENT OF INCOME TAX RETURN SUBMITTED BY THE 1ST PETITIONER FOR ASSESSMENT YEAR 2015-2016.

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EXHIBIT P6: TRUE COPY OF THE ACKNOWLEDGMENT OF INCOME TAX RETURN SUBMITTED BY THE 1ST PETITIONER FOR ASSESSMENT YEAR 2016-2017.

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EXHIBIT P7: TRUE COPY OF THE GEHAN NO. G1019/2016 EXECUTED IN FAVOUR OF THE 3RD RESPONDENT BY SMT.KANAKAMMA.

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EXHIBIT P8: TRUE COPY OF THE FAIR VALUE LIST PERTAINING TO PROPERTY FALLING IN SY.NOS.156/3, 156/3/3 AND 156/4.

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EXHIBIT P9: TRUE COPY OF THE GEHAN NO.G994/2016 EXECUTED IN FAVOUR OF THE 3RD RESPONDENT BY SRI.SATHYAN.

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EXHIBIT P10: TRUE COPY OF THE FAIR VALUE LIST PERTAINING TO PROPERTY FALLING IN OLD SY.NO. 14/8B/2.

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EXHIBIT P11: TRUE COPY OF THE GEHAN NO.G 1082/2016, EXECUTED IN FAVOUR OF THE 3RD RESPONDENT BY SRI.DEEPESH.

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EXHIBIT P12: TRUE COPY OF THE FAIR VALUE LIST PERTAINING TO PROPERTY FALLING IN OLD SURVEY NO. 219/4/6/1.

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EXHIBIT P13: TRUE COPY OF THE GEHAN NO.G 1016/2016, EXECUTED IN FAVOUR OF THE 3RD RESPONDENT BY SRI.RENJEEV.

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WP(C).No. 35035 of 2017 (D)

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EXHIBIT P14: TRUE COPY OF THE FAIR VALUE LIST PERTAINING TO PROPERTY FALLING IN OLD SURVEY NO. 174/21.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.S.TO JUDGE.

Msd.

ANIL K. NARENDRAN, J.

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W.P(C)Nos.35035 & 37350 of 2017

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Dated this the 13^th day of December, 2017

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J U D G M E N T

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W.P.(C)No.35035 of 2017:- The petitioners, who are members

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of Ullala Service Co-operative Bank Ltd. No.1142, the 3^rd respondent-Bank, had applied for loan for an amount of Rs.20,00,000/- for business purpose, offering their property having a total extent of 25 cents at Kothavara, Thalayazham Village as the collateral security. According to the petitioners, the respondentBank had sanctioned loan for an amount of Rs.10,00,000/- to the 1^st petitioner-son and a further amount of Rs.10,00,000/- to the 2^nd petitioner-mother. As directed by the 3^rd respondent-Bank the petitioners had executed 'gehan' in favour of the Bank. Though Ext.P1 encumbrance certificate dated 25.7.2017 would show

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execution of 'gehan' in favour of the Bank for an amount of Rs.10,00,000/- each, the Bank disbursed only an amount of Rs.2,00,000/- as loan, in the month of August, 2017. The 1^st petitioner submitted Ext.P2 complaint dated 27.9.2017 before the Assistant Registrar (General) of Co-operative Societies, Vaikom, the

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W.P(C)Nos.35035 & 37350 of 2017

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:-2-:

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1^st respondent. On 28.9.2017, the 1^st petitioner was informed vide Ext.P3 communication dated 28.9.2017 of the 1^st respondentAssistant Registrar that necessary directions have already been issued to the 3^rd respondent-Bank to disburse the loan amount. A copy of Ext.P4 communication dated 28.9.2017 of the 1^st respondent-Assistant Registrar addressed to the 3^rd respondentBank was also enclosed along with Ext.P3. Since the 3^rd respondent-Bank has not taken any action as per Ext.P4, the petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1^st respondent-Assistant Registrar to implement Ext.P4 decision dated 28.9.2017 at the earliest and to arrange disbursement of the balance loan amount by the 3^rd respondentBank at the earliest. The petitioners have also sought for a writ of mandamus commanding the 1^st respondent to take action under Section 66B of the Kerala Co-operative Societies Act 1969 against the officers of the 3^rd respondent-Bank for non-compliance of Ext.P4.

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W.P(C)Nos.35035 & 37350 of 2017

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:-3-:

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On 6.11.2017 when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for respondents 1 and 2 and notice by special messenger was ordered to the 3^rd respondent.

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The 3^rd respondent-Bank has filed counter affidavit opposing the reliefs sought for in this writ petition and the petitioners have also filed a reply affidavit reiterating the contentions raised in the writ petition. The petitioners have also produced certain additional documents along with their rely affidavit.

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W.P.(C)No.37350 of 2017:- The 3^rd respondent-Bank in W.P(C)No.35035 of 2017 has filed this writ petition seeking a writ of certiorari to quash Ext.P2 order/letter dated 28.9.2017 issued by the Assistant Registrar (General) of Co-operative Societies, Vaikom, which is Ext.P4 in the other writ petition, contending that

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the said order/letter issued by the Assistant Registrar without notice to the Bank is liable to be set aide for the sole reason that it has been issued in violation of the principles of natural justice

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and that, the interference made by the Assistant Registrar with the day-today administration of the Bank is illegal and without any jurisdiction. The Bank has also raised various contentions justifying their action in not disbursing loan amount in excess of Rs.2,00,000/-.

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Heard the learned counsel for the petitioner in W.P.(C) No.35035 of 2017, the learned Government Pleader for respondents 1 and 2 and also the learned counsel for the 3^rd respondent-Bank/petitioner in W.P.(C)No.37350 of 2017.

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Since Ext.P4 sought to be implemented in W.P.(C) No.35035 of 2017 is under challenge in W.P.(C)No.37350 of 2017, the legality or otherwise of the said order/letter, which is marked as Ext.P2 in W.P.(C)No.37350 of 2017, has to be decided first.

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The specific stand taken by the 3^rd respondent-Bank is that the said order/letter dated 28.9.2017 is one issued without notice to them and as such, the same is liable to be set aide as it

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has been issued in violation of the principles of natural justice.

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The fact that such an order/letter has been issued

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without notice to the the 3^rd respondent-Bank is not in dispute. As evident from the order/letter dated 28.9.2017, the 1^st petitioner moved a complaint before the Assistant Registrar on 27.9.2017 highlighting his grievance against non-disbursement of the entire loan amount. Based on the said complaint, the Assistant Registrar issued the aforesaid order/letter on the very next day, i.e., 28.9.2017. Once it is found that the order/letter dated 28.9.2017 of the Assistant Registrar is one issued in violation of the principles of natural justice, the same cannot be sustained in law.

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The learned counsel for the 3^rd respondent-Bank would submit that, since the value of the property mortgaged is very meager it was decided not to disburse the entire loan without getting sufficient security and the said fact was intimated to the 1^st petitioner in W.P.(C)No.35035 of 2017. However he did not care to furnish additional security and hence the petitioner Bank took a decision on 12.9.2017 not to disburse the amount. Thereafter, the Bank has also cancelled the 'gehan' executed by the 2^nd petitioner-mother on 26.10.2017, and the said fact was

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also intimated to the 1^st petitioner-son. Per contra, the learned counsel for the petitioners in W.P.(C)No.35035 of 2017 would contend that, the petitioners are not issued with any such communication from the 3^rd respondent Bank.

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Having considered the rival submissions, these writ petitions are disposed as follows;

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(i) The 3^rd respondent-Bank shall communicate to the petitioners in W.P.(C)No.35035 of 2017, within a period of one week from the date of receipt of a certified copy of this judgment, a copy of its decision dated 12.9.2017 not to disburse the entire loan without getting sufficient security and also its communication dated 26.10.2017 addressed to the 1^st petitioner-son regarding cancellation of the 'gehan' executed by the 2^nd petitioner-mother. It would be open to the petitioners to challenge the said decision/ communication before appropriate forum, in accordance with law.

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(ii) The order/letter dated 28.9.2017 of the 1^st respondentAssistant Registrar (Ext.P2 in W.P(C).No.37350 of 2017/Ext.P4 in W.P.(C)No.35035 of 2017) is set aside, as it has been issued in violation of the principles of natural justice, and the 1^st respondent-Assistant Registrar is directed to reconsider the complaint dated 27.9.2017 made

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:-7-:

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by the 1^st petitioner (Ext.P2 in W.P.(C)No.35035 of 2017) and pass appropriate orders thereon, strictly in accordance with law, with notice to the petitioners and also to the 3^rd respondent-Bank, as expeditiously as possible, at any rate, within a period of four weeks from the date of production of a certified copy of this judgment.

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All the contentions raised by both sides are left open to be raised before the appropriate forum.

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Sd/- ANIL K. NARENDRAN

JUDGE

//True Copy//

P.A to Judge

George Mathew v. Assistant Registrar (General) of Co-Operative Societies

Case brief

What is this about?

What did the court decide?

George Mathew v. Assistant Registrar (General) of Co-Operative Societies

Case brief

What is this about?

What did the court decide?

What the court decided

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