Disposed

The Keezhoor Service Co-Operative Bank LTD.NO.K-323 v. the Kaduthuruthy Co-Operative Rubber Marketing and Processing Society Ltd. NO,K-323

Kerala HC22 Feb 2018OP(C)/517/2018

Case brief

AI extract

What is this about?

In an original petition under Article 227 of the Constitution, the High Court directed the Sub Court, Kottayam, to dispose of an execution application within 3 to 4 weeks and deferred the auction of 1st respondent's property pending the outcome of the application.

What did the court decide?

Direction to Sub Court to dispose of Execution Application No.154 of 2018 within 3 to 4 weeks and defer auction proceedings pending its decision.

The Keezhoor Service Co-Operative Bank LTD.NO.K-323… — Execution and Attachment | Kerala HC (2018)

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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 ALEXANDER THOMAS

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THURSDAY, THE 22ND DAY OF FEBRUARY 2018 / 3RD PHALGUNA, 1939

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OP(C).No. 517 of 2018 (O)

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EA 154 OF 2018 IN EP 249 OF 2015 PRINCIPAL SUB COURT, KOTTAYAM.

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PETITIONER/THIRD PARTY

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THE KEEZHOOR SERVICE CO-OPERATIVE BANK LTD.NO.K-323, KEEZHOOR P.O., 686 605, REPRESENTED BY ITS SECRETARY, KEEZHOOR P.O., KOTTAYAM-686 605.

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BY ADVS.SRI.ALEX.M.SCARIA SMT.SARITHA THOMAS.

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RESPONDENTS/JUDGMENT DEBTOR AND AWARD HOLDER

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1. THE KADUTHURUTHY CO-OPERATIVE RUBBER MARKETING AND PROCESSING SOCIETY LTD NO. 1397, REPRESENTED BY ITS ADMINISTRATOR, KADUTHURUTHI P.O., KOTTAYAM-686 604.

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2. THE KADUTHURUTHY REGIONAL CO-OPERATIVE SOCIETY LTD. NO.4061, REPRESENTED BY ITS SECRETARY, KADUTHURUTHY P.O., KOTTAYAM-686 604.

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R BY SRI.K.C.SANTHOSHKUMAR R2 BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Hr..... 28-02-2018.

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OP(C).No. 517 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE AWARD DATED 09.08.2017 IN ARC NUMBER 1 OF 2016.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 20.07.2015 IN WP(C) NO. 29112 OF 2014 OF THIS HONOURABLE COURT.
EXHIBIT P3 TRUE COPY OF THE COMMON JUDGMENT DATED 27.03.2017 IN WP 11424 OF 2016 OF THIS HONOURABLE COURT.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 20.09.2016 BEARING NO. H. M. 5791/16 ISSUED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOTTAYAM.
EXHIBIT P5 TRUE COPY OF EA NUMBER 154 OF 2018 FILED UNDER SECTION 47 OF THE CPC BEFORE THE HONOURABLE SUB JUDGES COURT, KOTTAYAM.
EXHIBIT P6 TRUE COPY OF THE MEMORANDUM OF WRIT PETITION IN WP(C) 5137/18.

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RESPONDENT(S) EXHIBITS

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NIL

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// TRUE COPY// P.S TO JUDGE. Hr..... 28-02-2018.

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ALEXANDER THOMAS, J .

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O.P.(C) No. 517 of 2018

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Dated this the 22^nd day of February, 2018

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JUDGMENT

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The main prayer in this Original Petition (Civil) filed under the enabling provisions of Article 227 of the Constitution of India is as follows :

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“Issue a direction to the learned Sub Judge of the Principal Sub Court, Kottayam to hear and dispose of Ext.P5 application within a time to be fixed by this Hon'ble Court prior to proceeding further in E.P. No.249 of 2015 on the files of the Sub Court, Kottayam.”

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Heard Sri. Alex M. Scaria, learned counsel appearing for

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the petitioner, Sri. K.C. Santhosh Kumar, learned counsel appearing for respondent No.1 and Sri.T.R. Harikumar, learned counsel appearing for respondent No.2.

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It is stated that the petitioner is a Co-operative Society constituted under the Kerala Co-operative Societies Act and the Rules framed there under. The petitioner Society was constrained to approach the competent authority under Section 69 of the Kerala Co-operative Societies Registration Act, 1969 for realisation of money due from the 1^st respondent by filing ARC No.1 of 2016. In that proceedings, Ext.P1 award has been rendered on 09.08.2017 in ARC No.1 of 2016 whereby the petitioner has been

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OP(C) : 517 of 2018

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-:2:-

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allowed to realise an amount of Rs.20,47,571/- with interest from the 1^st respondent Society. It is the case of the petitioner that though the petitioner has secured Ext.P1 award against the 1^st respondent, that due to coercive move of the 1^st respondent Society with the concurrence of the officials concerned, the petitioner is not in a position to enforce the award. But at the same time the 2^nd respondent has given permission to execute the award secured by it and such execution proceedings have been set in motion by the 2^nd respondent before the Civil Court concerned. It is the case of the petitioner that now the only property of the 1^st respondent is going to be auctioned in the execution petition filed by the 2^nd respondent and this has come to the notice of the petitioner only recently, due to lack of publicity in that regard. The petitioner Society has now filed Ext.P5 execution application under Section 47 of the CPC as E.A. No.154 of 2018 in E.P. No.249 of 2015 before the Sub Court, Kottayam. The reliefs sought for by the petitioner in E.A. No.154 of 2018 are as follows :

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“1. To declare that the property brought for sale in this execution petition cannot be sold for realising the alleged amount due to the 1^st counter petitioner.

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To allow the petitioner to realise the cost of the petition from the counter petitioners.

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OP(C) : 517 of 2018

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-:3:-

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To allow such other reliefs that this court deems fit in the course of the trial.”

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It is now submitted by both sides that E.A. No.154 of 2018

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filed by the petitioner is now posted before the Sub Court, Kottayam on 26.02.2018. The limited prayer made by the petitioner in this OP(C) is for a direction from this Court is for early disposal of E.A. No.154/2018 and that until orders are passed on Ext.P5 execution application, the auction in respect of the sale proceedings notified in the above Execution Petition may be ordered to be kept in abeyance.

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Accordingly, it is ordered in the interest of justice that the Sub Court, Kottayam to ensure that necessary measures are taken for early disposal of Ext.P5 EA No.154 of 2018 in E.P. No.249 of 2015, without much delay, preferably within a period of 3 to 4 weeks of the production of certified copy of this judgment and after hearing all parties concerned. It is further ordered in the interest of justice that until orders are passed by the Sub Court, Kottayam on E.A. No.154 of 2018 in E.P. No.249 of 2015, further proceedings in the above said proposed auction referred to herein above will stand deferred. This direction has been issued only for the limited purpose of preservation the subject matter of the lis and shall not

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OP(C) : 517 of 2018

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-:4:-

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be construed even remotely as an expression of opinion of this court regarding the merits of the controversy between the parties, which is fully left with the domain and power of the execution court while considering Ext.P5 application. The petitioner will produce a certified copy of this judgment before the Sub Court, Kottayam for necessary information.

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With these observations and directions, this Original Petition (Civil) will stand finally disposed of.

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Sd/- ALEXANDER THOMAS, JUDGE

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ttb

The Keezhoor Service Co-Operative Bank LTD.NO.K-323 v. the Kaduthuruthy Co-Operative Rubber Marketing and Processing Society Ltd. NO,K-323

Case brief

What is this about?

What did the court decide?

The Keezhoor Service Co-Operative Bank LTD.NO.K-323 v. the Kaduthuruthy Co-Operative Rubber Marketing and Processing Society Ltd. NO,K-323

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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