Thankey Service Co-Operative Bank Ltd. NO.1003, v. the Registrar of Co-Operative Societies

Kerala HC25 Nov 2019WP(C)/29527/2019

Case brief

AI extract

What is this about?

The High Court set aside an order by the Human Rights Commission directing a cooperative bank to extend One Time Settlement Scheme benefits and waive interest. The Court held the Commission lacked jurisdiction as the dispute involved a monetary claim adjudicated under the Kerala Co-operative Societies Act, where powers to write off debts vest solely with the Government or Registrar.

What did the court decide?

The order in HRMP No.11245 of 2018 passed by Human Rights Commission dated 31.05.2019 is set aside.

Thankey Service Co-Operative Bank Ltd. NO.1003, Vs the… — Banking and Recovery | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941

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WP(C).No.29527 OF 2019(M)

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PETITIONER/S:

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THANKEY SERVICE CO-OPERATIVE BANK LTD. NO.1003, REPRESENTED BY ITS SECRETARY, KADAKKARAPPALLY P.O., CHERTHALA, ALAPPUZHA DISTRICT-688529.

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BY ADVS. SRI.T.R.HARIKUMAR SRI.ARJUN RAGHAVAN SRI.ADITHYA RAJEEV

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RESPONDENTS:

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1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM, PIN-695001.

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2 THE JOINT REGISTRAR OF CO-OPERATIVE (GENERAL), ALAPPUZHA, PIN-688001.

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3 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), CHERTHALA, ALAPPUZHA, PIN-688552.

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4 FRANCIS T.L., S/O.LONAN, THOTTUKADAVIL, KADAKKARAPPALLY P.O., CHERTHALA, ALAPPUZHA DISTRICT-688529.

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R4 BY ADV. SMT.M.CHANDRALEKHA

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OTHER PRESENT:

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SR.GP SRI.SURIN GEORGE IPE FOR R1-R3,

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.29527/2019

“C.R.”

JUDGMENT

Dated this the 25^th day of November, 2019

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S.Manikumar, CJ

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Challenge is to an order made by Human Rights Commission in HRMP No.11245/2018 dated 31.05.2019 by which, Human Rights Commission directed the Secretary of Thankey Service Co-operative Bank Ltd. No.1003, petitioner herein, to extent the benefit of One Time Settlement Scheme after waving interest and penal interest.

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2. Grounds leading to the filing of writ petition are that:

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“A. Liability of the 4"‘ respondent stands crystallised by way of Ext-P3 award under section 69 of the KCS Act. The 4^th respondent had, in fact, appeared and participated in the said proceedings. If he had any grievance with respect to the quantum or the adjudication, he should have raised an objection before the said forum. After suffering Ext-P3 award, the 4^th respondent cannot now chose to approach another forum and get Ext-P3 award modified.

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B. The State Human Rights Commission under Section 10 (2) r/w Section 29 of the Protection of Human Rights Act, 1993 had issued regulations, for the purpose of regulating its own procedure. The said regulations were named as the Kerala Human Rights Commission (Procedure) Regulations, 2001. Section 36 of the Protection of Human Rights Act lists out matters which are not subject to the jurisdiction of the Human Rights Commission.

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Similarly clause 17 of the State Regulations specifically envisages the matters which cannot be subject to the jurisdiction of the State Human Rights Commission. Clause 17 (g) of the State Regulations specifically states that if the complaint does not disclose any human right violation, the Human Rights Commission cannot entertain such a complaint. Admittedly, Ext-P5 complaint does not disclose any human rights violation, incapacitating the State Human Rights Commission from issuing a direction in the nature of Ext-P7 diluting Ext-P3 award.

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C. This Hon'ble Court as well as the Hon'ble Apex Court in a catena of decisions had declared that if the impugned order is completely without jurisdiction or opposed to clear statutory provision or violative of principles of natural justice or is against settled principles of law as per decision of the Hon'ble Supreme Court or Jurisdictional High Court, such order is liable to be interdicted by this Hon'ble Court by exercising powers under Art.226 of the Constitution of India.

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D. The petitioner is a society registered under Kerala Co-operative Societies Act, 1969. It is also an admitted fact that the credit facility was availed by the 4^th respondent, and thus the issue in hand is a monetary dispute. The Kerala Co-operative Societies Act, is a complete code by itself which lays down clear cut procedures as to how the monetary disputes therein have to be adjudicated. The Registrar of Co-operative Societies is vested with the power to adjudicate the monetary disputes, and the Arbitration Court constituted under Section 69 is empowered to consider other matters pertaining to the service of the employees as well as the issues relating to the establishment. In the appellate remedy is also

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W.P.(C) No.29527/2019

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provided therein by way of an appeal or revision to the Cooperative Tribunal. Thus, when a statute specifically provides for a particular manner in which the issue has to be adjudicated, another statutory Authority cannot impose its authority by passing all such statutory rigours.”

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On the above grounds and inviting the attention of this Court to Section 74(f) of the Kerala Co-operative Societies Act, 1969, Mr.T.R.Harikumar, learned counsel for the writ petitioner, submitted that Human Rights Commission has no jurisdiction to entertain a complaint and to direct waiver of interest and penal interest. Power is conferred only to the Government or Registrar to write off agricultural or non agricultural debts of borrowers of any society.

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When confronted with Section 74(f) of the Co-operative Societies Act, on the aspect of exclusion of the jurisdiction of Human Rights Commission to entertain a complaint, which relates to a contract of availing a loan of Rs.1,80,000/- during the year 2008 from the Thankey Service Cooperative Bank Ltd., non payment thereof, resulting in interest and penal interest and as to whether contractual matters can be adjudicated by Human Rights Commission, Smt.T.M.Chandralekha, learned counsel for the 4^th respondent, has no answer to the bar under the provisions of Section 74(f) of

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W.P.(C) No.29527/2019

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the Co-operative Societies Act. She only submit that a direction be given to Thankey Service Co-operative Bank Ltd., writ petitioner, to extent the benefit of One Time Settlement Scheme.

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Heard learned counsel for the parties and perused the material available on record.

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Loan availed on 25.9.2008 for an amount of Rs.1,80,000/- for business purposes with repayment schedule for 36 months (3 years) is not disputed. Society has filed an Arbitration Case under Section 69 of the Kerala Co-operative Societies Act. Mr.Lonan (father of respondent No.4/complainant before the Human Rights Commission) approached the Society and availed yet another loan facility to clear earlier loan as well as allied purposes. An amount of Rs.1,80,000/- was borrowed from Thankey Service Co-operative Bank during 2008. Loan was renewed during 2014, at a total sum of Rs.3,80,000/with payment schedule 48 months (4 years). Loan was not promptly paid. Respondent No.4 approached the District Collector seeking waiver of amount. Registrar of Co-operative Societies, Thiruvananthapuram, respondent No.1, sent Exhibit-P2 communication to the writ petitioner Society. Through the Assistant Registrar of Co-operative Societies (General), Cherthala, respondent No.3, to extend the availability of the benefit of One Time Settlement Scheme,

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W.P.(C) No.29527/2019

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similar letter has been sent by the District Collector. Despite above, writ petitioner did not approach the 4^th respondent.

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Pleadings and materials on record disclose that left with no other alternative, writ petitioner Society filed a petition before the Arbitrator vide ARC No.348/2017 (Exhibit-P3) to realise an amount of Rs.5,17,932/- @ 15% interest on principal amount of Rs.3,77,222/- from 1.7.2016 from the assets of respondent No.4. Respondent No.4 entered appearance in the said proceedings and an award for Rs.5,17,932/- was ordered.

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When the writ petitioner was contemplating to execute the award, an intimation was received from the office of Human Rights Commission to appear before the said authority as well as to file a detailed report with regard to the complaint filed by respondent No.4, vide intimation HRMP No.11245/18/A/P dated 3.1.2019 (Exhibit-P4) issued by the Secretary of Human Rights Commission.

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Pleadings further discloses that complaint dated 22.12.2018 was filed in the name of Lonan, father of respondent No.4, who expired in August, 2006. Though a detailed objection was filed, Human Rights Commission without adverting to the same, has passed an order solely taking into account the financial constraint projected by respondent No.4. Without addressing the

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W.P.(C) No.29527/2019 7

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issue as to whether the Commission has jurisdiction or not?, loan availed from the writ petitioner Society is purely contractual in nature. It is further seen that when there is an award passed by an Arbitrator directing payment of interest, as stated supra, against which an appeal remedy is provided under Chapter XIII of the Co-operative Societies Act, Human Rights Commission by issuing an order in HRMP No.11245 of 2018 dated 31.05.2019 has indirectly interfered with the order passed by the Arbitrator vide ARC No.348/2017 dated 22.5.2017, by directing waiver of interest and penal interest. Human Rights Commission also directed for One time Settlement Scheme.

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One Time Settlement Scheme has not been responded by respondent No.4. Attitude of respondent No.4 is not bona fide. Besides, Section 74 of the Kerala Co-operative Societies Act does not empower any authority/commission other than Government or Registrar to write off agricultural or non-agricultural debts of borrowers of any society. Section 74(f) of the Kerala Co-operative Societies Act is extracted hereunder:

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Chapter XB -

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“74F. Write off of loans - Notwithstanding anything contained in any Act or Rules, no authority or Commission, other than the Government or Registrar, shall have the power to write off agricultural or non agricultural debts or borrowers of any society.”

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W.P.(C) No.29527/2019

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In the light of above discussion, we are in view of that order in HRMP No.11245 of 2018 passed by Human Rights Commission dated 31.05.2019 is without jurisdiction and, therefore, liable to be set aside.

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Accordingly, impugned judgment is set aside.

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Sd/- S.MANIKUMAR, CHIEF JUSTICE

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Sd/- A.M.SHAFFIQUE, JUDGE

Krj

//TRUE COPY//

P.A. TO JUDGE

W.P.(C) No.29527/2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	A TRUE RESPOND WITH EN	COPY OF THE LOAN APPLICATION OF THE 4TH ENT ALONG WITH THE GEHAN AND SURETY FORM GLISH TRANSLATION.
EXHIBIT P2	A TRUE THE O 21.04.2	COPY OF THE COMMUNICATION ISSUED FROM FFICE OF THE 1ST RESPONDENT DATED 016 ALONG WITH ENGLISH TRANSLATION.
EXHIBIT P3	A TRUE ARC NO ENGLISH	COPY OF THE AWARD DATED 22.05.2017 IN .348/2017 OF THE ARBITRATOR ALONG WITH TRANSLATION.
EXHIBIT P4	A TRU NO.1124 SECRETA WITH EN	E COPY OF THE INTIMATION HRMP 5/18/AIP DATED 03.01.2019 ISSUED BY THE RY OF THE HUMAN RIGHTS COMMISSION ALONG GLISH TRANSLATION.
EXHIBIT P5	A TRUE OF THE HUMAN TRANSLA	COPY OF THE COMPLAINT FILED IN THE NAME FATHER OF THE 4TH RESPONDENT BEFORE THE RIGHTS COMMISSION ALONG WITH ENGLISH TION.
EXHIBIT P6	A TRUE FILED	COPY OF THE OBJECTION DATED 11.02.2019 BY THE PETITIONER SOCIETY BEFORE THE
	HUMAN TRANSLA	RIGHTS COMMISSION ALONG WITH ENGLISH TION.
EXHIBIT P7	A TRUE DATED COMMISS	COPY OF THE ORDER IN HRMP NO.11245/2018 31.05.2019 ISSUED BY THE HUMAN RIGHTS ION ALONG WITH ENGLISH TRANSLATION.
EXHIBIT P8	A TRU NO.1124	E COPY OF THE INTIMATION HRMP 5/2018 DATED 24.07.2019, ISSUED FROM THE
	OFFICE WITH EN	OF THE HUMAN RIGHTS COMMISSION ALONG GLISH TRANSLATION.

Thankey Service Co-Operative Bank Ltd. NO.1003, v. the Registrar of Co-Operative Societies

Case brief

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Thankey Service Co-Operative Bank Ltd. NO.1003, v. the Registrar of Co-Operative Societies

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