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Kallettumkara Service Co-Operative Bank Limited NO.141 v. State of Kerala

Kerala HC4 Jan 2023WP(C)/204/2021

Case brief

AI extract

What is this about?

Petitioner bank filed a writ petition challenging a direction by the Assistant Registrar to produce documents regarding the debtor's property for execution. The Court held that the deposit holder does not possess the property's documents and direction was illegal, directing completion of proceedings within six months.

What did the court decide?

The writ petition is disposed of, directing the 3rd respondent to complete the proceedings in E.P. No.539 of 2012 within six months from today.

Kallettumkara Service Co-Operative Bank Limited NO.141… — Cooperative Societies | Kerala HC (2023)

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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 V.G.ARUN

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WEDNESDAY, THE 4TH DAY OF JANUARY 2023 / 14TH POUSHA, 1944
WP(C) NO. 204 OF 2021

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PETITIONER:

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KALLETTUMKARA SERVICE CO-OPERATIVE BANK LIMITED NO.141,
KALLETTUMKARA P.O., THRISSUR 680 683,
REPRESENTED BY ITS SECRETARY SMT.DAISY E.P.,
RESIDING AT THEKKEKARA, KALLETTUMKARA,
THRISSUR DISTIRCT

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BY ADVS.
K.RAMAKUMAR (SR.)
SRI.T.RAMPRASAD UNNI
SRI.S.M.PRASANTH
SRI.G.RENJITH
SMT.R.S.ASWINI SANKAR
SRI.T.H.ARAVIND

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RESPONDENTS:

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1 STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001

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

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3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANNUR 670 001

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4 THE A AND E-I INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANNUR 670 002

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5 THE KERALA STATE RUBBER CO-OPERATIVE LIMITED (RUBCO), KVR TOWER, 5TH FLOOR, MAHATMA JUNCTION, SOUTH BAZAR, KANNUR 670 001 REPRESENTED BY ITS MANAGING DIRECTOR.

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BY ADVS.

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R1 TO R4 SRI.RIYAL DEVASSY, GOVERNMENT PLEADER
R5 SRI.S.AJITH (PALAKKAD)

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WP(C) NO. 204 OF 2021 -2-

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 04.01.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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WP(C) NO. 204 OF 2021 -3-

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JUDGMENT

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The petitioner Society had made fixed deposits with the 5^th respondent, Kerala State Rubber Co-operative Limited (RUBCO). Even after the maturity period of the fixed deposit the 5^th respondent did not refund the amount. This compelled the petitioner to initiate arbitration proceedings, which culminated in an award directing the 5^th respondent to pay the amount to the petitioner with interest. The award was brought to execution by the petitioner. As the execution proceedings were getting unduly delayed, the petitioner approached this Court vide Writ Petition (C) No.12976 of 2014 and obtained Ext.P4 judgment, directing the 3^rd respondent - Joint Registrar of Co-operative Societies(General), Kannur to take up E.P. No.539 of 2012 and complete the proceedings within four months. The 3^rd respondent failed to comply with the direction and the petitioner initiated Contempt of Court

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WP(C) NO. 204 OF 2021 -4-

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proceedings. The 3^rd respondent submitted that the execution is being proceeded with and produced certain documents in proof to prove that fact. Based on the submission, the Contempt of Court Case was closed. Thereafter, Ext.P10 was issued by the third respondent stating that the petitioner has to point out the immovable property to be attached, since the property of the 5^th respondent has already been attached by the Kerala State Co-operative Bank in a proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act). As the execution proceedings came to a grinding halt because of the stand adopted by the 3^rd respondent, the petitioner approached this Court again in W.P.(C)No.19879 of 2018. That writ petition was disposed of by Ext.P11 judgment, the relevant portion of which reads as under:

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“6…...However, it obtains no justification for the 4^th respondent to stop execution proceedings

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WP(C) NO. 204 OF 2021 -5-

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merely because the State Co-operative Bank has initiated action against the property in question under the SARFAESI Act. In fact, it is incumbent upon the said Authority to continue proceedings because, even assuming the State Co-operative Bank has a first charge over the property of the 5^th respondent, any amount that may be obtained in surplus to their dues after sale of the property under the SARFAESI Act can certainly be claimed by the petitioner, for which purpose the execution petition will have to be continued.

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In the afore circumstances, I set aside Exts.P3 and P4 and direct the 4^th respondent to continue further proceedings for execution of the Award in ARC No.84/2010 in terms of law, subject to any better charges or encumbrances that may be claimed on the property of the 5^th respondent by the other creditors, including the State Co-operative Bank.”

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The petitioner sought review of the judgment which culminated in Ext.P12 order closing the Review Petition, but leaving petitioner’s liberty to act in terms of the directions in Ext.P11 judgment and to approach this Court again if the competent authority does not perform

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WP(C) NO. 204 OF 2021 -6-

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its statutory objections. This writ petition is filed aggrieved by Ext.P14 communication of the third respondent, requiring the petitioner to produce documents like Valuation Certificate, Site Plan, Encumbrance Certificate etc. pertaining to the property sought to be attached.

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Heard Adv.S.M.Prasanth, for the petitioner, Adv.S.Ajith, for the 5^th respondent and Adv.Riyal Devassy, the Government Pleader. Although elaborate contentions are urged, in so far as this Court has issued specific directions in Exts.P4 and P11 judgments, there cannot be a different approach in the instant writ petition.

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Learned counsel for the petitioner submitted that, no positive outcome can be expected from the proceedings pending before the 3^rd respondent since, till date, other than causing hurdles to the execution by raising unwarranted objections, no positive action is

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WP(C) NO. 204 OF 2021 -7-

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forthcoming from the said authority. It is submitted that, unlike the usual execution proceedings, in the instant case the money sought to be recovered is the deposit made by the petitioner and therefore the petitioner cannot be expected to be in possession of the documents pertaining to the property of the 5^th respondent. Being so, the compulsion to produce those documents, as a condition for proceeding with the execution is patently illegal and arbitrary.

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I find the said submission to be well founded. Initially an objection was raised by the 3^rd respondent pointing out that the property of the 5^th respondent has been attached by the State Co-operative Bank. In Ext.P11 judgment this Court made it abundantly clear that irrespective of such attachment, the 3^rd respondent

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is bound to proceed with the execution. In such circumstances, the 3^rd respondent could not have required the petitioner to produce documents pertaining

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WP(C) NO. 204 OF 2021 -8-

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to the 5^th respondent’s property as a condition for proceeding with the execution. The depositor cannot be expected to be in possession of the documents pertaining to the establishment in which the amount is deposited. Therefore, the 3^rd respondent is bound to continue the execution proceedings without requiring the petitioner to produce the documents mentioned in Exts.P14 and P16. This Court having fixed a time limit of four months for completing the execution as per Ext.P4 judgment dated 03.06.2014, the dilly-dallying on the 3^rd respondent’s part may amount contempt.

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The writ petition is hence disposed of, directing the 3^rd respondent to complete the proceedings in E.P. No.539 of 2012 within a period of six months from today.

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 Sd/-

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V.G.ARUN JUDGE

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vv

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WP(C) NO. 204 OF 2021 -9-

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APPENDIX OF WP(C) 204/2021

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PETITIONER EXHIBITS

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EXHIBIT P1TRUE COPY OF JUDGMENT DT.14.9.2011 IN
A.R.C.NO.84 OF 2010 ON THE FILE OF THE
ARBITRATION COURT OF JOINT REGISTRAR
OF CO-OPERATIVE SOCIETIES (GENERAL),
THRISSUR

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EXHIBIT P2TRUE COPY OF PETITION FOR EXECUTION
DT. 10.4.2012 SUBMITTED BY THE
PETITIONER BANK BEFORE THE JOINT
REGISTRAR OF CO-OPERATIVE SOCIETIES,
THRISSUR

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EXHIBIT P3TRUE COPY OF PETITION FOR EXECUTION
DT. 4.1.2013 SUBMITTED BY THE
PETITIONER BANK BEFORE THE JOINT
REGISTRAR OF CO-OPERATIVE SOCIETIES,
THRISSUR

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EXHIBIT P4TRUE COPY OF JUDGMENT DT.3.6.2014 IN
W.P.(C) NO.12976 OF 2014

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EXHIBIT P5TRUE COPY OF ORDER NO.C.P.(1)13258/13
DT. 23.8.2014 ISSUED BY THE REGISTRAR
OF CO-OPERATIVE SOCIETIES,
THIRUVANANTHAPURAM TO THE PETITIONER
AND OTHERS

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EXHIBIT P6TRUE COPY OF COMMUNICATION
NO.2269/2014/A&E I DT. 7.3.2015 SENT
BY THE ASSISTANT REGISTRAR OF CO-OP
SOCIETIES (GENERAL), KANNUR TO THE
PETITIONER BANK

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EXHIBIT P7TRUE COPY OF COMMUNICATION REF
NO.180/14-15 DT. 24.3.2015 SENT BY THE
PETITIONER TO A AND E I INSPECTOR,
OFFICE OF THE ASSISTANT REGISTRAR,
KANNUR

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WP(C) NO. 204 OF 2021 -10-

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EXHIBIT P8TRUE COPY OF COMMUNICATION
NO.2269/2014/AND EI DT. 30.3.2015 SENT
BY THE A AND E I INSPECTOR, OFFICE OF
THE ASSISTANT REGISTRAR, KANNUR TO THE
GENERAL MANAGER, KERALA STATE RUBBER
CO-OPERATIVE LIMITED NO.4412, KANNUR
EXHIBIT P9TRUE COPY OF COMMUNICATION
NO.2269/2014/A AND EI DT. 22.4.2015
SENT BY THE A AND E I INSPECTOR,
OFFICE OF THE ASSISTANT REGISTRAR,
KANNUR TO THE PETITIONER BANK AND
OTHERS
EXHIBIT P10TRUE COPY OF COMMUNICATION NO.C.P.
(1)13578/2013(2) DT. 22.2.2017 SENT BY
THE REGISTRAR, CO-OPERATIVE SOCIETIES
TO THE PETITIONER BANK
EXHIBIT P11TRUE COPY OF JUDGMENT DT. 13.3.2019 IN
W.P.(C) NO.19879 OF 2018
EXHIBIT P12TRUE COPY OF ORDER DT. 2.7.2019 IN
R.P.NO.546 OF 2019 IN W.P.(C) NO.19879
OF 2018
EXHIBIT P13TRUE COPY OF COUNTER AFFIDAVIT DT.
24.2.2019 IN W.P.(C) NO.19879 OF 2018
FILED BY R5
EXHIBIT P14TRUE COPY OF COMMUNICATION
NO.2390/2019/A & E-I DT. 8.11.2019
SENT BY THE A AND EI INSPECTOR,
O/O.ASSISTANT REGISTRAR (GENERAL),
KANNUR TO THE PETITIONER BANK
EXHIBIT P15TRUE COPY OF LETTER NO.149/19/20 DT.
19.11.2019 SENT BY THE PETITIONER TO
THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES (GENERAL), KANNUR
EXHIBIT P16TRUE COPY OF COMMUNICATION
NO.2390/2019/A & E-I DT. 12.6.2020

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SENT BY A AND EI INSPECTOR,
O/O.ASSISTANT REGISTRAR (GENERAL),
KANNUR TO THE PETITIONER BANK

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EXHIBIT P17TRUE COPY OF REPLY NO.52/20-21 DT.
27.6.2020 SENT BY THE PETITIONER BANK
TO THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES (GENERAL) KANNUR

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RESPONDENT EXHIBITS

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Exhibit R5(a) TRUE COPY OF THE MINUTES OF THE
MEETING DATED 14.11.2017

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Exhibit R5(b)TRUE COPY OF THE RELEVANT PAGES OF THE
AUDIT CERTIFICATE AND AUDIT MEMORANDUM
PERTAINING TO RUBCO PREPARED BY THE
KERALA STATE- CO-OPERATIVE DEPARTMENT
FOR THE YEAR 2020-2021

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Exhibit R5(c)TRUE COPY OF THE RELEVANT PAGES OF THE
AUDIT CERTIFICATE AND AUDIT MEMORANDUM
PERTAINING TO RUBCO PREPARED BY THE
KERALA STATE COOPERA. TIVE DEPARTMENT
FOR THE YEAR 2021-2022.
Exhibit R5(d)TRUE COPY OF THE TABULAR STATEMENT
SHOWING THE DETAILS OF THE BANK
ACCOUNTS OF RUBCO COMPOUND MIXING
PLANT IN RESPECT OF WHICH ORDER UNDER
SECTION 8F OF THE ACT HAVE BEEN SERVED
BY THE REGIONAL PROVIDENT FUND
COMMISSIONER, KANNUR.
Exhibit R5(e)A TRUE COPY OF THE TABULAR STATEMENT
SHOWING THE DETAILS OF THE BANK
ACCOUNTS OF RUBCO HAWAI CHAPPAL
FACTORY IN RESPECT OF WHICH ORDERS
UNDER SECTION 8F OF THE ACT HAVE BEEN
SERVED BY THE REGIONAL PROVIDENT FUND
COMMISSIONER, KANNUR.

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`Exhibit R5(f)`	`A TRUE COPY OF ORDER DATED 08.01.1999` `ISSUED BY THE 2ND RESPONDENT TO THE` `5TH RESPONDENT.`
`Exhibit R5(g)`	`A TRUE COPY OF THE JUDGMENT DATED` `18.09.2017 PASSED BY THIS HON'BLE` `COURT IN W.P.(C) NO. 6447/2009`
`Exhibit R5(h)`	`A TRUE COPY OF THE STATEMENT SHOWING` `THE PARTICULARS OF THE CLAIM` `RECEIVABLE BY THE 5TH RESPONDENT FROM` `THE 1ST RESPONDENT`
`Exhibit R5(i)`	`A TRUE COPY OF THE MINUTES OF THE` `MEETING HELD ON 25.08.2022 ANNEXED TO` `THE LETTER DATED 27.09.2022 SENT BY` `THE SECRETARY, CO-OPERATIVE DEPARTMENT` `TO THE ADDITIONAL CHIEF SECRETARY,` `FINANCE DEPARTMENT.`
`Exhibit R5(j)`	`A TRUE COPY OF THE LETTER DATED` `12.10.2022 SENT BY 2ND RESPONDENT TO` `THE DIRECTOR OF IIM, KOZHIKODE`

Kallettumkara Service Co-Operative Bank Limited NO.141 v. State of Kerala

Case brief

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Kallettumkara Service Co-Operative Bank Limited NO.141 v. State of Kerala

Case brief

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