Back
2022 Supreme(Ker) 663
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, SHOBA ANNAMMA EAPEN, JJ.
Kurian Pallath & Ors. - Appellants
Versus
The Arbitrator/ Assistant Registrar of Co-operative Societies (G) & Ors. - Respondents
WA Nos. 234, 278 of 2022
Decided On : 03-08-2022
For the Appellant : B.S. Swathi Kumar, Anitha Ravindran, Harisankar N. Unni, Sarangadharan P.
For the Respondent: Sri Saigi Jacob Palatty-Sr.GP.
Point of Law : An officer of the rank of Assistant Registrar of Co-operative Societies, is thus statutorily conferred with the powers in relation to the matters in Section 69 & 70 of the KCS Act.
Headnote:
Kerala High Court Act - Section 5(i) - Kerala Co-operative Societies Act - Section 69 - Suit for recovery of amount - Misappropriation effected by manipulation of accounts and by penetrating into the hard disc of the computer - Whether the Assistant Registrar was entrusted to decide the above dispute or it may be that the Assistant Registrar concerned was entrusted to decide the above dispute by following the course of action as envisaged in Clause (b) of Section 74 which empowers the notified Registrar like Joint Registrar to transfer the case for disposal to any person, who has been invested by the Govt., powers in that behalf. (Para 11)
Finding of the Court :
Impugned order impleading the petitioners as defendants or allowing the amendment application cannot by itself lead to the situation that the defendants should be assumed to be liable and the issue as to whether they liable or not is a matter to be adjudicated on merits in the ARC proceedings. In other words all contentions available to both sides in that regard are left open to be raised and decided at the appropriate time for the adjudicate Forum concerned.
Result : Appeal dismissed.
JUDGMENT :
Alexander Thomas, J.
The subject matter of challenge in these writ appeals filed under Section 5(i) of the Kerala High Court Act is the common judgment rendered by the learned Single Judge to the extent it relates to the dismissal of the instant Writ Petition (Civil), WP(C) Nos.15863/2021 and WP(C) No.25710/2021. As these matters arise out of a common judgment and as the issues are inter-related, these appeals are disposed of on the basis of a common judgment.
2. Heard Sri. B.S. Swathikumar, learned Counsel appearing for the appellants in WA No.234/2022, Sri. T.R. Harikumar, learned Counsel appearing for the appellant in WA No.278/2022, Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the official respondents in these appeals and Sri. Ashok B. Shenoy, learned Advocate appearing for the respondent Co-operative Society.
3. The Arbitration Reference case No. 1/2017 has been filed by the respondent-Mavelikkara Taluk Co-operative Bank Ltd in March 2017, seeking for the recovery of an amount of Rs.34 Crores 81 lakhs, allegedly misappropriated by 3 of its employees, who have been originally arrayed as defendants in the above ARC proceedings. WP(C) No.15863/2021, which has led to WA No.234/2022 has been filed by the then members of the Managing Committee of the abovesaid respondent Co-operative Society Bank, whereas WP(C) No.25710/2021 (which has led to WA No.278/2022) is filed by the former Secretary of the respondent Co-operative Society. Certain other writ petitions have also been disposed of as per the common judgment and we are not concerned with the factual details of those writ proceedings. The gist of the allegations in the Arbitration Reference Case filed under Section 69 of the Kerala Co-operative Societies Act, (KCS Act) is that due to large scale misappropriation effected by manipulation of accounts and by penetrating into the hard disc of the computer maintained at the Thazhakkara Branch of the respondent Co-operative Society, the respondent Bank had lost huge amounts and the said amounts are sought to be recovered by filing the abovesaid ARC proceedings under Section 69, by proceeding against the persons said to be responsible for the same. The petitioners in the instant Writ Petitions were not originally impleaded as defendants/respondents in the above ARC proceedings. They were sought to be impleaded as additional defendants in the ARC, subsequent to the institution of the above case. The impugned order passed by the adjudicatory forum dealing with monetary dispute is under challenge in these writ proceedings. According to the appellants/writ petitioners, the ARC was initially filed before the respondent Joint Registrar who is a notified Registrar and thereafter the said notified Registrar has transferred the case to the Assistant Registrar concerned, who is also a notified Registrar and that the Assistant Registrar has been appointed as an Arbitrator in this case, presumably as envisaged in Section 70(4)(c) of the KCS Act. Originally the impleading Application was allowed and the consequential pleas were permitted without notice to the persons sought to be impleaded. Later, on intervention of this Court, as per the judgment rendered on 22.09.2020 in WP(C) No.4425/2020 (produced as Ext.R2(a) in the WP(C) No.15863/2021, which has led to WA No.234/2022), this Court directed the Arbitrator to consider whether the persons so impleaded are necessary or proper parties to the proceedings and that such considerations may be made de hors any observations in the orders already passed on the impleading application and the appended application and the contention of the petitioners regarding the maintainability of the pleas against them was also directed to be considered. It appears that it is in pursuance thereof that the Arbitrator/Assistant Registrar has passed the orders impugned in these writ proceedings, reiterating that the petitioners are liable to be impleaded as additional defendants in the
