Abdul Rahiman V. The Assistant Registrar of Co-operative Societies, Perinthalmanna and Makaraparambu Service Co-operative Bank

WP(C)/31609/2018

AI Insights

Abdul Rahiman, the petitioner, had availed an overdraft facility from the Makaraparambu Service Co-operative Bank, which he defaulted on, leading to arbitration proceedings and an award against him. The petitioner sought to challenge this award and requested the bank to consider him for a One Time Settlement Scheme to discharge his liabilities. The court noted that the petitioner had not availed the alternative remedy of appealing to the Co-operative Tribunal, which is required under the Kerala Co-operative Societies Act for such disputes. The court dismissed the writ petition, advising the petitioner to pursue the matter through the appropriate tribunal.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 799062 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 27-09-2018
• Assessment Year: misc
• Other Referred Cases: Commissioner of Income Tax V. Chhabil Das Agarwal, Pavithran V. State of Kerala
• Laws Referred To: Article 226 of the Constitution of India, Section 70 of the Kerala Co-operative Societies Act, Section 82(1)(e) of the Kerala Co-operative Societies Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: K P HARISH
• Assessee Lawyers: K MOHANAKANNAN; A R PRAVITHA; H PRAVEEN; T S NEJIMUDDIN; T V NEEMA
• Keywords: Arbitration proceedings; Default Repayment; One time settlement scheme; Writ of Certiorari; Writ of Mandamus; Mortgaging property
• Section: 226; 70; 82(1)(e)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY ,THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940 WP(C).No. 31609 of 2018 PETITIONER: ABDUL RAHIMAN, AGED 42 YEARS, S/O.HAMSA, EDAKUDAMBAN, PALLIPURAM VALLIKKAPATTA P.O., MANKADA, MALAPPURAM DISTRICT BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SRI.H.PRAVEEN (KOTTARAKARA) SRI.T.S.NEJIMUDDIN SMT.T.V.NEEMA RESPONDENTS: 1 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, PERINTHALMANNA-679322. 2 MAKARAPARAMBU SERVICE CO-OPERATIVE BANK, NO.P.576, MAKKARAPARAMBU P.O., MALAPPURAM DISTRICT-676505 REPRESENTED BY ITS SECRETARY. OTHER PRESENT: R1 SRI K.P.HARISH,SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31609 of 2018 -2- JUDGMENT The petitioner, who availed an overdraft facility from the 2nd respondent Bank for a sum of Rs.10,00,000/- on 03.06.2015, by mortgaging his property, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 award dated 28.09.2017 of the 1st respondent in ARC No.813 of 2016. The petitioner has also sought for a writ of mandamus (wrongly stated as writ of certiorari) commanding the 2nd respondent to extend the benefit of One Time Settlement Scheme to discharge his liability covered by Ext.P1 award, within a time frame to be fixed by this Court and to defer recovery proceedings till then. 2. The pleadings and materials on record would show that, after availing loan for Rs.10,00,000/- from the 2nd respondent Bank, the petitioner defaulted repayment. In the arbitration proceedings initiated against the petitioner in ARC No.813 of 2016, the Arbitrator has passed Ext.P1 award, which is one dated 28.09.2017, whereby the 2nd respondent WP(C).No. 31609 of 2018 -3- Bank is permitted to realise a sum of Rs.11,94,709/- from the petitioner together with interest. Ext.P1 award passed by the Arbitrator is one issued in exercise of his powers under Section 70 of the Kerala Co-operative Societies Act. If the petitioner was feeling aggrieved by Ext.P1 award, he could have filed an appeal before the Co-operative Tribunal, invoking the provisions under Section 82(1)(e) of the said Act. 3. Now the petitioner wants to settle the dues covered by Ext.P1 award by availing One Time Settlement facility. The petitioner could not point out any such One Time Settlement Scheme, which is in force. The petitioner has also no case that he is a person affected by the recent flood. On a query made by this Court, the learned counsel for the petitioner would submit that the petitioner is not in a position to repay the total dues in monthly instalments, within a reasonable time. 4. In Commissioner of Income Tax V. Chhabil Das Agarwal [(2014) 1 SCC 603], the Apex Court reiterated that, non-entertainment of a writ WP(C).No. 31609 of 2018 -4- petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 5. In Pavithran V. State of Kerala (2009 (4) KHC 4), a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final. WP(C).No. 31609 of 2018 -5- Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the beated challenge made in this writ petition filed on 25.09.2018 against Ext.P1 award dated 28.09.2017 cannot be entertained under Article 226 of the Constitution of India. In such circumstances, without prejudice to the right, if any, of the petitioner to challenge Ext.P1 award before the Co-operative Tribunal, invoking the provisions under Section 82(1)(e) of the Kerala Co- operative Societies Act, this writ petition is dismissed. Sd/- ANIL K.NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE AWARD PASSED BY THE 1ST RESPONDENT U/S.70 OF THE CO- OPERATIVE SOCIETIES ACT IN ARC 813/2016 DATED 28/9/2017. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE bpr "