IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 WP(C).No. 7426 of 2010(C) ------------------------- PETITIONER: --------------- P.NANDAKUMAR, S/O. RAGHAVAN NAIR, MATHOOR HOUSE, THEYYALINGAL POST, VELLIYAMPURAM, MALAPPURAM DISTRICT, PIN-676 320. BY ADV. SRI.K.P.SUDHEER SRI.V.C.MADHAVANKUTTY RESPONDENTS: ----------------- 1. THE ASSISTANT REGISTRAR (GENERAL), MANJERI. 2. THE JOINT REGISTRAR (GENERAL), OFFICE OF THE JOINT REGISTRAR, CO-OPERATIVE DEPARTMENT, MALAPPURAM. 3. THE MANJERI SERVICE CO-OPERATIVE BANK LTD.NO.M.31, P.O.MANJERI, MALAPPURAM DISTRICT, PIN-676 121, REPRESENTED BY ITS SECRETARY. R1 & R2 BY SMT.ANITHA RAVINDRAN, GOVT. PLEADER R3 BY ADV. SRI.K.SHIBILI NAHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2011, ALONG WITH WPC NO. 12885 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JV WPC NO: 7426/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF FIXED DEPOSIT RECEIPT NO: 0315 DATED 05.09.2003 ISSUED BY THE 3RD RESPONDENT. P2: COPY OF FIXED DEPOSIT RECEIPT NO: 0252 DATED 19.08.2003 ISSUED BY THE 3RD RESPONDENT. P3: COPY OF NOTICE DATED 05.10.2009 ISSUED BY THE 2ND RESPONDENT. P4: COPY OF ORDER NO: C.R.P.(1) 1692/09 DATED 24.12.2009 ISSUED BY THE 2ND RESPONDENT. P5: COPY OF MEMO DATED 16.02.2010 ISSUED BY THE 3RD RESPONDENT. P5(A): COPY OF COVERING LETTER DATED 16.02.2010 ISSUED BY THE 3RD RESPONDENT. P6: COPY OF REPRESENTATION DATED 23.02.2010 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: R3(A): COPY OF THE BOND EXECUTED BY THE PETITIONER IN FAVOUR OF THE 3RD RESPONDENT BANK DATED 14.07.2003. R3(B): COPY OF THE LOAN OUTSTANDING LEDGER. /TRUE COPY/ P.A. TO JUDGE JV P.N.RAVINDRAN, J. ---------------------------------------------------------- WP (C) Nos. 7426 & 12885 of 2010 ---------------------------------------------------------- Dated this the 30th day of November, 2011 JUDGMENT A common question arises in these two writ petitions. They were therefore heard together and are being disposed of by this common judgment. 2. The petitioner, in WP(C) No. 7426 of 2010 was engaged as a Commission Agent by the third respondent co-operative society, which is the petitioner in the connected writ petition during the period from September 2003 to July 2004. The petitioner had on 5.9.2003 deposited the sum of Rs.1,00,000/- and a further sum of Rs.1,00,000/- on 19.8.2003 with the third respondent society by way of fixed deposit. Both the deposits were for a period of two years. After the petitioner ceased to be a Commission Agent, he sought payment of the amount lying in fixed deposit. When the amount was not disbursed he moved the Joint Registrar of Co-operative Societies (General), Malappuram by filing a representation dated 18.8.2008. Upon receipt of the said representation, the Joint Registrar of Co-operative Societies (General), Malappuram issued Ext.P3 notice to the Secretary of WP (C) Nos. 7426 & 12885 of 2010 -2- the third respondent society and the petitioner under certificate of posting, inviting both of them to be present for a hearing at 3 PM on 16.10.2009. The petitioner appeared. The Secretary of the third respondent society or any of its officers did not appear. By Ext.P4 order passed on 24.12.2009, the Joint Registrar of Co- operative Societies directed the third respondent society to refund the amount lying in fixed deposit with interest within one week from the date of receipt of a copy of Ext.P4 order. 3. The petitioner produced a copy of Ext.P4 order before the third respondent and presented the fixed deposit receipts for encashment through the State Bank of India, Manjeri branch. When the petitioner's banker presented the fixed deposit receipts for payment to the third respondent society it declined to honour the fixed deposit receipts on the ground the drawer's signature differs from the specimen and returned the fixed deposit receipts. The petitioner thereupon filed Ext.P6 representation dated 23.10.2010 before the Joint Registrar of Co-operative Societies seeking enforcement of his order. WP (C) No.7426 of 2010 was thereafter filed on 8.3.2010 seeking implementation of Ext.P4 order and a direction to the third respondent to release the amounts lying in fixed deposit to the WP (C) Nos. 7426 & 12885 of 2010 -3- petitioner. After receipt of notice in WP(C) No.7426 of 2010 the third respondent society filed WP(C) No. 12885 of 2010 challenging Ext.P4, a copy of which is produced and marked as Ext.P1 therein. Relying on Ext.P2 bond executed by the petitioner in favour of the third respondent society on 14.7.2003 and the loan outstanding ledger, it is contended that the amount lying in deposit cannot be refunded to the petitioner so long as amounts are due from members who have availed loans to purchase home appliances which were sold through the petitioner in WP(C) No.7426 of 2010. It is contended that before the Joint Registrar of Co-operative Societies passed Ext.P4 order the third respondent society was not afforded an opportunity of being heard. 4. I heard Sri.K.P.Sudheer, learned counsel appearing for the petitioner in WP(C) No.7426 of 2010, Sri.K.Shibili Naha, learned counsel appearing for the petitioner in WP(C) No. 12885 of 2010 and Smt.Anitha Ravindran, learned Government Pleader appearing for the official respondents. It is evident from the pleadings and the materials on record that the third respondent society refused to disburse the amount covered by the fixed deposit receipts only on the ground that the signature of the WP (C) Nos. 7426 & 12885 of 2010 -4- petitioner differs from the specimen signature. At that point of time it had no case that the petitioner is not entitled to obtain payment of the money lying in fixed deposit. The petitioner presented the fixed deposit receipts for encashment only after Ext.P4 order was passed on 24.12.2009. Ext.P4 order states that though the third respondent society received notice from the Joint Registrar of Co-operative Societies, it did not appear and raise any objection before the Joint Registrar. The third respondent has in WP(C) No. 12855 of 2010 raised a contention that Ext.P4 order was passed without notice to it. However Ext.P4 reveals that the Assistant Registrar of Co-operative Societies (General), Manjeri had conducted an enquiry and submitted a report to the effect that it was without approved sub rules that the third respondent society disbursed loans to its members to purchase home appliances. The third respondent in W.P.(C) No. 12855 of 2010 has in the counter affidavit filed in that case stated that the disbursement of loans to members to purchase home appliances is illegal and such being the situation the Commission Agent cannot be held liable for the loans disbursed by it. In my opinion for that sole reason, the claim made by the third respondent society that Ext.P4 order produced WP (C) Nos. 7426 & 12885 of 2010 -5- in WP(C) No.7426 of 2010 should be set aside on the ground that it was not heard before it was passed, cannot be accepted. The third respondent society has no case that home loans were disbursed to its members with the approval of the department. The petitioner was only a Commission Agent. Such being the situation, as the Commission Agent was engaged to disburse loans unauthorizedly, I am of the opinion that the third respondent society cannot exercise any lien over the fixed deposits merely for the reason that some of the members who availed loans to purchase home appliances are in default. The third respondent society should proceed against the defaulting members by instituting appropriate proceedings before the Arbitrator or by repossessing the home appliances, if the terms of the loan agreement with the members authorize it to repossess them. I therefore find no justification for withholding payment of the sum of Rs.2,00,000/- lying in deposit to the petitioner. I accordingly dispose of WP(C) No. 7426 of 2010 with a direction to the third respondent society to disburse to the petitioner the sum of Rs.2,00,000/- deposited by him in fixed deposit with the interest accrued thereon within two weeks from WP (C) Nos. 7426 & 12885 of 2010 -6- the date on which he produces a certified copy of this judgment. WP(C) No. 12885 of 2010 shall stand dismissed. Sd/- P.N.RAVINDRAN, JUDGE. Rkc //true copy// PA to Judge.