IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 WA.No. 2288 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.33620/2008 Dated 26/11/2008 .................... APPELLANT(S): 4TH RESPONDENT ---------------------------- VINODAN, PERUKAPPARA, MARUTHONKARA, KOZHIKODE DISTRICT. BY ADV. SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENT(S): PETITIONERS & RESPONDENTS 1 TO 5,7 & 8 ----------------------------------------------------- 1. RAJESH V.P, VALIYAPARAMBAN, MARUTHONKARA KOZHIKODE DISTRICT. 2. P C PRAKASHAN, PARACHALAYIL, MAUTHONKARA KAVILAMPARA, KOZHIKODE DISTRICT. 3. A G RAJESH, ASHARIPARAMBIL,MAILOTHARA, KAVILAMPARA, KOZHIKODE DISTRICT. 4. K P MOHAN, KUNHIPARAMBATH, MARUTHONKARA, KOZHIKODE DISTRICT. 5. RESHMA P K, POOTHANKUNDIYIL, MARUTHONKARA, KOZHIKODE DISTRICT. 6. THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 7. MARUTHONKARA SERVICE CO-OPERATIVE BANK, MARUTHONKARA, KOZHIKODE DISTRICT, REPRESENTED BY ITS SECRETARY. 8. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),KOZHIKODE. 9. THE RETURNING OFFICER,MARUTHONKARA SERVICE CO-OPERATIVE BANK, MARUTHONKARA, KOZHIKODE DISTRICT. 10. C N RAVEENDRAN, AGED 42 YEARS, S/O.GOVINDAN NAIR, CHRIYANADUKANIMMEL, MOLLOTHARA.P.O, KAVILAMPARA (VIA), KOZHIKODE-673 513. 11. N P RAGHAVAN, EX-PRESIDENT, MARUTHONKARA PANCHAYAT SERVICE CO-OPERATIVE BANK LTD NO.D 2461, AISWARAYA, MOILOTHARA P O, KAVILUMPARA, KOZHIKODE. 12. THE ADMINISTRATOR, MARUTHONKARA PANCHAYAT SERVICE CO-OPERATIVE BANK LTD NO.D 2461, ADUKKATHU, KOZHIKODE. ADV. SRI.M.SASINDRAN FOR R1-5 SRI.P.RAVINDRAN, SENIOR ADVOCATE FOR R7 & R12 SRI.HARIKRISHNAN RAVINDRAN FOR R7 & 12 SPECIAL GOVT. PLEADER SMT. A.G. ANEETHA FOR R8 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 2288 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of March, 2009 JUDGMENT Balakrishnan Nair, J. This appeal is filed against an interim order passed by the learned Single Judge, in I.A. 15117 of 2008, in the Writ Petition on 26.11.2008. The Writ Petition was filed mainly challenging Ext.P7 order of the Co-operative Arbitration Court, Trivandrum. The subject matter of the Arbitration case appears to be whether the steps taken for admission of 752 persons as members of the 7th respondent bank is valid or not. The said Court passed the following order: “Interim order granted, directing the respondents 1 and 3 not to act upon or take any decision or proceedings in the matter of granting membership, accepting share value relating to the 752 application forms incorporated in the minute book of the 1st respondent Society dated 5.7.2007 until further orders.” W.A.No. 2288 of 2008 2 2. The result of that order was that those 752 persons, mentioned in the interim order, were not able to get membership or voting right. The learned Judge, who heard the challenge against Ext.P7, directed that the votes, including those of 752 persons, which were collected in separate box can be counted, subject to the final orders in the Writ Petition. Aggrieved by the said direction, this Writ Appeal is filed. 3. The learned Senior counsel, Shri. K. Ramakumar, submitted that when the matter is within the cognizance of the Arbitration Court, the writ petition should not have been entertained. The 752 persons mentioned in the Arbitration Court's order are not entitled to vote. But, the learned Judge, in the interim order made certain findings and also ordered to count their votes, subject to the result of the writ petition. Those findings will prejudice the appellant, who is the 4th respondent in the writ petition. So, he prayed for vacating the interim order. 4. We heard Shri. Sasindran, the learned counsel appearing for respondents 1 to 5, Shri.P. Ravindran, learned Senior counsel for the W.A.No. 2288 of 2008 3 Administrator of the Society as also the Special Government Pleader for the official respondents. 5. In the writ appeal, this court has already passed an interim order on 28.11.2008. The said order reads as follows: “The election of the committee of the Maruthonkara Service Co-operative Bank is scheduled to be held on 30.11.2008. In the final voters list, names of 752 persons who were admitted by the earlier committee were not included. Their names were not included in the voters list because of an interim order passed by the Arbitration Court. That arbitration order was challenged by five writ petitioners and that writ petition is pending. In the meanwhile, an interim application was filed to allow the 752 members to vote. Learned Single Judge passed an order allowing the 752 members disputed to vote and their votes would be held separately and kept in a separate box, however, election can be conducted and results can be declared inclusive of their votes, subject to the result of the writ petition. 2. It is the contention of the appellant that only five petitioners approached this Court and not 752 persons. It is further submitted that the draft voters list was W.A.No. 2288 of 2008 4 published and thereafter, final voters list was also published. But they did not file proper objection to the draft voters list. It is also submitted that before the interim order passed by the Arbitration Court, they did not pay the full membership fees. Therefore, they are not eligible to vote, as the election process is started. It is also submitted that the entire matter is decided without fully hearing the matter and interim order should be set aside. Learned counsel for the respondents/writ petitioners submitted that they are challenging the interim order of the Arbitration Court. If interim order is set aside, all the persons admitted as members by the earlier committee can vote and they did not pay the balance admission fees, in view of the interim order passed by the Arbitration Court. Unless that is set aside, they cannot pay the same and they cannot be included in the voters list. That is why the interim order of the arbitration court was challenged. It is further submitted that the arbitration court has no jurisdiction to deal with the matter in view of the Division Bench decision. 3. We make it clear that all the observations of the learned Single Judge are only prima facie and a final W.A.No. 2288 of 2008 5 decision has to be taken after hearing the parties and the arguments submitted according to law. We also note that learned Single Judge has allowed to conduct the election, provisionally, subject to further orders of this Court. Disputed 752 persons also can vote in separate ballot box and those votes should be counted separately, so that those votes can be excluded, if the writ petition is dismissed. Therefore, it is argued that no prejudice is caused by the interim order. Election can be conducted subject to the result of the writ petition, as directed by the learned Single Judge and 752 members are also entitled to vote in a separate ballot box and their votes also should be counted. We direct that results of the election shall not be declared until further orders from this Court. 6. In view of the interim order, the votes of the disputed 752 persons mentioned above could be counted but the results cannot be declared. Having regard to the facts of the case, we feel that, whether their votes should be counted or not, is a matter which should be finally decided in the writ petition. Pending disposal of the writ petition, the direction to declare the results is kept in abeyance. We W.A.No. 2288 of 2008 6 notice that the learned Judge, in the order under appeal, has clarified that the findings in the interim order are only tentative and are only for the purpose of interim relief. We are sure, the learned Judge will hear and dispose of the matter, uninfluenced by the findings made in the interim order. If motion is made for an early hearing, the learned Single Judge would try to hear and dispose of the matter at an early date. The interim order dated 28.11.2008 will remain in force till the disposal of the writ petition. 7. The Writ Appeal is disposed of as above. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm