IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 RSA.No. 1015 of 2011() ---------------------- (AS 197 OF 2003 OF DISTRICT COURT (ADHOC-I), KASARGOD) (OS 266 OF 2003 OF MUNSIFF COURT, KASARGOD) APPELLANT/APPELLANT/DEFENDANTS -------------------- THE KASARAGOD CO-OPERATIVE STORES LTD KASARAGOD, REP, BY ITS SECRETARY N.BHASKARA RAO, S/O. SUBARAYA SVT ROAD, KASARAGOD KASBA VILLAGE KASARAGOD TALUK, KASARAGOD DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT/APPELLANT/DEFENDANT --------------- THE KASARGODE CO-OPERATIVE TOWER BANK LTD NO.970, KASARGODE REP, BY ITS SECRETARY, N.RAMESH RAO, S/O. LATE GOVINDA RAO, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT 671 121. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No. 1015 of 2011 ............................................ DATED THIS THE 1st DAY OF SEPTEMBER, 2011 JUDGMENT Defendants, a Co-operative Society, in O.S.266 of 1999 on the file of Munsiff Court, Kasargod is the appellant. Plaintiff, Co- operative Bank is the respondent. The suit was filed for recovery of possession of the plaint schedule building belonging to the respondent Co-operative bank and let out to the appellant society on a monthly rent of Rs.200/- under Ext.A1 rent bond. Respondent sought the decree contending that the period provided under Ext.A1 expired and Reserve Bank of India has prohibited lease of buildings of the respondent bank. The respondent bank is a Co-operative Society as provided under Section 25 of the Kerala Buildings (Lease and Rent Control) Act 1965, and it is exempted under the Act and respondent is therefore entitled to a decree for recovery of possession with arrears of rent and damages for use and occupation. Appellant resisted the suit contending that the suit is not maintainable as civil court has no jurisdiction to try the suit in view of Section 69 RSA 1015/2011 2 and 100 of Kerala Co-operative Societies Act. It was alternatively contended that as appellant is a tenant as provided under Kerala Act 2 of 1965, a suit will not lie and only a petition under Section 11 of Kerala Act 2 of 1965 for eviction can be filed. 2. Learned Munsiff, on the evidence found that the dispute between the appellant and respondent is not a dispute as defined under Section 2(i) of Kerala Co-operative Societies Act and therefore the bar provided under Section 69 and 100 of the Kerala Co-operative Societies Act will not apply and the suit will lie. Learned Munsiff also found that in view of the notification issued under Section 25 exempting Kerala Co-operative Societies Act from the operation of Kerala Buildings(Lease and Rent Control) Act, the suit is maintainable. Finding that the tenancy was terminated validly, a decree for recovery of possession with arrears of rent was granted. Appellant challenged the decree and judgment before Additional District Court, Kasargod in A.S.197 of 2003. Learned Additional District Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. RSA 1015/2011 3 The argument of the learned counsel is that courts below did not properly appreciate the contentions raised by the appellant. It was argued that the respondent, Co-operative bank and appellant Co-operative society are both societies coming within the purview of Kerala Co-operative Societies Act and appellant is the tenant under the respondent bank and the dispute between them is definitely a dispute coming under Section 2(i) of Kerala Co- operative Societies Act . Learned counsel would argue that though the object of the Co-operative Bank is not letting the building on rent and therefore the dispute may not be a dispute touching the business of the respondent, it is definitely a dispute touching the establishments or management of the society capable of being the subject of litigation as provided under Section 2(i) and under Section 69(d), if a dispute arises between the society and any other society, it is a matter to be decided by the Co-operative Arbitration Court or the Registrar as provided under Section 69 and as provided under Section 100, when it is a matter to be decided by the Co-operative Arbitration Court, the suit is barred. The learned counsel pointed out that under Rule 178 of Co-operative Societies Rules, no society or union shall RSA 1015/2011 4 except with the previous sanction of the Registrar, use or allow to be used any premises used for its business or portion thereof for any purpose other than such business or other co-operative activities though it provides that premises may be allowed to be used for the conduct of the poll in connection with the election to the State or Central Legislature and when the respective bank had let out the building to the appellant, the Registrar is competent to sanction or ratify the action and therefore the dispute between the appellant and the respondent is to be settled by arbitration as provided under Section 69(d) and hence courts below should have found that the suit is not maintainable. 4. On the admitted facts, I cannot agree with the submission of the learned counsel. Though it was contended before the courts below that the letting of the building to the appellant by the respondent bank is touching the business of the respondent bank, it is not canvassed by the learned counsel that it is a matter touching the business of the respondent bank, as the business of the Bank is not either construction or letting out any building to the tenants. The only question is whether it is a matter touching the establishments or management of the RSA 1015/2011 5 society, capable of being the subject of litigation as canvassed by the learned counsel. Section 2(i) of the Kerala Co-operative Societies Act reads. “2. Definitions – In this Act, unless the context otherwise requires - (a)xxxxx (b)xxxxx (c)xxxxx (d)xxxxx (e)xxxxx (f)xxxxx (g)xxxxx (h)xxxxx (i) dispute means any matter touching the business, constitution, establishments or management of a society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a society and whether such claim be admitted or not;”. 5. It is clear that the dispute as defined under Section 2(i) is a dispute with regard to any matter touching the business or constitution or establishments or management of a society RSA 1015/2011 6 capable of being the subject of litigation including a claim in respect of any sum payable to or by any society, whether such claim be admitted or not. It cannot be said that letting of a building to the appellant by the respondent bank is a matter touching the establishments or management of the respondent bank as canvassed by the learned counsel. The fact that rule 178 provides for use of premises, with previous sanction of the Registrar for any other purpose other than such business or other co-operative activities does not mean that the letting of the building is a matter touching the establishments or management of the respondent bank. In such circumstances, as rightly found by the courts below, the dispute involved is not in respect of any matter as provided under Section 2(i). Therefore it is not a matter to be decided by arbitration as provided under Section 69. Hence as the bar provided under Section 100 of the Kerala Co-operative Societies Act does not apply, the suit is maintainable. As the respondent is a society in view of the notification issued under Section 25 of Kerala Buildings (Lease and Rent Control) Act 2/1965 the said Act is not attracted to the lease granted by the respondent. Hence appellant cannot claim RSA 1015/2011 7 the benefit under the Act. 6. In such circumstances, I find no substantial question of law involved in the appeal. Appeal is dismissed. Learned counsel appearing for the appellant then sought some time to surrender possession of the building. Trial court has granted the decree as early as 19.12.2000 and the decree was confirmed by the first appellate court on 6.6.2011. In such circumstances, appellant is granted one months' time to surrender vacant possession of the building from today. M.SASIDHARAN NAMBIAR, JUDGE lgk