IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 WP(C).No. 16171 of 2011(V) -------------------------- PETITIONER(S) :- ------------------------ MIRIYAM, AGED 74 YEARS, W/O.CHERIYAN, MADAKKANKAL HOUSE, H.NO.VIII/529, EAST ELERY PANCHAYATH, MLLUKUNNU, KANNIVAYAL POST, KASARAGOD DISTRICT – 670 511. BY ADV. SRI.NISHIN GEORGE VIJAYABABU SRI.BIJU ABRAHAM (KAIPPANPLACKAL) RESPONDENT(S) :- ------------------------- 1. THE MANAGER, KASARAGOD DISTRICT CO-OPERATIVE BANK, CHITTARICKAL BRANCH, CHITTARICKAL P.O., KASARAGOD DISTRICT, PIN - 671 326. 2. THE ASSISTANT REGISTRAR/ARBITRATOR CUM SALE OFFICER, KASARAGOD DISTRICT CO-OPERATIVE BANK, P.B.NO.48, NAYAKAS ROAD, KASARAGOD - 671121. 3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), CIVIL STATION, VIDYA NAGAR, KASARAGOD - 670 123. 4. THE SECRETARY TO THE GOVERNMENT, DEPT. OF CO-OPERATION, SECRETARIAT, PALAYAM, THIRUVANANTHAPURAM - 695 001. 5. E.K.SUNIL KUMAR, S/O.KOCHUKUTTY, ELAVUMKAL HOUSE, POST KAMBALLOOR, PIN – 670 511. ADV. SRI.M.SASINDRAN,SC,KASARGOD DIST.CO-Op.BANK GOVERNMENT PLEADER SRI.BASANT BALAJI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 16171 of 2011 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the aforesaid arbitral award in ARC No.57/2007 dated 6-6-2007 passed by the 2nd respondent in favour of the 1st respondent. Ext.P2 :- Copy of the said demand notice dated 27-1-2010 issued under rule 81(D) of the Kerala co-operative Societies Rules 1969, by the 2nd respondent to the 1st petitioner. Ext.P3 :- Copy of the said sale proclamation notice dated 19-11-2010 issued u/r 81(e) of Kerala Co-operative Society Rules by the 2nd respondent in respect of the property mortgaged by the 1st petitioner. Ext.P4 :- Copy of the intimation letter dated 29-12-2010 issued by the 2nd respondent to the 1st petitioner. Ext.P5 :- Copy of the Notification No.K-13430/08 dated 14-12-2009 published in Kerala Government Extraordinary Gazette No.515 (21) Volume 35 dated 6-3-2010 showing the fair value of the 1st petitioner's land. Ext.P6 :- Copy of the Petition preferred by the 1st petitioner before the Respondents3 to 4 dated 22-01-2011. Ext.P7 :- Copy of acknowledgment receipt dated 25-1-2011 issued by the R3 evidencing receipt of Exhibit-P6. Ext.P8 :- Copy of the judgment of this Hon'ble Court in W.P.(C)No.2972/2011 (V) dated 28-1-2011. Ext.P9 :- Copy of the order bearing number 313/2011/K.Dis dated 30-3-2011 issued by the 3rd respondent to the petition. Ext.P10 :- Copy of document No.1309/2000 registered in Book No.I, Vol 655 and pages 125 to 127 at the Office of the Sub Registrar Bellal. Respondent's Exhibits :- NIL //True Copy// P.A. to Judge P.N.RAVINDRAN, J. ---------------------------------- W.P.(C)No. 16171 OF 2011 --------------------------------------------- Dated this the 16th day of June, 2011 J U D G M E N T Ext.P9 order passed by the Joint Registrar of Co-operative Societies (General), Kasaragod rejecting the application filed by the petitioner under rule 83 of the Kerala Co-operative Societies Rules and confirming the sale of his property that was held on 29.12.2010 is under challenge in this writ petition. 2. The petitioner had earlier filed W.P.(C)No.2972 of 2011 in this Court challenging the steps taken by the first respondent bank to recover the amount covered by Ext.P1 award passed in A.R.C.No.57 of 2007. The circumstances in which the earlier writ petition was filed have been set out in Ext.P8 judgment and therefore they are not reiterated herein. By that judgment, on noticing that an application filed by the petitioner within thirty days from the date of sale to have the sale set aside was pending before the Joint Registrar of Co-operative Societies, I disposed of W.P.(C)No.2972 of 2011 with a direction to the Joint Registrar of Co-operative Societies to consider the said W.P.(C).No. 16171 OF 2011 2 application and pass orders thereon after affording the petitioner, the first respondent and the auction purchaser an opportunity of being heard. It was pursuant to the said direction that Ext.P9 order was passed after hearing the petitioner. 3. Sub rule (6) of rule 83 of the Kerala Co-operative Societies Rules states that an order made under rule 83 shall subject only to the provisions of clause (j) of sub section (1) of section 83 of the Kerala Co-operative Societies Act be final. Section 83 (1) (j) of the Kerala Co-operative Societies Act (hereinafter referred to 'the Act' for short) confers on the petitioner the right to file an appeal challenging Ext.P9. The period of limitation prescribed for filing an appeal under section 83 (1) (j) of the Act is sixty days from the date of the order or decision appealed against. Though the date of receipt of Ext.P9 order is not set out in the writ petition, during the course of arguments, the learned counsel for the petitioner submitted that Ext.P9 order was served on the petitioner only on 04.05.2011. A learned single Judge of this Court has in Varghese v. R.T.A, Malappuram 1984 KLT 991 held interpreting section 64A of the Motor Vehicles Act 1939, which stipulated that the period of W.P.(C).No. 16171 OF 2011 3 limitation for filing a revision is thirty days from the date of the order, that the expression “thirty days from the date of the order” must be understood as the date on which the person challenging the order had actual or constructive knowledge of that order. The said decision was affirmed in appeal by the Division Bench of this Court in Varghese v. R.T.A, Malappuram 1984 KLT 1082 I have in W.P.(C)No.34226 of 2009 held relying on the aforesaid decisions that the period of limitation prescribed for filing an appeal to the Government under section 83 (1) (j) of the Act commences from the date of service of a copy of the order appealed against on the appellant. In such circumstances as the petitioner claims that a copy of Ext.P9 order was served on him only on 04.05.2011 it cannot be said the period of limitation prescribed for filing the appeal has expired. I am therefore of the considered opinion that the remedy of the petitioner is to challenge Ext.P9 in appeal before the Government. I accordingly decline jurisdiction and dismiss the writ petition leaving open the petitioner's contentions and reserving liberty with him to challenge Ext.P9 in appeal before the W.P.(C).No. 16171 OF 2011 4 Government in terms of clause (j) of subsection (1) of section 83 of the Kerala Co-operative Societies Act, 1969. P.N.RAVINDRAN, JUDGE dmb