IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 WP(C).No. 15417 of 2008(I) -------------------------- PETITIONER: --------------- SREE PANIMOLA BHAGAVATHY DEVASWOM, POTHENCODE, TRIVANDRUM, REPRESENTED BY ITS SECRETARY,MANAGING COMMITTEE,SRI.R.SIVANKUTTY NAIR BY ADV. SRI.MOHAN C.MENON RESPONDENTS: ---------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, TRIVANDRUM. 2. THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, TRIVANDRUM. 3. THE AYIROOPPARA FARMERS SERVICE CO-OPERATIVE BANK LTD. (NO.2154), POTHENCODE P.O., TRIVANDRUM-695584. ADV. SRI.G.BIJU FOR R3 GOVT.PLEADER SRI.BASANTH BALAJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.15417/2008 APPENDIX PETITIONER'S EXHIBITS; EXT.P1: COPY OF INTERIM ORDER ISSUED IN I.A. NO.1368/91 IN O.S. NO.108/1991 DATED 7/4/1993. EXT.P2: COPY OF LETTER DATED 24/8/1998 ADDRESSED TO THE 3RD RESPONDENT BANK. EXT.P3: COPY OF REQUEST OF THE GENERAL SECRETARY OF TRUST DATED 4.11.1998 ( WHICH THE PETITIONER COULD OBTAIN ONLY ON 20/5/2008 UNDER THE RIGHT TO INFORMATION ACT) ADDARESSED TO THE 3RD RESPONDENT. EXT.P4: COPY OF LETTER DATED 12/12/198 ( WHICH THE PETITIONER GOT ONLY ON 20/5/2008 UNDER THE RIGHT TO INFORMATION ACT). EXT.P5: COPY OF ORDER OF INJUNCTION ISSUED IN CMP NO.5840/2000 DATED 8.11.2000. EXT.P6; COPY OF DECREE DATED 28/2/2003 IN O.S. NO.86 OF 2000 OF THE SUB COURT,ATTINGAL. EXT.P7: COPY OF REQUEST DATED 28/7/2007 OF THE FORMER TRUST PRESIDENT. EXT.P8; COPY OF GUARANTEE DATED 23/10/2007. EXT.P9: COPY OF LETTER ISSUED BY FORMER SECRETARY OF THE FORMER TRUST TO THE 1ST RESPONDENT. EXT.P10: COPY OF THE REPLY OF THE 2ND RESPONDENT DATED 15.2.2008 TO THE FORMER SECRETARY OF THE NON EXISTING TRUST. PIUS.C.KURIAKOSE,J. ------------------------ W.P.(C)No.15417 of 2008 ------------------------ Dated this the 23rd day of September, 2008 JUDGMENT Sri.Panimoola Bhagavathy Devaswom has filed this writ petition under Article 226 arraying the Joint Registrar of Co-operative Societies, the Assistant Registrar (General) of Co-operative Societies and the Ayirooppara Farmers Service Co-operative Bank Ltd, as respondents seeking a writ of certiorari to quash Ext.P10 communication issued by the 2nd respondent and a writ of mandamus commanding the third respondent Bank to make necessary changes in the name of the depositor, supplanting the name of the “Sree Panimoola Bhagavathy Kshetram Trust and supplementing with “Sree Panimoola Devaswom” with the President, Secretary and Treasurer as Joint signatories. 2. According to the petitioner, the Devaswom belongs to 7 Nair families, which have set apart properties and assets for the formation, constitution and management of the temple. It is WPC.No.15417/2008 2 submitted that due to passage of time and discipline in the management the temple has attained great prosperity and fame. Certain disgruntled elements of the locality who had eye on the wealth of the temple which consisted of substantial amounts under bank deposits, filed O.S. No.108/91 before the Sub Court, Attingal alleging that the temple is a public temple, for the purpose of framing a scheme of administration. The suit was dismissed by the sub court on 29.7.2000. It is stated during the pendency of the suit Ext.P1 interim order was issued by the court restraining the defendants in the suit from drawing the amounts deposited in various institutions including the third respondent bank in the name of the first defendant until further orders. While so, some of the defendants in the suit created a trust in the name of the temple by a registered document and sought transfer of the assets of the Devaswom to the name of the Trust. The Managing Committee of the petitioner Devaswom on noticing this, would send Ext.P2 letter to the 3rd respondent bank requesting not to transfer the amount lying in the name of the temple to the Trust pointing out violation of Ext.P1 interim order. It is alleged that despite Ext.P2, the third respondent Bank WPC.No.15417/2008 3 acceded to the request of the creators of the trust (Ext.P3 request) for change of the name of the deposit holder from “Panimoola Devaswom” to “Sree Panimoola Bhagavathy Temple Trust” in the official records. Once Ext.P3 request was granted, the creditors of the new trust would make Ext.P4 request before the third respondent Bank for closure of SB and FD accounts of the bank. Ext.P4 was also granted by the Bank and accordingly 39 FD accounts could be prematurely closed and Rs.31,70,700/- so realised by the newly created trust was readily deposited in the newly opened SB account ( No.6026 in the name of the newly created trust). The petitioner points out that against the decree dismissing the scheme suit, the plaintiffs have preferred A.S. 627/2000 and in that appeal, this court has issued Ext.P5 interim order of injunction restraining defendants 2 to 4 in the suit from withdrawing the amounts which lay in deposit with various banking and institutions including the third respondent. But it is pointed out that even before Ext.P5 order was issued by this court, the damage had already been done. 3. The petitioner submits that they challenged the legality of the Deed of Trust and Modalities worked out by the WPC.No.15417/2008 4 Trust in taking over the temple in O.S. No.86/2000. That suit was decreed and Ext.P6 is the decree declaring the trust deed as null and void and restraining the defendants by a permanent, prohibitory injunction from usurping power from the plaintiffs and from creating any obstruction to the peaceful management of the first plaintiff temple. It is submitted that Ext.P6 has attained finality. Pursuant to Ext.P6 even the creators of the trust submitted Ext.P7 request before the third respondent bank to change over the deposits back to the Devaswom. Finding that there was no response to Ext.P7, the creators of the trust submitted Ext.P8 guarantee before the third respondent bank thereby assuring the bank that the bank will be indemnified completely by any possible risk to the bank in the event of Ext.P7 request being granted. When it was seen that despite Ext.P8, the third respondent was remaining inert, the former Secretary of the former trust addressed the first respondent seeking issuance of a direction to the third respondent bank to change back the name of the account holder to the Devaswom. Ext.P9 is a copy of the said request. What the first respondent did was to make over Ext.P9 to the second respondent his subordinate WPC.No.15417/2008 5 officer and the second respondent would issue Ext.P10 declining the request on the reason that the order of stay passed by this court in C.M.P. No.5840/2000 (Ext.P5) stand in the way. The petitioner challenges Ext.P10 on various grounds and has field this writ petition for reliefs already communicated. 4. No counter affidavit has been seen filed by any of The respondents. 5. I have heard the submissions of Sri. Mohan C.Menon, the learned counsel for the petitioner, the learned Government Pleader Sri.Basanth Balaji and Sri.G.Biju, the learned counsel for the third respondent. Sri.Mohan C.Menon would address me extensively drawing my attention to each and every document which has been placed on record by the petitioner. The learned counsel submitted that in view of the finality attained by Ext.P6 decree and the request (Ext.P7) and the guarantee bond (Ext.P8) submitted by none other than the creators of the trust, there is no legitimate reason for the third respondent bank to decline the request of the petitioner. Sri.Biju, the learned counsel for the third respondent would submit that had it not been for Ext.P5 the bank would have considered the request WPC.No.15417/2008 6 favourably. 6. Having considered the rival submissions addressed at the bar and having scanned the various materials placed on record, I am of the view that the petitioner is entitled for both the reliefs sought for. It is beyond dispute that the subject funds belong to the deity or the devaswom. The relief sought for is intended to safeguard the interest of the devaswom and the deity. The trust no longer exists in view of Ext.P6 decree. The creators of the trust themselves have made the request Exts.P7 and P9 and they have undertaken to indemnify the third respondent bank by submitting Ext.P8 against any loss or damage which may be occasioned to the bank by acting upon Ext.P8 and their requests Exts.P7 and P9. 7. Under the above circumstances, the writ petition is disposed of issuing the following directions/orders; Ext.P10 is quashed. The third respondent is directed to make necessary changes in the name of the depositor by changing the name of “Sree Panimoola Bhagavathy Kshetram Trust” and by supplementing the same as “Sree Panimoola Devaswom with the President, Secretary and Treasurer as joint WPC.No.15417/2008 7 signatories” after updating the interest accruable as per the current rates applicable to depositors of similar nature. (PIUS.C.KURIAKOSE,JUDGE) dpk