1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.04.2011 Coram: THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.(MD).No.3954 of 2011 And M.P.(MD).No.1 of 2011 S.Muthumadasamy : Petitioner -Vs- 1.The Deputy Registrar, Office of the Deputy Registrar of Co-operative Societies, Mela Mada Street, Srivilliputhur, Virudhunagar District. 2.The Joint Registrar, Special Officer, Virudhunagar District Central Co-operative Bank, Madurai Road, Virudhunagar. 3.The Cooperative Sub-Registrar, Officer of the Deputy Registrar of Co-operative Societies, Mela Mada Street, Srivilliputhur, Virudhunagar District. : Respondents PRAYER: Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the proceedings of the third respondent in Ni.Ma.No.109/01- 02, dated 14.03.2011, quash the same. For Petitioner: Mr.V.O.S.Kalaiselvam For Respondents: Mr.D.Shanmugaraja Sethupathi O R D E R The petitioner who has availed a loan of Rs.48 lakhs with the Virudhunagar District Central Co-operative Bank as early as on 02.08.2000 has come forward with this writ petition on the ground that even at the time of taking loan, he has narrated in the application that there was an existing loan, which was also taken into account while sanctioning loan to him. Immediately after getting the loan, he could not conduct the business. As the petitioner's business went on in heavy loss, the third respondent has sold six small properties for a meagre sum of Rs.10,08,000/- and the same was credited towards interest and loan amount. It is not in accordance with law. Subsequently, factory premises was also taken over. He filed an application under Rule 131 of the Tamil Nadu Co-operative Societies Rules for transfer of property. Since that was dismissed, a revision has been filed under Section 153 of the Act. https://hcservices.ecourts.gov.in/hcservices/ 2 In the meanwhile, the dwelling house was also brought for auction. Earlier he filed a writ petition in W.P.No.11068 of 2009, wherein, this court by an order dated 06.01.2009, directed to fix the upset price. Ultimately the matter was referred to the Committee by this Court, which was competent to decide on the OTS Scheme. In the mean while, the Government announced the scheme as per G.O.(2D)77 Co-operation Food and Consumer Protection (CC1) Department. Even though the second respondent Bank has issued a notice to the petitioner to avail OTS scheme, the second respondent Bank has simply rejected the petitioner's consent letter for availing that scheme. Immediately the petitioner has filed a writ petition in W.P.No.11185 of 2009 seeking direction to the second respondent to permit him to avail OTS scheme. This Court by its order dated 24.10.2009 directed the second respondent to consider the case of the petitioner only in accordance with the Government Order in G.O.(2D)77 Co-operation Food and Consumer Protection (CC1) Department. His present grievance is even though the Committee passed an order, it is not in accordance with the Government Order in G.O.(2D)77 Co-operation Food and Consumer Protection (CC1) Department, but it is only relied on the circular of the Registrar of Cooperative Societies. Therefore aggrieved against the order of the committee, he has filed a writ petition in W.P.No.2619 of 2011 and it is still pending. But in the meanwhile, the present notice has been issued, which is for bringing the entire properties for auction, on 28th April 2011. Therefore, challenging the present notice, he has come forward with the present writ petition. 2.The Co-operative District Registrar/Deputy Registrar alone is having power to issue form 9 Notice and the third respondent/the Co- operative Sub Registrar is not having power to issue the said notice. Hence the notice of auction issued by the third respondent is without power and hence illegal. 3.Though the respondents were asked to take notice, no counter has been filed. The learned counsel for the respondents would only contend that the petitioner has not come to the Court with clean hands. Earlier the petitioner has filed a writ petition as against the proceedings under Section 90 of the Tamil Nadu Co-operative Societies Act, where an award was passed under the Act. Challenging the same, CMA.CCS.No.1/2002 has been filed before the Co-operative Tribunal. That petition itself was dismissed as early as on 01.11.2002. Thereafter he filed a writ petition in W.P.No.46555 of 2002 challenging the order passed by the Tribunal on 01.11.2002; ultimately this also was dismissed on 27.07.2008. Thereafter he sought permission for availing of OTS Scheme. That was also rejected. Against the said rejection,he has filed a writ petition in W.P.No.11185 of 2009. This writ petition was disposed of on 24.01.2011 stating that the proper authority is the District Committee constituting in the Act to decide upon the OTS Scheme and it is further directed that the scheme itself is not applicable to the petitioner since the same expires on 28.02.2011 by the order of this Court. Pursuant to the same, the Committee, after giving an opportunity has passed an order dated 01.02.2011, dismissing, rejecting the request for one time settlement, contending that the scheme itself will not be applicable to the petitioner. Aggrieved against that order, he has preferred W.P.No.2619 of 2011 and that petition is still pending. Therefore literally he is taking the matter from the beginning through the courts and his efforts have not come to an end. As early as on https://hcservices.ecourts.gov.in/hcservices/ 3 22.07.2009, a specific direction was given by the Government in G.O.(2D) No.77, Co-operation Food and Consumer Protection (CC1) Department that whatever the arrears, if the borrower pays 25% on or before 31.10.2009, enters into an agreement with the Bank for the balance 75%, the waiver can be considered. Ultimately even after this, he has not paid 25%. Taking into consideration all these aspects left with no other option, the respondent has brought the property for auction and now challenging the distraint notice, which cannot be challenged at this point of time especially when he lost in all other forums, he has filed this writ petition frivolously. 4.Heard both the parties. By consent given by both sides, the writ petition itself is taken up. 5.It is very clear from the contention of the of the respondents that right from the beginning i.e from the grant of loan, he has all along been irregular in making payments. After the award has been passed as early as 2002, he has preferred an appeal before the Co-operative Tribunal. That was also dismissed. Challenging the same, a writ petition has been filed and the same was also dismissed and ultimately he wanted to have one time settlement. Therefore this Court has given an opportunity in W.P.No.11185 of 2009 and directed the Committee which is the competent authority to pass orders and the District Committee by its order dated 01.02.2011 has rightly rejected contending that the scheme itself is not applicable to the petitioner. Even assuming that he has had every right, as per information given earlier, he was given an opportunity to pay 25%. But he did not pay 25% even after the stipulated time i.e after 31.10.2009. Therefore he had failed to avail that opportunity also and finally the Committee itself rejected, which is the competent authority. Against which, he has preferred a separate proceedings in W.P.No.2619 of 2011. Admittedly it is pending and no interim order is passed. The present writ petition has been filed challenging the distraint notice. 6.It is also brought to the notice of this Court that as against the other properties, he has also preferred an appeal under Section 153 of the Tamil Nadu Co-operative Societies Rules which is pending, whereas he has not preferred any revision. Further, as already pointed out, the impugned notice cannot be challenged at this point of time especially when he lost in all other forums. In any view of the matter, this writ petition is not maintainable and the same is dismissed. No costs. Consequently, connected M.P.No.1 of 2011 is also dismissed. Sd/- Deputy Registrar (L.A) /True Copy/ Assistant Registrar To 1.The Deputy Registrar, Office of the Deputy Registrar of Co-operative Societies, Mela Mada Street, Srivilliputhur, Virudhunagar District. https://hcservices.ecourts.gov.in/hcservices/ 4 2.The Joint Registrar,Special Officer, Virudhunagar District Central Co-operative Bank, Madurai Road, Virudhunagar. 3.The Cooperative Sub-Registrar, Officer of the Deputy Registrar of Co-operative Societies, Mela Mada Street, Srivilliputhur, Virudhunagar District. + 1 cc to The Special Government Pleader, SR No.13744 + 1 cc to Mr.D.Shanmugaraja Sethupathi, Advocate, SR No.13594 W.P.(MD).No.3954 of 2011 And M.P.(MD).No.1 of 2011 11.04.2011 vs RJ/9.5.11 4p/6c https://hcservices.ecourts.gov.in/hcservices/