IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 WP(C).No. 34754 of 2009(L) -------------------------- PETITIONER: --------------- VALSA JOSE @ P.A.VALSAMMA, W/O.M.D.JOSE, AGED 45 YEARS, HOUSE NO.18/666A, MAMMOOTTIL HOUSE, PALLURUTHY, KOCHI - 682 006. BY ADV. SRI.K.T.SHYAMKUMAR RESPONDENTS: --------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ERNAKULAM DISTRICT CO-OPERATIVE SOCIETY OFFICE, COCHIN - 682 016. 2. THE ASSISTANT REGISTRAR (GENERAL), CO-OPERATIVE SOCIETIES, SAHAKARANA BHAVAN, FORT KOCHI, ERNAKULAM DISTRICT. 3. COCHIN URBAN CO-OPERATIVE SOCIETY LTD.NO.E 1093, CC 16/1324 B, KOCHUPALLY ROAD, THOPPUMPADY, KOCHI - 682005. BY GOVERNMENT PLEADER ADV. MR. A.H. HANIL KUMAR R3 BY ADV. SRI.B.S.SWATHY KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: EXT.P1 : TRUE COPY OF THE LEASE DEED EXECUTED BY THE PETITIONER WITH THE 3RD RESPONDENT. EXT.P2 : TRUE COPY OF THE PASS BOOK OF ACCOUNT NO. 11/03 MAINTAINED BY THE PETITIONER WITH THE 3RD RESPONDENT SOCIETY. EXT.P3 : TRUE COPY OF THE FIXED DEPOSIT RECEIPTS ISSUED BY THE 3RD RESPONDENT IN THE NAME OF THE HUSBAND OF THE PETITIONER. EXT.P4 : TRUE COPY OF THE PETITION DATED 24.09.2009 FILED BY THE HUSBAND OF THE PETITIONER WITH THE 1ST AND 2ND RESPONDENTS. EXT.P5 : TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 1ST AND 2ND RESPONDENTS UNDER SECTION 66(2) OF THE KERALA CO-OPERATIVE SOCIETIES ACT. EXT.P6 : TRUE COPY OF THE NOTICE DATED 16.10.2009 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. /TRUE COPY/ P.S. TO JUDGE. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 34754 OF 2009 ......................................................................... Dated this the 2nd December, 2010 J U D G M E N T The grievance projected by the petitioner in the Writ Petition is that the amounts due to the petitioner from the 3rd respondent Society by way of rent payable in respect of the premises occupied by the 3rd respondent Bank as a tenant of the petitioner/landlord and also the amounts lying in the FD account of the husband of the petitioner, ordered to be repaid as per Ext. P6 order passed by the Asst. Registrar/second respondent stand still to be disbursed . 2. The learned Counsel for the petitioner submits that the 3rd respondent Bank is situated in the building belonging to the petitioner and that the monthly rent was being deposited in the SB account of the petitioner maintained with the branch. The husband of the petitioner had also effected some deposits in the FD account bearing Nos.137 and 138 of the said branch, to an extent of `.50,000/- and `40,000/- respectively. In connection with some urgent needs of the petitioner and her husband, the FD accounts were sought to be terminated and the due amount was sought to be withdrawn. The request made in this regard W.P.(C) No. 34754 OF 2009 2 was not duly acted upon, stating that the financial position of the 3rd respondent was very weak. The petitioner had also presented a cheque for withdrawing a sum of ` 45,000/- out of the available balance amount of ` 45,686.22/- in the SB account, (which derived its source from the rent payable by the 3rd respondent to the petitioner). But the said cheque was returned by the Bank simply stating that there was no sufficient fund. 3. Met with the situation, the petitioner preferred Ext.P4 and P5 proceedings before the first and second respondents. Pursuant to further steps, the matter was considered and the second respondent passed Ext.P6 order dated 16.10.2009, directing the Bank to close the FD accounts and to effect payments as demanded and to report the matter, which however is stated as not complied with so far. This made the petitioner to approach this Court seeking for issuance of a direction to the respondents 1 and 2 to initiate action against the 3rd respondent Society under Section 66 of the Kerala Co-operative Societies Act and also to ensure that the payments due to the petitioner W.P.(C) No. 34754 OF 2009 3 and her husband from the 3rd respondent as indicated in Exts. P4 and P5 are caused to be disbursed forthwith. 4. The third respondent has filed a counter affidavit wherein it is stated as follows: “2. It is submitted that the Society is facing grave financial constraints and it is expected that the financial status will improve after six months. Considering this aspects, it is bonafide believe that the petitioner can be disbursed with an amount of Rs.70,000/- in her S.B. Account No.11/2003 before 30.07.2010. As regards the payment in respect of Ext.P3 Fixed Deposits, it is submitted that it will be possible to pay an amount of Rs.50,000/- covered by receipt No.137 before 30.09.2010 and the amount covered by receipt No. 138 on the date of its maturity. It is also respectfully submitted that the non-payment of the amounts mentioned in the writ petition are not purposive but due to unavoidable circumstances and financial constraints.” Later, when the matter was brought up at the instance of the petitioner stating that the commitment made from the part of the 3rd respondent as stated in paragraph No.2 of the counter affidavit was still to be given effect to, it was ordered by this W.P.(C) No. 34754 OF 2009 4 Court on 05.08.2010 as follows: “Though it has been submitted by the secretary of the 3rd respondent Bank in his counter affidavit that an amount of Rs.70,000/- would be paid to the petitioner before 30.07.2010, it is submitted th at even the said amount has not been paid, so far. The Counsel for the petitioner submits that there are other amounts also due from the 3rd respondent. In the above circumstances, it is made clear that the pendency of this W.P.(C) is not a bar in appropriate proceedings being initiated by the 1st respondent to see that Ext. P6 proceedings are implemented.” The learned Counsel for the petitioner submits that the third respondent is simply making a mockery of the proceedings, which is sought to be dealt with in befitting terms. The learned counsel for the third respondent Society submits that there is no wilful default on their part, but for the frustrating pecuniary condition of the third respondent. 5. After hearing both the sides, this Court finds that there is absolutely no justification for the third respondent Society in not disbursing the due amount to the petitioner, as there is no W.P.(C) No. 34754 OF 2009 5 dispute with regard to the eligibility of the amount as claimed by the petitioner and her husband; more so when the liability has been virtually conceded and assured to be cleared, as stated in the counter affidavit. 6. In the above circumstance, this Court declares that the respondents 1 and 2 are liable to proceed against the third respondent in accordance with the relevant provisions of law. Hence the prayers, as sought for, in the Writ Petition stand allowed. Further steps to cause implementation of Ext.P6 and such other proceedings in respect of lapses on the part of the 3rd respondent Society and the persons responsible shall be caused to be completed by the respondents 1 and 2 in accordance with the relevant provisions of law, as expeditiously as possible, at any rate, within three months. The Writ Petition is allowed. No cost. P.R. RAMACHANDRA MENON, JUDGE. lk