IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN TUESDAY, THE 28TH DAY OF JULY 2009/6TH SRAVANA 1931 AS.No. 725 of 1995 (D) ----------------------- AGAINST THE JUDGMENT & DECREE IN OS.676/1989 OF THE PRL.SUB COURT,TRIVANDRUM DATED 30-09-1994 APPELLANT:2ND DEFENDANT ----------------------- P.C.UNNIKRISHNAN NAIR, AGED 44 YEAERS, T.C.37/923, THE TRIVANDRUM DISTRICT CO-OPERATIVE BANK BUILDING, FORT, TRIVANDRUM. BY ADV. SRI.A.VIJAYAKUMAR RESPONDENTS:PLAINTIFF & 1st DEFENDANT ------------------------ 1. THE TRIVANDRUM DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED BY GENERAL MANAGER, FORT, TRIVANDRUM. 2. J.VISALAKSHY AMMA, AGED 48 YEARS, “SARIDA”, KESAVADASAPURAM, PATTOM, TRIVANDRUM. R, BY SRI.G.MADHAVAN NAIR, R1 BY ADV. SRI.M.RAJASEKHARAN NAIR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28-07-2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.SURENDRA MOHAN, J. ------------------------------------------- A.S.No.725 of 1995 ------------------------------------------- Dated this the 28th day of July, 2009 JUDGMENT This is an appeal filed challenging the judgment and decree dated 30.9.1994 of the Sub Court, Thiruvananthapuram in O.S.No.676 of 1989. The appellant is the second defendant in the suit. The plaintiff is the first respondent and the first defendant is the second respondent in the appeal. 2. The plaintiff is the Thiruvananthapuram District Co-operative Bank Ltd., which is a Co- operative Society registered under the Kerala Co- operative Societies Act, 1969 and governed by the provisions of the said Act. The bank is the owner of a four storeyed building known as “Trivandrum District Co-operative Building”, situate at Fort, Thiruvananthapuram. The rooms on the ground floor of the said building are rented out to various tenants. A.S.No.725 of 1995 2 The appellant/second defendant is in occupation of the plaint schedule shop room bearing Door No.T.C.37/923 (old T.C.37/1420). According to the 1st respondent/plaintiff, the plaint schedule shop room was given on rent to the first defendant on 1.2.1977 for a period of 12 months on a monthly rent of Rs.240/- and she is the tenant thereof. Subsequently the rent has been enhanced. The present rent is Rs.400/- per month. 3. As per the terms of the rent deed, which has been produced and marked as Ext.A4 by the court below, the first defendant has no right to sublet the building. However, in gross violation of the terms of Ext.A4, the building was sublet to the second defendant. The plaintiff filed the suit for recovery of possession of the tenanted premises on the ground that the same was required for their bonafide own occupation. Arrears of rent has also been claimed. A.S.No.725 of 1995 3 4. The suit was contested only by the appellant. The first defendant remained ex-parte. The appellant contended that the suit was barred by the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965 and that only a Rent Control Petition was maintainable for the eviction of the second defendant. It was further contended that in view of Section 100 of the Co-operative Societies Act, 1969, the suit was barred. Various other contentions were also put forward by the second defendant. 5. The trial court framed 10 issues on the above pleadings and tried the suit. The evidence in the case consists of the oral testimony of PW1 and Exts.A1 to A4 documents. 6. After a careful consideration of the respective contentions of the parties and the evidence on record, the court below found that the suit was perfectly maintainable being not barred by either the provisions A.S.No.725 of 1995 4 of the Rent Control Act or the provisions of the Co-operative Societies Act. On all the issues, the court below found in favour of the plaintiff and therefore, the second defendant was directed to surrender vacant possession of the plaint schedule building with arrears of rent and future damages for use and occupation within two months, failing which the plaintiff was at liberty to evict the defendants by executing the decree. The plaintiff was also held entitled to recover an amount of Rs.14,400/- as arrears of rent with interest at the rate of 12% per annum from the date of default till the date of decree and thereafter at 6% per annum. Damages at the rate of Rs.400/- per annum was also granted from the date of decree till the date of realisation. The second defendant has assailed the said judgment and decree in the above appeal. 7. The only question that has been pressed A.S.No.725 of 1995 5 before me at the time of hearing is a question of law. According to the counsel for the appellant, since the dispute in the present suit was one coming within the scope of Section 69(f) of the Co-operative Societies Act, the present suit was clearly barred by the provisions of Section 100 of the said Act. It has been averred in paragraph-6 of the plaint that the rent in respect of the building was in arrears from 1983 onwards and there is also an averment that the right to recover the said arrears of rent was reserved by the plaintiff. The fact that amounts were due from the appellant shows that the relationship between the appellant and the first respondent was that of a debtor and creditor, which came within the scope of Section 69(f) of the Co-operative Societies Act. It is also contended that the plaintiff had not produced the byelaws of the Society before court and therefore there is nothing on record to show what was the A.S.No.725 of 1995 6 business of the society. If giving buildings on rent was part of the business of the society, then any dispute with regard to the said business would also come within the scope of Section 69. It is therefore contended that the judgment and decree of the court below are liable to be set aside. The counsel for the first respondent bank on the other hand points out that the suit was not barred since the business of the first respondent was banking and they were not doing any other business. The appellant had earlier filed another suit against the bank as O.S.No.701 of 1983. If the said suit was maintainable, the present suit is also maintainable, it is pointed out. 8. I have heard Sri.A.Vijayakumar appearing for the appellant and Sri.M.Rajasekharan Nair for the first respondent. I have also gone through the records of the case. 9. The only question that arises for consideration A.S.No.725 of 1995 7 in this appeal is : “Whether the suit is barred by the provisions of Section 100 of the Co-operative Societies Act, 1969?” 10. It is an admitted fact that the appellant is a tenant in occupation of the plaint schedule shop room. It is also admitted that the plaint schedule shop room belongs to the first respondent. The plaint schedule building is part of a four storeyed building. It belongs to the first respondent bank. The ground floor of the said building is comprised of shop rooms, one of which is occupied by the appellant. The suit is filed by the first respondent bank for eviction of the appellant - tenant and for obtaining vacant possession thereof. The first respondent had also sought to recover arrears of rent from the appellant. The suit was preceded by a registered notice, Ext.A1 terminating the tenancy arrangement and demanding vacant A.S.No.725 of 1995 8 possession of the shop room. It is clear from the above that the dispute involved in the present suit is essentially one between a landlord and the tenant. 11. Section 100 of the Co-operative Societies Act is as follows: 100. Bar of jurisdiction of courts:- No civil or revenue court shall have any jurisdiction in respect of any matter for which provision is made in this Act. 12. As per the above provision, the jurisdiction of a civil or a revenue court is barred in respect of any matter for which provision has been made in the Co- operative Societies Act. Therefore, it has to be seen whether any provision has been made in the Act for the adjudication of the dispute in the present case, by any of the persons of the Co-operative Societies Act. It is contended that the dispute in the present case is one coming within the scope of Section 69(f) of the A.S.No.725 of 1995 9 Act. 13. Section 69 of the Co-operative Societies Act reads as follows: 69. Disputes to be decided by Co-operative Arbitration Court and Registrar.- (1) Notwithstanding anything contained in any law for the time being in force, if a dispute arises, - a) among members, ...................... ..................................... ............................... f) between the society and a person, other than a member of the society, who has been granted a loan by the society or with whom the society has or had business transactions or any person claiming through such a person; or ....................................... .................... Such dispute shall be referred to the .................. such dispute. 14. As per the above section, disputes between two categories of persons are referred to, namely, one A.S.No.725 of 1995 10 between the society and a person other than a member of the society who has been granted a loan by the society and secondly, with whom the society has or had business transactions or any person claiming through such a person. The appellant is admittedly a tenant of the building. He is not a person who has been granted a loan by the society. Nor is he a person who has had business transactions with the society. The claim in the present suit is essentially the claim of a landlord for recovery of the tenanted premises, with arrears of rent. Therefore, the dispute in the present case does not come within the scope of Section 69(f) of the Co-operative Societies Act. In view of the above legal position, the contention of the appellant that the suit is barred by the provisions of Section 100 read with Section 69(f) of the Act is not sustainable. Therefore, the court below was perfectly justified in entertaining the suit and granting the A.S.No.725 of 1995 11 decree as done in the present case. No other ground has been urged before me against the judgment and decree of the lower court. In the above view of the matter, I find that there are no grounds to interfere with the judgment and decree of the Sub Court, Thiruvananthapuram in O.S.No.676 of 1989. The appeal fails and is therefore dismissed. No costs. Sd/- K.SURENDRA MOHAN Judge css/jj /True copy/ P.S.to Judge A.S.No.725 of 1995 12 K.SURENDRA MOHAN JUDGE --------------------------------------- AS.No.725 of 1995 --------------------------------------- JUDGMENT 28.7.2009