1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.10.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No2619 of 2011 and M.P.(MD)No.1 of 2011 S.Muthumadasamy ... Petitioners Vs. 1.The Registrar of Co-operative Societies, Kilpauk Garden, Chennai. 2.The Joint Registrar/President of the Committee Office of the Joint Registrar of Co-operative Societies, Kumarasamy Raja Nagar, Collectorate Buildings,Virudhunagar. 3.The Joint Registrar/Special Officer, Virudhunagar District Central Cooperative Bank, Madurai Road, Virudhunagar. 4.The Branch Manager, Chatrapatti Branch of Virudhunagar District Central Cooperative Bank, Virudhunagar. ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, to call for the records pertaining to the proceedings of the second respondent dated 01.02.2011 and the consequential order of the 3rd respondent in Na.Ka.2064/2003-2004/N.F.S dated 03.02.2011 and quash the same. For Petitioner : Mr.M.Ajmal Khan For Respondents : Mr.M.Govindan (R1 and R2) (Spl.Govt.Pleader) For Respondent-3: Mr.D.Shanmugaraja Sethupathi O R D E R The writ petitioner is the proprietor of Shanmuga Textiles. He borrowed a loan from the respondent Co-operative Society viz., the District Central Co-operative Bank, Virudhunagar. The loan was non- agricultural loan. In view of the default in payment, there were several correspondence between the society and the petitioner. In the present writ petition, the petitioner after sending a representation to the District Central Co-operative Bank, claimed that the Mill is running in a sluggish manner and half the looms are not operated and he is unable to pay the interests. But he agreed that for the development of the industry, he borrowed a sum of Rs.46,00,000/- and Rs.2,00,000/- towards the term loan. He has also borrowed a loan from the outside and he has to sell his property and https://hcservices.ecourts.gov.in/hcservices/ 2 pay of those debt then only he will be in a position to pay the principal as well as interest. Since the property of the petitioner has been kept as a security for obtaining the loan, the petitioner seeks for release of those property to enable him to sell. Thereafter, the petitioner came to know that there was some special loan waivers scheme introduced by the State Government in G.O.(2D) No.77, Co-operation, Food and Consumer Protection Department, dated 22.07.2009. In order to take advantage of the said scheme, he earlier filed a writ petition being W.P.(MD)No.11185 of 2009 and this Court held that the District Level Committee should consider the case of the petitioner about the eligibility to avail the loan. Since the scheme will come to close on 28.02.2011, the District Committee must examine the eligibility of the petitioner in availing the scheme. 2. Pursuant to the direction issued by this Court in the earlier writ petition viz., W.P.(MD)No.11185 of 2009, dated 24.01.2011, the District Committee considered the case of the petitioner and found that no doubt the scheme for waiver of the interest is available. But the petitioner was not a bonafide borrower and earlier enquiry was held under Section 81 of the Tamil Nadu Co-operative Societies Act and an action was initiated against the then Chairman-cum-Managing Director and the General Manager and surcharge proceedings were also initiated under Section 87. He has not paid back the loan so far and arbitration proceedings has been initiated under Section 90 of the Tamil Nadu Co-operative Societies Act. An arbitraral Award has been decreed against the petitioner. The petitioner also preferred an appeal under Section 152 of the Tamil Nadu Co-operative Society and in CMA(CS) No.1/2002 before the Tribunal. The said appeal was dismissed by the Co-operative Tribunal and the petitioner's earlier writ petition in W.P.(MD)No.46555 of 2002 was also dismissed. Having allowed the decree passed by the Deputy Registrar final, it is open to the Society to take executive proceedings and accordingly, an executive proceedings was initiated under E.P.No.109/2001-02. The properties of the petitioner have been auctioned. Pursuant to the auction notice, dated 25.02.2007, out of 11 properties, 6 were sold for Rs.10,00,000/- and has been brought under the loan account of the petitioner. Even for the rest of the properties, when they brought under auction, as there was no bidding, the District Central Co-operative Bank itself has taken over the properties for a sum of Rs.90,00,000/- and that was also brought to the credit of the petitioner in the loan account. Therefore, while considering the loan special waiver scheme it has to be taken that as per the Registrar's Circular dated 18.09.2011 it was informed that such a waiver scheme will not apply to those persons who are involved in surcharge proceedings and facing criminal auction and were subjected to inquiry under Sections 81 and 82 and all Co-operative Societies were directed to implement the circular, while considering the case of such loan waiver request. It is on the basis of these development, the petitioner case was denied. The petitioner is once again before this Court, challenging the order passed by the District Committee. https://hcservices.ecourts.gov.in/hcservices/ 3 3. It is to be noted that that the writ petition itself is not maintainable, since the loan transaction between the petitioner and the District Central Co-operative Bank is purely a contractual and in the present case, he has suffered a decree, which the appellate Tribunal has also confirmed and E.P. Proceedings have also been finalised. This Court do not find any illegality or irregularity in the order passed by the District Committee and the writ petition clearly is not maintainable. Though the learned counsel for the petitioner after taking time produced a copy of the Circular, dated 26.09.2010 stating that as per the said circular, his case can be considered. A careful reading of the said circular clearly shows that the petitioner is not eligible for such waiver scheme. Further, in the light of the earlier development and the petitioner having availed the loan, not even paid back even a fraction of the same, he is not a bona fide borrower and the respondent Bank has already taken appropriate steps to recover the amount. In the counter affidavit filed by the respondent Bank, dated 24.05.2011, it was also stated that the Registrar's Circular no way conflict the Government Order and such a writ petition is not maintainable. 4.In the light of the above, the Writ Petition stands dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs. Sd/- Assistant Registrar(Records) /True Copy/ Sub Assistant Registrar To 1.The Registrar of Co-operative Societies, Kilpauk Garden, Chennai. 2.The Joint Registrar/President of the Committee Office of the Joint Registrar of Co-operative Societies, Kumarasamy Raja Nagar, Collectorate Buildings, Virudhunagar. 3.The Joint Registrar/Special Officer, Virudhunagar District Central Cooperative Bank, Madurai Road, Virudhunagar. 4.The Branch Manager, Chatrapatti Branch of Virudhunagar District Central Cooperative Bank, Virudhunagar. +1cc to Mr.Shanmugaraja Seuthupathi, Advocate, Sr.No.36043+1 +1cc to Mr.M.Ajmalkhan, Advocate, Sr.No.36258 W.P.(MD)No.2619 of 2011 MPK/SMA/8.11.2011/7C/3P 19.10.2011 https://hcservices.ecourts.gov.in/hcservices/