1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.11.2011 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA(MD)No.149/2008 Tirunelveli (Separate) 55 Kadambur Agricultural Cooperative Society Bank Limited by its Secretary, Kovilpatti Taluk Tuticorin District . ..Appellant/Appellant/Defendant Vs 1.Jeyaram ..Respondent/Respondent/Plaintiff 2.The Registrar, Kovilpatti Cooperative Societies, Vakil Street, Kovilpatti ..Respondents/Respondent/Defendant Prayer:- This Second Appeal is filed against the Judgement and Decree dated 24.03.2007 passed in AS.Nos.10/2007 by the learned Subordinate Judge, Kovilpatti, confirming the Judgement and Decree dated 27.01.2006 passed in OS.Nos.307/2004 by the learned District Munsif, Kovilpatti. For Appellants : Mr.S.Pon Senthil Kumaran For Respondents : Mr.S.Kadarkarai Mr.K.P.Krishna Doss, for R1 Government Advocate For R2 JUDGEMENT This Second Appeal is filed by the 1st Defendant Society against the Judgement and Decree dated 24.03.2007 passed in AS.Nos.10/2007 by the learned Subordinate Judge, Kovilpatti, confirming the Judgement and Decree dated 27.01.2006 passed in OS.Nos.307/2004 by the learned District Munsif, Kovilpatti. 2. The case of the Plaintiff, who is the 1st Respondent herein, as set out in the plaint is as follows:- a. The suit property and the other properties originally belonged to one Vannimuthu Pillai and his brother Arunachalam. The suit property is measuring 84.5 cents comprised in S.No.42/6. On 7.10.1992, Arunachalam after receiving a sum of Rs.34,968/- executed a release deed in favour of Vannimuthu Pillai, who in turn under a sale deed dated 11.10.2000 sold 81.5 cents to Raveendran and Jeyanthi for a sale consideration of Rs.99,400/- . Thereafter, Raveendran executed a release deed dated 13.9.2002 in favour of Jeyanthi after receiving a sum of Rs.53,255/-. Thus, after sub division, the said Jeyanthi became the owner of the suit property measuring 82.5 cents comprised in S.No.42/6. On 18.6.2003, Jeyanthi executed a Power of Attorney in favour of one Seenivasagam in respect of the suit property. The said Seenivasagam executed a sale deed in favour of the Plaintiff for a sale consideration of Rs.2,30,000/-. Since then the Plaintiff has been in possession and enjoyment of the suit property. b. While so, it is alleged that at the time when the said Raveendran worked in the 1st Defendant Society, he misappropriated a sum https://hcservices.ecourts.gov.in/hcservices/ 2 of Rs.17,43,614.155/-. In the proceedings initiated by the Society for recovery of the amount misappropriated by Raveendran, an order of attachment was passed on 8.9.2003 by the Deputy Registrar of Cooperative Societies, Kovilpatti, which was registered on 9.9.2003 by the Sub Registrar of Kovilpatti. The said Raveendran has no right, title or interest in the suit property in any manner and hence, the said order of attachment is not binding on the Plaintiff. Since, the Defendants are trying to alienate the suit property by way of auction, the suit has been filed for declaration that the suit property belongs to the Plaintiff and for the consequential relief of permanent injunction restraining the Defendants from interfering with the peaceful possession of the Plaintiff over the suit property and for costs. 3. In the Written Statement filed by the Defendants, it is averred as follows:- The averments relating to release deed dated 13.9.2002 are false. Since the Raveendran misappropriated funds of the Society, when he worked in the 1st Defendant Society, he was suspended on 23.10.2002 and on enquiry, it was found that he misappropriated a sum of Rs.39,66,594/-. He admitted the misappropriation of funds to the tune of Rs.33,65,939.90/-, out of which, he remitted a sum of Rs.16,12,223.90/-. He sold the suit property bought by misappropriating the funds of the Society to his sister. In the proceedings initiated by the Society for recovery of the amount misappropriated by Raveendran, an order of attachment was passed on 8.9.2003 by the Deputy Registrar of Cooperative Societies, Kovilpatti, which was registered on 9.9.2003 by the Sub Registrar of Kovilpatti. The said Raveendran received the notice of attachment and while so, contrary to the said notice, on 20.2.2004, the Power Agent Seenivasagam executed the sale deed in favour of the Plaintiff, which is not maintainable in law. The Plaintiff has no manner of right to restrain the Defendants from alienating the property by way of auction, when an order or attachment was passed by the Authority concerned in respect of the suit property. Hence, the suit is liable to be dismissed. 4. Before the Trial Court, on the side of the Plaintiff, Exs.A1 to A9 were marked and PW.1 was examined. On behalf of the Defendants, Ex.B1 to B2 were marked and DW.1 was examined. 5. On consideration of the oral as well as the documentary evidence, the Trial Court decreed the suit and the appeal filed as against the same filed by the 1st Defendant Society was dismissed, confirming the Judgement and Decree of the Trial Court. As against the same, this Second Appeal has been filed by the 1st Defendant Society. 6. This Second Appeal has been entertained on the following substantial question of law:- "Whether the suit as framed is maintainable, in view of the provisions of the Tamil Nadu Cooperative Societies Act and more particularly under Sections 90 and 156 of the said Act?" . 7. I have heard the submissions made by the learned counsel on either side and also pursed the materials on record and the impugned judgements of the courts below. 8. The suit property originally belonged to one Vannimuthu Pillai and his brother Arunachalam. The said Arunachalam relinquished his rights in the suit property in favour of his brother in Ex.A1. Vannimuthu Pillai had sold the suit property to Raveendran and his sister Jeyanthi by a registered sale deed dated 11.10.2000 in Ex.A2 sale deed. Raveendran https://hcservices.ecourts.gov.in/hcservices/ 3 had released his half share in the suit property under Ex.A3 release deed dated 13.9.2002 in favour of his sister Jeyanthi. According to the Appellant Society, the said Raveendran has committed misappropriation of a sum of Rs.33,65,938.90/-, for which disciplinary proceedings were taken against him and he was suspended on 23.10.2002. It is also said that the Appellant gave a public notice on 26.10.2002 not to deal with the suit property in any manner. The Appellant has also approached the Registrar and an order of attachment has been passed under Ex.A9 and the same has been registered with the Office of the Sub Registrar, Kovilpatti. In the meanwhile, Jeyanthi had executed Ex.A5 dated 18.6.2003 Power of Attorney appointing one Seenivasagam as her Power Agent and the Power Agent in turn had sold the suit property under Ex.A6 dated 20.2.2004 to the Plaintiff herein. 9. It is contended by the Appellant Society that the 1st Respondent/plaintiff himself has stated in paragraph 7 of the plaint that the suit property has been attached by the Appellant and further, he has admitted during his cross examination that he was aware of the attachment of the suit property, when he purchased the property. Therefore, it is submitted that the Plaintiff was very much aware of the action taken by the Appellant against the suit property and if he had any objection or claim regarding the property, then he has to seek his remedy under Rule 135(1) of the Tamil Nadu Cooperative Societies Act. 10. Mr.Pon Senthil Kumar, the learned counsel for the Appellant would contend that the suit filed by the 1st Respondent/ Plaintiff is not maintainable, when the jurisdiction of the civil court is specifically excluded under Section 156 of the Tamil Nadu Cooperative Societies Act. The learned counsel for the Appellant relying on the various provisions of the said Act and the Rules, particularly, Section 90, Section 167, Section 152 and Section 156 and Rule 135, which provide to the aggrieved party an adequate remedy to pursue his objection, as regards the question as to whether the property belonging to the Plaintiff could be attached or not, submitted that the Plaintiff's recourse to the civil court was statutorily barred. 11. On the other hand, Mr.S.Kadarkarai, the learned counsel for the 1st Respondent/ Plaintiff contends that the property exclusively belonged to the Plaintiff and did not belong to the debtor and even before attachment of the property, his share in the property had been released in favour of Jeyanthi and she had sold the property to the Plaintiff. Therefore, he would submit that the property could not be attached and that the bar of the civil court's jurisdiction under Section 156 will not be applicable to the facts of this case and relied on the decision of this court reported in 1997-1-CTC-378 (Mattadhari Primary Agricultural Coop. Bank Vs. Saroja Ammal and another). 12. At this juncture, it is relevant to refer to Section 156 of the Act, which reads as follows:- "156. Bar of jurisdiction of civil courts:- Notwithstanding anything contained in any other law for the time being in force, no order or award passed, decision or action taken or direction issued under this Act by an Arbitrator, a Liquidator, the Registrar or an officer authorised or empowered by him, the Tribunal or the Government or any officer subordinate to them, shall be liable to be called in question in any Court and no injunction shall be granted by any court in respect of anything which is done or intended to be done by or https://hcservices.ecourts.gov.in/hcservices/ 4 under this Act." 13. Section 156 deals with the bar of jurisdiction of civil courts in respect of orders passed by the statutory authorities under the Act. There is also bar against grant of injunction by any court. It is clear from a reading of Section 156 that to get protection under the Act, the authority under the Act must pass orders or awards or take action or issue direction, for which they are empowered under the Act. 14. Section 167 of the Act deals with furnishing of security and attachment of property. According to this Section, when the Registrar is satisfied on the application of a registered Society in respect of proceedings detailed therein that any party or person is about to dispose of the property with intent to defeat or delay the execution of any order that may be passed against him, the Registrar may, apart from directing the party to furnish security, separately order conditional attachment of the said property. The mode of attachment is specified in Rule 140. 15. Rule 135 relates to investigation of claims and objections to attachment of property. Rule 135(1) reads as follows:- "Investigation of claims and objections to attachment of property:- (1) Where any claim is preferred to, or any objection is made to, the attachment of any property attached under these Rules on the ground that such property is not liable to such attachment, the Sale Officer shall investigate the claim or objection and dispose of it on merits: Provided that no such investigation shall be made when the Sale Officer considers that the claim or objection is frivolous." 16. According to this Rule, the Sale Officer shall investigate the claim or objection and dispose of it on merits. The learned counsel for the Appellant relied upon this rule and contend that the present suit is not maintainable, since the Plaintiff can raise his objection or claim before the competent authority. It is also useful to refer to Rule 140 (2), wherein it is stated that when a claim is preferred to property attached under sub rule (1), such a claim should be investigated in the manner and by the authority specified. So, even a third party can prefer a claim with regard to the property attached. Therefore, it is clear that the Plaintiff, a purchaser of the suit property can prefer a claim under Rule 135 of the Tamil Nadu Cooperative Societies Rules, 1988. 17. Reliance was placed on the decision reported in 1997-1-CTC- 378 (Mattadhari Primary Agricultural Coop. Bank Vs. Saroja Ammal and another) by the learned counsel for the 1st Respondent relating to the statutory bar on civil court's jurisdiction under Section 156 of the Act. In the said decision, this court came to the conclusion that the Plaintiff was not a member of Primary Agricultural Coop. Bank and therefore, statutory bar would not operate. The analogy in the decision cited above, which is a finding on preliminary issue, cannot be made applicable to the case on hand. 18. At this juncture, it is relevant to refer to Section 152 of the Act, which states about the appeals. The said section contains provisions for an appeal to specified statutory authority by an aggrieved person as defined in the Explanation to sub section (2) against orders passed under certain categorised sections. The said appellate provision is very comprehensive in nature. Section 152(1) of the said Act clearly https://hcservices.ecourts.gov.in/hcservices/ 5 says that any person aggrieved by any decision or award passed or order made or proceedings taken under sub section (1) of Section 87, sub section (2), Sub section (3) or sub section (4) of Section 90, Section 118, Section 119, Section 143 Section 144 or Section 167 may appeal to the Tribunal. The said right of appeal has been given from orders passed under various provisions. 19. The Honourable Supreme Court in the case reported in 2009-3- MLJ-1032 (A.Balaraman and others vs. The Deputy Registrar of Cooperative Societies, Cheyyar and others) has made it clear that when an appellate provision is provided under the Tamil Nadu Cooperative Societies Act, 1983, which is very comprehensive, any person, who is aggrieved by any of the proceedings mentioned in Section 152(1)(a) of the said Act, can file an appeal. It is laid as follows:- "6. Such principles have been explained by the Honourable Supreme Court in the case of Titaghur Paper Mills Co. Limited Vs. State of Orissa (AIR-1983-SC-603:1983-2-SCC-433) and it is held as follows:- "It is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. Vs. Hawkesford (1859-6-CBNS-336 at P.356) in the following passage:- "There are three classes of cases in which a liability may be established founded upon statute... But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it..... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in this passage was approved by the House of Lords in Neville Vs. London Express Newspapers Limited (1919-AC-368) and has been reaffirmed by the Privy Council in Attorney General of Trinad and Tobago Vs. Gordon Grant & Co., (1935-AC-532) and Secretary of State Vs. Mask & Co. (AIR- 1940-PC-105). It has also been held to be equally applicable to enforcement of rights and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." 7. In view of the well settled legal principle, it is not possible for this Court to take a different view and go against the order passed by the learned Judge of the writ court. We do not find any error in the judgement of the learned Judge of the writ Court..." By applying the said principles laid down by the Honourable Supreme Court to the facts of the case, I am of the considered view that when the remedy is provided under the Act, the Respondent/Plaintiff cannot be permitted to have recourse to the civil court by filing a suit. 20. Having regard to the fact that the Plaintiff had approached https://hcservices.ecourts.gov.in/hcservices/ 6 the civil court directly without approaching the competent authority by invoking the relevant provisions of the Act, the question is whether the Plaintiff should be deprived of his right to pursue his remedy under the Act. As pointed out by the Honourable Supreme Court , Section 152 of the Act provides the hierarchy of authorities, before whom appeals could be filed as against various orders and award, to be passed under the Act and a period of limitation of 60 days is prescribed under Section 152(3) of the Act. The said provision also gives power to the appellate authority to condone the delay in filing such appeal to entertain the same, in the event of Appellant showing sufficient cause for not preferring the appeal within the said period. Therefore, having regard to the fact that the Plaintiff has been pursuing the remedy before the civil court and it appears to be in a bona fide manner, he can be permitted to file an appeal before appropriate authority. Having regard to the circumstances and the facts of the case, the Plaintiff cannot be deprived of raising his legitimate objections and the Plaintiff is permitted to file an appeal before the appropriate authority within two months from the date of receipt of a copy of the order. If the 1st Respondent/Plaintiff has approached within the said period as specified above, the Appellate Authority shall entertain the appeal on file without insisting on the question of limitation, since the matter was kept pending n this court. 21. In the result, with the above said observations, this second appeal is allowed. However, in the circumstances of the case, there will be no order as to costs. Sd/- Assistant Registrar (RTI) /True Copy/ Sub Assistant Registrar(CS) To: 1.The Subordinate Judge, Kovilpatti 2.The District Munsif, Kovilpatti 3.The Record Keeper, VR Section, Madurai Bench of Madras, High Court, Madurai +1cc to Mr.S.Ponsenthilkumaran, Advocate, Sr.No.39198 +1cc to mr.S.Kadarkarai, Advocate, Sr.No.39258 Scrm GH : 21.11.2011 : 6p/6c Judgement in SA(MD)No.149 of 2008 11.11.2011 https://hcservices.ecourts.gov.in/hcservices/