IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 W.A.No. 2191 of 2008 ---------------------------- AGAINST THE JUDGEMENT IN WPC.29116/2004 Dated 16/07/2008 .................... APPELLANT/4TH RESPONDENT: --------------------------------------------- C. SURENDRAN, T.C 12/559 (4), KAMALAKSHY MANDIRAM, MULAVANA JUNCTION, KUNNUKUZHI.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.D.SAJEEV SMT.LIGEY ANTONY RESPONDENTS/PETITIONERS/RESPONDENTS 1 TO 3: --------------------------------------------------------------------------- 1. THETRIVANDRUM DISTRICT RETAIL RATION DEALERS - CO-OPERATIVESOCIETY LTD. NO. R- 740, DESABHIMANI ROAD, TRIVANDRUM, REP. BY ITS SECRETARY. 2. THE PRESIDENT, THE TRIVANDRUM DISTRICT RETAIL RATION DEALERS CO-OPERATIVE SOCIETY LTD. NO. R- 740, DESABHIMANI ROAD, TRIVANDRUM. 3. THE KERALA STATE CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. 4. THE DEPUTY REGISTRAR (ADMINISTRATION), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THIRUVANANTHAPURAM. 5. R. NADESHAN, NADESH BHAVAN, CHALAMUKKU, SREEKARYAM, THIRUVANANTHAPURAM. THIS WRIT APPEAL HAVE COME UP FOR ADMISSION ON 11/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.2191 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of November, 2008 JUDGMENT Basheer, J. This writ appeal is filed with a delay of 82 days. Since we propose to consider the writ appeal on merits, we do not deem it necessary to issue notice to the respondents on the delay petition. Delay is condoned. (2) This writ appeal is at the instance of respondent No.4 in the writ petition filed by respondents 1 and 2 herein. (3) By the impugned judgment, the learned Single Judge has allowed the writ petition and quashed Ext.P4 order passed by the Kerala Co-operative Tribunal, Thiruvananthapuram. By Ext.P4 order, the Tribunal had set aside the order passed by the Arbitrator appointed under the Kerala Co-operative Societies Act and directed him to reconsider the claim of the appellant afresh. (4) Appellant was the former President of Trivandrum District Retail Ration Dealers Co-operative Society Ltd. He had approached the arbitrator appointed under Section 69 of the Kerala Co-operative Societies Act read with Rule 67 of the Rules praying for a decree 2 W.A.NO.2191/08 for a sum of Rs.6,17,516/- to be recovered from the Society with 24% interest thereon. In Ext.P1 plaint, the appellant had averred that in his capacity as the President, he had been canvassed and collected huge deposits for the society. But, according to the appellant, the society had failed to repay such advances/deposits to the depositors. In short, it was contended by the appellant that failure of the society to pay back the amounts had resulted in fastening huge liability on him. (5) The claim of the appellant was stoutly opposed by the society contending interalia that the amounts borrowed by the society had been repaid. The appellant was removed from the post of President since he had misappropriated the funds of the society. The arbitrator, by Ext.P3 award, took the view that the claim of the appellant was not sustainable and that it would not come within the ambit of a dispute as defined under Section 2(i) of the KCS Act. (6) The appellant had challenged the award before the Kerala Co- operative Tribunal, Thiruvananthapuram. The Tribunal by Ext.P4 judgment set aside the award passed by the arbitrator and remanded the matter to the arbitrator for de novo trial in accordance with law. The said judgment passed by the Tribunal was impugned by the society in the writ petition. (7) The learned Single Judge held that the appellant could not have 3 W.A.NO.2191/08 claimed the status of a creditor in order to enable him to raise a dispute against the society warranting an adjudication falling within the parameters of Section 69 of the Act. (8) The learned counsel for the appellant has vehemently contended before us that the reasoning of the learned Single Judge cannot be sustained since the appellant had stated the circumstances as to how he had canvassed and managed to get deposits/borrowals for the society. He further submits that it was only because of his effort that the society could canvass huge deposits. He also submits that the society started functioning with Rs.250/- as its working capital. At the time when he handed over charge of President, the society had cash balance/stocks worth Rs.6,17,516/-. According to the appellant, the entire assets available with the society at that time were procured by him through borrowals from members of the society. Members had advanced money only because of the faith they had in him. Appellant alleged that the society had refused to pay back the amounts to those persons. (9) We have carefully perused Ext.P1 plaint filed by the appellant before the Arbitrator. At more than two places, it is stated by the appellant that the depositors had made their deposits in the society in their names. The appellant had no case that the money was deposited by him in the name of 4 W.A.NO.2191/08 other members. It is also not the case of the appellant that any of the depositors or creditors had any grievance against the society, that it had refused to pay back any amount to the members/depositors as and when they had requested for return of their money. (10) Having carefully perused Ext.P1 plaint, we are unable to accept the contention of the appellant that his claim was liable to be adjudicated by the Arbitrator as a dispute falling within the ambit of Section 2(i) which reads thus: “Dispute means any matter touching the business, constitution, establishments or management of a society capable of being the subject of litigation and includes a claim in respect of any sum payable to or by a society, whether such claim be admitted or not: (11) As has been noticed already, the specific allegation made by the appellant in Ext.P1 plaint was that members of the society had either lent some money to the society or made deposits as requested by him in order to tide over the financial stringency at that point of time. Appellant had no case before the arbitrator that any amount deposited by him was refused to be returned to him by the society or that, the society withheld payment of any other dues to him. In that view of the matter, it could not have been said that there arose any dispute falling within the ambit of Section 2(i) of the Act. The arbitrator, 5 W.A.NO.2191/08 therefore, was justified in rejecting Ext.P1 claim petition. (12) However, the Tribunal took the view that the arbitrator was not justified in dismissing the claim petition without raising any issue regarding the maintainability of the petition and also without the real creditors on the party array. The Tribunal also found fault with the arbitrator in dismissing the petition without recording any evidence. Appellant had no case that he was not permitted to implead the so called “real creditors” or to adduce evidence. Nevertheless, the Tribunal proceeded to hold that evidence had to be adduced in the case and therefore, set aside the order passed by the arbitrator. In our view, the Tribunal had proceeded at a tangent without considering the real issue involved in the case in its proper perspective and set aside the order of the arbitrator without assigning any valid reasons. (13) The learned Judge, in our view, was wholly justified in setting aside Ext.P4 order passed by the Tribunal. We do not find any reason to interfere with the order passed by the learned Single Judge. The writ appeal fails and it is dismissed. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE cl 6 W.A.NO.2191/08