IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 WP(C).No. 21082 of 2009(E) -------------------------- PETITIONER(S): --------------- M.C.ANTONY, PRESIDENT, KUTTIKKADU FARMERS SERVICE CO-OPERATIVE BANK LTD., NO.572, KUTTIKKADU (P.O.), THRISSUR-680724. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): --------------- 1. THE JOINT REGISTRAR (G) OF CO-OPERATIVE SOCIETIES, THRISSUR. 2. THE ASSISTANT REGISTRAR (G) OF CO-OPERATIVE SOCIETIES, MUKUNDAPURAM, THRISSUR. 3. THE KUTTIKKADU FARMERS SERVICE CO-OPERATIVE BANK LTD.,NO.572, KUTTIKKADU (P.O.), THRISSUR-680724, REPRESENTED BY ITS MANAGING DIRECTOR. 4. T.D.CHAKKUNNY, THOTTEPPURAM, KUTTICHIRA (P.O.), THRISSUR. ADV. SRI.JOHN NUMPELI (JUNIOR) FOR R3 SRI.P.V.PAULSON FOR R3 SRI.P.C.SASIDHARAN FOR R4 SHRI.K.G.MOHAMMED HASHIM, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.21082/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 17/07/2009. P2 : COPY OF THE REPRESENTATION DATED 22/07/2009. P3 : COPY OF ORDER NO.1592/09 DATED 24/07/2009. RESPONDENT'S EXHIBITS R4(a) : COPY OF NOTICE ISSUED BY THE BANK DATED NIL. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.21082 of 2009 --------------------------------- Dated, this the 3rd day of August, 2009 J U D G M E N T The petitioner is the President of the 2nd respondent, a Co- operative Society. The total strength of the Managing Committee is 13, out of which, 12 are elected and the 13th is the Managing Director, an ex-officio member. In the last election that was held, the petitioner, owing allegiance to the Janatha Dal (Secular), contested as part of the Left Democratic Front. According to the petitioner, the candidates sponsored by the Left Democratic Front won all the 12 seats, out of which, 5, including petitioner owe allegiance to the Janatha Dal (Secular). Finally, the petitioner was also elected as the President of the Bank. 2. On account of subsequent political developments in the State, there was split within the Left Democratic Front, and that led the 4th respondent to move a no-confidence motion against the petitioner. On its receipt, the Joint Registrar, authorised the 2nd respondent, the Assistant Registrar, to convene a meeting of the Managing Committee in terms of the provisions contained under Section 28AA of the Kerala Co-operative Societies Act, 1969 and WP(C) No.21082/2009 -2- Rule 43A of the Kerala Co-operative Societies Rules. Accordingly, the 2nd respondent issued Ext.P1 notice dated 17/07/2009 convening a meeting on 07/08/2009. 3. In terms of the bye-laws of the Society, if members of the Board of Directors are absent without permission in four meetings, they will lose their membership in the Board. The petitioner states that after Ext.P1 notice was issued, meetings of the Board of Directors were held on 18/07/2009, 20/07/2009 & 25/07/2009, and that the 7 members including the 4th respondent remained absent in the said meetings. As a result of this, the meetings did not have the minimum quorum, and therefore could not transact any business. At that stage, Ext.P2 representation was filed by the 4th respondent and other six members belonging to his group, requesting the 2nd respondent to restrain the petitioner and his group from convening any meeting of the Board of Directors of the Bank. Accordingly, the 2nd respondent issued Ext.P3 order dated 24/07/2009 directing that in view of Ext.P2 complaint signed by 7 members of the Board of Directors, and as Ext.P1 notice for convening the meeting to discuss the no-confidence motion is already given, no further meeting of the Board of Directors, to make the provisions of proceedings under Section 28AA of the Act and WP(C) No.21082/2009 -3- Rule 43A of the Rules infructuous, shall be convened. It is on receipt of Ext.P3, the writ petition is filed. 4. The learned counsel for the petitioner mainly contends that the Assistant Registrar has been authorised only to convene a meeting of the Board of Directors, for considering the no- confidence motion moved by the 4th respondent and others, and that his power is only to convene the meeting and that he does not have any power to issue an order in the nature of Ext.P3. 5. On the other hand, the 4th respondent filed his counter affidavit and submits that the endeavour of the petitioner is totally ill motivated. According to the 4th respondent, he or his group have not received any notice of the meetings alleged to have been held on 18 & 20th of July, 2009. In so far as the meeting allegedly held on 25/07/2009 is concerned, it is stated that what he received is Ext.R4(a) notice of meeting, which is an undated one, and that the said notice was received only on 27/07/2009. It is stated that, the attempt is to make it appear that four meetings were convened before 07/08/2009, and to show that the 4th respondent and six others were consecutively absent in all such meetings and hence have ceased to be members of the Board of Directors. It is stated that the object is that no-confidence motion moved by them will be WP(C) No.21082/2009 -4- ultimately defeated. 6. It is also pointed out that under Section 66 of the Act, the Assistant Registrar is conferred with supervisory powers, and the learned counsel for the 4th respondent has referred to notification dated 08/07/2009 issued by the Government under Section 3(2) of the Act, delegating the power of the Registrar to the Assistant Registrar. The learned counsel also placed reliance on Section 66A of the Act and contended that the Assistant Registrar, by exercising the delegated power, is perfectly competent to issue directions in the nature of Ext.P3. 7. The only question to be considered is whether in a proceedings under Article 226 of the Constitution of India, where the remedy available is discretionary, this Court should come to the rescue of the petitioner. 8. As can be seen from the facts, the no-confidence motion moved against the petitioner is scheduled to be considered in the meeting to be held on 07/08/2009. Going by the bye-laws, if a member of the Board is absent without permission in four meetings, he will lose membership. Subsequent to 17/07/2009, when Ext.P1 notice of meeting was issued, the petitioner claims to have already convened three meetings, when the 4th respondent and his group WP(C) No.21082/2009 -5- were absent. The present endeavor is to call the 4th meeting, and if the 4th respondent and his group remain absent in that meeting also, they will automatically lose membership in the Board of Directors. If that happens, in the meeting that is to be held on 07/08/2009, the Board of Directors will have no quorum, and that will lead to the appointment of an Administrator. Therefore, the intention of the petitioner is only to avoid a situation, where the petitioner will have to face the no-confidence. This intention certainly lacks bonafides, and in my view, irrespective of the contentions on the merits, this Court will not be justified in invoking its discretionary power under Article 226 of the Constitution of India and help the petitioner to evade the no-confidence motion. 9. In my view, the Assistant Registrar, who has been authorised to convene the meeting, should also be conceded the power to ensure that status quo continues until the no-confidence is considered by the Board of Directors. As otherwise, it will be open to the manipulators like the petitioner to wangle the situation in such a manner that the no-confidence is avoided. The writ petition fails, and is accordingly dismissed. (ANTONY DOMINIC, JUDGE) jg