Coram: vs The Co-Operative Sub-Registrar / on 8 February, 2008

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :  08..02..2008
Coram:
The Hon'ble Mr. Justice K.CHANDRU
W.P. No. 9729 of 1999
Ranganathan				.. Petitioner 
	Vs.
1.	The Co-operative Sub-Registrar /
		Sale Officer
	Nellikuppam Building House Building Society Ltd.
	E. No. 2734
	212 Main Road, Nellikuppam

2.	The Secretary
	Nellikuppam Building House Building Society Ltd.
	E. No. 2734
	212 Main Road, Nellikuppam

3.	The Deputy Registrar (Housing)	
	Arbitrator
	Cuddalore			 	.. Respondents 

Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records in proceedings CEP. 151/84-85 and dated 26.8.1997 on the file of the third respondent and quash the same as illegal, incompetent and without jurisdiction and further direct the third respondent to conduct enquiry as set out in rule 128, Tamil Nadu Co-operative Societies Act.

	For Petitioner	     :  Mr. V. Raghavachari
			
	For Respondent 2     :  Mr. R. Muralidharan	


COMMON  ORDER

	Heard the arguments of Mr. V. Raghavachari, counsel for the petitioner and Mr. R. Muralidharan, learned counsel for the the second respondent and perused the records. 

	2.	In this writ petition, the petitioner (as per the prayer amended on 06.11.2007) seeks to challenge the Execution Proceedings in CEP No. 151 of 1984-85 dated 26.8.1997 on the file of the third respondent (who was impleaded on 06.11.2007)

	3.	The petitioner was a driver in the Nellikuppam Municipality and at the time of filing the writ petition, it is stated that he was 52 years old and by now, he would have got retired from service.   At the time when he was in the service of the Municipality, he became a member of the Nellikuppam Co-operative House Building Society and he availed loan of a sum of Rs. 12,000/- with 10.75% interest.   He also executed a registered Deed of Mortgage dated 24.6.1974.    Subsequently, as he did not pay the instalment of the loan repayment properly, the second respondent initiated arbitration proceedings under Section 90 of the Tamil Nadu Co-operative Societies Act, 1983 [for short, 'TNCS Act'] in A.R.C. No. 20/77.    The petitioner is fully aware of the said proceedings and there has been some correspondence between the petitioner and the Municipal Commissioner and even in his letter dated 26.10.1993 addressed to the first respondent, he had referred to the execution proceedings initiated pursuant to the Award in E.P. No. 151/84-85.    Instead of challenging the Award in the manner know to law, viz., filing of an appeal under Section 152 of the TNCS Act before the Co-operative Tribunal, he had initiated a correspondence war with the Society stating that he has not received the copy of the Award and merrily continued to be a defaulter.   It was only when a distraint notice was given by the Society on 28.5.1999 bringing the house property for sale, which advertisement was also published in newspaper Daily Thanthi on 05.6.1999, the petitioner chose to move this Court with the present writ petition.    In fact, when the petitioner filed the present writ petition, this Court passed an order on 10.6.1999 stating that the sale can go on but the confirmation cannot be made until further orders.    

	4.	But in the counter affidavit dated 04.8.1999, it is stated that even as early as on 20.7.1998, the sale confirmation had taken place.    A typed set was filed by the second respondent containing the Award proceedings and the subsequent distraint notice issued against the petitioner.     It is also brought to the notice of this Court that the petitioner moved the Cuddalore District Consumer Redressal Forum with a petition in C.O.P. No. 122 of 1995 for a prayer that since  he had not been given the copy of the Award but continued to proceed with the execution proceedings and for the mental agony, the second respondent ought to give him Rs. 25,000/-.    The District Consumer  Forum, by its judgment dated 31.8.1998, dismissed the petitioner's complaint on merits.     It was found as a matter of fact that the petitioner had been given the copy of the Award proceedings dated 06.4.1978 by post and that the Society had sent a copy to the Advocate of the petitioner on 31.12.1987.    Therefore, the Consumer Forum held that the petitioner's case for compensation cannot be entertained.   This order was not challenged further by the petitioner even though it was made as early as on 31.8.1998.   This fact of dismissal by the Consumer Forum of the complaint by the petitioner after  trial and arguments, was not mentioned by the petitioner in his affidavit.    In fact, in paragraph 5, the petitioner had averred as follows:
"Agitated by the procedure that has been followed, I have even instituted a complaint before the Consumer Court  and the same could not be processed on account of the ill-health of my Advocate."

	5.	This will clearly show that the petitioner had deliberately suppressed the trial before the District Consumer Forum and the order was passed on merits against him.    This is a clear case of suppression of material facts while coming before this Court and on this ground, the writ petition is liable to be dismissed.


	6.	Further, the finding of the District Consumer Forum that the petitioner was in receipt of the Award clearly stares at his face and, therefore, filing the writ petition after a period of 20 years without challenging the Award, the petitioner is guilty of latches.    Without challenging the substantive portion of the Award, the petitioner cannot challenge the resultant execution proceedings.    The transaction between the petitioner and the second respondent Society is one of contractual in nature and the petitioner cannot maintain a writ petition to enforce the term of contract.    

	7.	Furthermore, Mr. Raghavachari, learned counsel appearing for the petitioner, contended that the finding of the Consumer Court is not binding on this Court and this Court should proceed as if the petitioner was not aware of the arbitration proceedings and in any event, the petitioner must be given permission to challenge the Award at least now onwards.    This submission is devoid of any merits.    The question of the petitioner being granted permission to challenge the Award passed in the year 1978 after a period of 30 years, cannot be permitted considering his conduct and behaviour.    

	8.	It was thereafter, the petitioner  submitted that the Award passed by the Arbitrator, a copy of which is filed by the second respondent, is bereft of any reasons and even though he might have remained ex parte, it should contain reasons.     For this purpose, the learned counsel relied upon the judgment of the Supreme Court reported in 1991 Supp (2) SCC 561 [Kerala Transport Company  v. Shah Manilal Mulchand and others] and submitted that reasons must be recorded by the Appellate Court even while confirming the finding of the trial Court.    The order dated 10.6.1999 passed by this Court that the sale can go on but the confirmation cannot be made until further orders, was subsequently modified by an order dated 30.12.2002 wherein the petitioner was directed to deposit the entire loan amount with interest and expenses in respect of sale proceedings within a period of eight weeks from the date of order failing which the stay is deemed to be vacated.    I do not know as to how the said judgment will have any application to the present case.   


	9.	In fact, in the order dated 26.02.1997, the petitioner's request to set aside the sale was refused as no valid  and sufficient reasons are shown by the petitioner.  In a case of loan transaction, the Society maintains all the transactions on record and unless the petitioner proves that he has paid the amount in terms of the loan agreement, there is no other defence that can be available to the petitioner.    Further, the conduct of the petitioner narrated above will clearly show that his only intention was to dodge the payments by making untenable contentions.   This is not a fit case where this Court should show any indulgence.     The petitioner, having miserably failed to avail the remedies provided under the TNCS Act, cannot come before this Court after a period of two decades to set aside the Award and the sale confirmation made in his respect of his mortgaged properties.     The attempt of the petitioner is a clear abuse of process of this Court and the writ petition misconceived and devoid of merits.   


	10.	Accordingly, the writ petition will stand dismissed.    The petitioner is directed to pay Rs. 1000/- (Rupees one thousand only) as cost to the second respondent.



gri


To

1.	The Co-operative Sub-Registrar /
		Sale Officer
	Nellikuppam Building House Building Society Ltd.
	E. No. 2734
	212 Main Road, Nellikuppam

2.	The Deputy Registrar (Housing)	
	Arbitrator
	Cuddalore.