IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 4895 of 2005(G)
1. K.T.MANOHARAN, KARATHUTHAZHA VEEDU,
... Petitioner
Vs
1. THALAKULATHUR HOUSE CONSTRUCTION
... Respondent
2. THE ASSISTANT REGISTRAR OF
3. THE JOINT REGISTRAR OF CO-OPERATIVE
For Petitioner :SRI.P.P.JACOB
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.THANKAPPAN
Dated :01/08/2006
O R D E R
K.THANKAPPAN, J.
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W.P.(C)NO. OF
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Dated this the 1st day of August, 2006
JUDGMENT
The petitioner is a contractor who had entered into an agreement with the
first respondent – Society for construction of an office building for the Society.
Ext.P2 is the agreement. The petitioner completed the work as agreed, but the
expenses incurred for the work was in excess of the amount sanctioned from the
office of the third respondent. The committee of the first respondent – Society
requested the third respondent to sanction the excess amount. Since the
petitioner did not get the excess amount spent by him inspite of repeated
requests, he filed A.R.C.No.3611 of 2003 before the second respondent. As the
matter was referred under Section 69(4) of the Kerala Co-operative Societies Act,
1969 (hereinafter referred to as “the Act”), it was the duty of the second
respondent to resolve the dispute. But, the second respondent without
considering the merits of the contentions of the petitioner passed Ext.P6 award
stating that the case is not maintainable. Aggrieved by the above order, the
petitioner has approached this Court.
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2. Learned counsel appearing for the petitioner submits that since the
dispute comes under Section 2(i) of the Act touching the business of the Society,
the second respondent has to decide the dispute as per law. Counsel further
submits that in the light of the decisions of this Court reported in Sekharan v.
State of Kerala, 1976 K.L.T. 137, Umadevi v. Asst. Registrar, 2004(3)K.L.T.
450 and K.S.R.T.C. v. Kerala State Transport Employees Co-op. Society Ltd.,
2005(4) K.L.T. 662, Ext.P6 award passed by the second respondent is
unsustainable.
3. Even though notice was served on the first respondent, there was no
appearance. Learned Government Pleader appeared for respondents 2 and 3.
Relying on the counter affidavit filed for and on behalf of the second respondent,
the learned Government Pleader submits that the dispute raised by the petitioner
is one which would not come under the purview of Section 69 of the Act. He
further submits that an appeal is provided under the Act against Ext.P6 award.
4. The question to be decided in this Writ Petition is whether the dispute
now raised by the petitioner can be deemed as a dispute coming under the
provisions of the Act so as to be resolved by the second respondent. Sub-section
W.P.(C)NO.4895/2005 3
(i) of Section 2 of the Act defines the terms ‘dispute’ as follows:
“‘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.”
As per Section 69 (1) (f) of the Act, if a monetary dispute arises between the
society and a person, other than a member of the society, who has been granted a
loan by the society or with whom the society has or had business transactions or
any person claiming through such a person, such dispute shall be referred to the
Registrar. Section 100 of the Act provides that no civil or revenue court shall
have any jurisdiction in respect of any matter for which provision is made in the
Act.
5. A reading of the above provisions would indicate that the second
respondent has jurisdiction to decide the dispute. The second limb of Section 2
(i) of the Act actually takes in any claim in respect of any sum payable to or by
a society, whether such claim be admitted or not. Admittedly, the claim put
forward by the petitioner is with regard to the excess amount spent by him for
W.P.(C)NO.4895/2005 4
construction of the office building of the first respondent – Society. It can be
seen from Section 69(1) of the Act that such disputes can be referred to the Co-
operative Arbitration Court in the case of non-monetary disputes and to the
Registrar in the case of monetary disputes and the Arbitration Court or the
Registrar, as the case may be, shall decide such disputes. This question was
already considered by a learned Single Judge of this Court in the decision
reported in Sekharan v. State of Kerala, 1976 K.L.T. 137 and also by a
Division Bench of this Court in the decision reported in Umadevi v. Asst.
Registrar, 2004(3) K.L.T. 450 and this Court held that disputes arising between
a society and a person who had business transactions with the society can be
resolved by the Registrar.
6. In the light of the above legal pronouncements and the provisions
contained in the Act, this Court is of the view that the dispute now raised by the
petitioner has to be resolved by th second respondent. Hence, Ext.P6 award is
arbitrary and irregular. The stand taken by respondents 2 and 3 that an appeal is
provided under Section 82 of the Act is not a ground for not interfering with
Ext.P6 award as the award itself is one in which jurisdiction is erroneously
exercised. Accordingly, Ext.P6 award is quashed and the second respondent is
W.P.(C)NO.4895/2005 5
directed to consider the claim of the petitioner afresh as per law.
The Writ Petition is disposed of as above.
(K.THANKAPPAN, JUDGE)
sp/
K.THANKAPPAN, J.
W.P.(C)NO.4895/2005 6
W.P.(C)NO.4895/2005
JUDGMENT
1ST AUGUST, 2006