KASTHURI RAJAN Vs. PONNAMMAL AND ORS.

JUDGEMENT

(1.) The plaintiffs in O.S. No. 165 of 2011 of the Sub Court, Pala, aggrieved by the finding in issue No. 1 and the order returning the plaint to be presented before the proper court having jurisdiction has preferred this appeal. The plaintiffs are legal representatives of one Rajan Achari. Defendants 1 to 4 are the legal representatives of one Lakshmikutty Animal. Both the predecessors stood as sureties to the 5th defendant, for availing a loan from the 6th defendant, Kottayam District Co-operative Bank. The 5th defendant committed default in repayment of loan, whereupon proceedings were initiated by the Co-operative Society before the Registrar of the Co-operative Societies and obtained an arbitration award. During the pendency of the execution proceedings, predecessors of the plaintiffs as well as that of defendants 1 to 4 died and their legal representatives stepped into the shoes.

(2.) Since the property belonging to the plaintiffs were proceeded against, under a threat of sale, plaintiffs discharged the liability due to the bank. Thereafter, the present, suit was filed by the plaintiffs to recover one half of the said amount due from legal representatives of the co-surety, invoking Sec. 146 of the Indian Contract Act.

(3.) In the written statement filed by defendants 1 to 4, they set up a contention that the civil suit was not maintainable and an arbitration proceeding under the Kerala Co-operative Societies Act, 1969 alone was sustainable. It was contended that Sec. 69 of the Kerala Co-operative Societies Act would operate as a bar. Learned Sub Judge raised a preliminary issue and after hearing both sides, held that in the light of Section 69 and Section 100 of the Kerala Co-operative Societies Act, the suit was not maintainable. Plaint was ordered to be returned for presentation before the proper court.