M. SUGATHA KUMAR Vs. ASSISTANT REGISTRAR OF CO.

JUDGEMENT

(1.) This writ petition is filed challenging Exhibits P3 and P4 orders issued by the Arbitrator and the Co-operative Tribunal respectively on the question of maintainability of ARC.No.2351 of 2016 before the 2nd respondent. It is submitted that the petitioner herein was a practicing lawyer. On the contention that the respondent Society had engaged the petitioner to file execution petitions for executing awards passed in favour of the Society and had paid an amount of Rs. 12,24,500/- as professional fee and that the petitioner did not conduct the case and returned the awards to the Society without even filing execution petitions, the ARC is filed seeking return of the amounts paid as professional fees, with interest.

(2.) It is stated that the petitioner had filed a written statement and had raised the issue of maintainability of the ARC as a preliminary issue. He had also approached this Court and by judgment dated 27.9.2017 in W.P(C).No.30654 of 2017, this Court directed the 2nd respondent to pass orders on the petitioner on the preliminary issue. Exhibit P3 order was issued by the Arbitrator pointing out that as the dispute is between the Society and it's agent, it is maintainable under Section 69 of the Kerala Co-operative Societies Act, 1969 (for short, 'the Act'). The petitioner had preferred a revision petition before the Tribunal, which was considered and disposed of as per Exhibit P4 order. The issue of maintainability and limitation was considered by the Tribunal also in Exhibit P4. The Tribunal found that the petitioner, who was an advocate and legal practitioner, had accepted payment as per Exhibits P1 to P5 for the purpose of filing execution petitions and had returned the files without filing the execution petitions. It is stated that he had not returned the amount taken by him for filing the execution petitions and therefore the dispute between the petitioner and the Society squarely comes within 'dispute' as defined in Section 2(i) of the Act. The question of limitation was also found against the petitioner and the petitioner was directed to appear before the Arbitrator for consideration of the matter on merits.

(3.) Learned counsel for the petitioner contends that going by the definition 'dispute' as contained in the Act as also on a reading of Section 69 of the Act, only those disputes touching the business of the Society can be adjudicated under Section 69 of the Act. It is stated that this court in its decision in Vazhayil Meethal Hyrunnisa and Others v. Koothali Service Co-operative Bank Ltd., Perambra,2016 3 KHC 396 has held that a dispute with regard to return of money misappropriated by a collection agent would not be a dispute touching the business of the Society and therefore a suit for realisation of damages would be maintainable. The learned counsel has also relied on a decision of the Calcutta High Court in Veer Probhu Marketing Limited and Others v. National Supply Corporation and Others,2006 KHC 3335 to contend that an advocate is not per se an agent of his client, since an advocate is not entitled to act in a professional capacity as well as a Constituted Attorney of a party in the same matter or cause. It is further contended that the proper course for the Society was to approach a civil court for recovery of amounts, if any, due from the petitioner.