C.U.RAMAN Vs. T. JOSEPH GEORGE

JUDGEMENT

(1.) The Secretary of the Choondal Model Panchayat Cooperative Society Ltd. No. 422, Choondal, Trichur District (hereinafter: the Society) is the petitioner herein. The affairs of the Society were at the material time, 18th February 1965, managed by respondents Nos. 1 to 5 who constituted its then committee. (The 1st respondent died and his legal representatives have been impleaded as additional respondent No. 7 onwards as per order on C.M.P. No. 664 of 1979). This committee on that day sold some properties owned by the society for Rs. 9,005. There were some complaints that these properties were undersold, and the committee was superseded on 13th July 1966 obviously under S.49 of the Travancore Cochin Cooperative Societies Act, 1951 (hereinafter: Travancore Cochin Act) which was then in force and governed the society. A rectification officer was appointed to manage the society's affairs. He on 4th January 1967 submitted a reference under S.60 of the Travancore Cochin Act claiming Rs. 22,105 from respondents Nos. 1 to 5 on the basis that the properties sold by them were really worth Rs. 31,110. The Deputy Registrar of Cooperative Societies, Trichur, passed an Award in favour of the Society for Rs. 10,262.50 with interest at 6 1/4 per cent from 29th September 1973, the date of the Award. In the meanwhile on 15th May 1969 the Kerala Cooperative Societies Act, 1969 (hereinafter: the Kerala Act) came into force, respondents Nos. 1 to 4 and the Society preferred appeals before the Tribunal under S.82 of the Kerala Act, the former disputing their liability and the latter claiming the full amount. The Tribunal held that the reference was bad and incompetent in so far as an order of surcharge could be passed against respondents Nos. 1 to 5. This decision is impugned herein.

(2.) S.58 of the Travancore Cochin Act conferred power on the Registrar to assess damage and to pass an order of surcharge against the persons mentioned therein, and is similarly worded as S.49 of the Madras Cooperative Societies Act, 1932 (hereinafter: the Madras Act). This section of the Madras Act was considered by the Madras High Court in Sundaram Iyer v. Deputy Registrar, Cooperative Societies ( AIR 1957 Mad. 634 ). Noticing that a party aggrieved can under S.49(2) corresponding to S.58(2) of the Travancore Cochin Act question a surcharge order before a civil court whereas such a party can have no recourse to a civil court in respect of an Award passed under S.51 of the Madras Act (this corresponds to S.60 of the Travancore Cochin Act) to his prejudice, it was held -

(3.) Laying down the above stated principles the Madras High Court in Sundaram Iyer's case (AIR 1957 Mad. 634) directed the Registrar to treat the plaints filed under the provisions of S.51 of the Madras Act (section 60 of the Travancore Cochin Act) as invoking his jurisdiction to pass surcharge orders under S.49 of that Act and proceed accordingly. On the principles stated above, if the case on hand is one to be decided with reference to the provisions of the Travancore Cochin Act (it appears that it is possible to argue so in view of the decision of this Court in Deputy Registrar Cooperative Societies v. Kunhikannan ( 1979 KLT 152 ) and S.110(2) of the Kerala Act) and further if it is one that falls both under S.58 and under S.60 of the Travancore Cochin Act, the proper course would be to direct the Deputy Registrar, to treat the plaint filed by the rectification officer as one invoking his jurisdiction under S.58 of the Travancore Cochin Act, and to proceed accordingly instead of dismissing the reference, as appears to have been done by the Tribunal in this case. However, it is not; necessary to decide this question as to which statute governs this case herein, as in my view whichever statute, the Travancore Cochin Act or the Kerala Act, governs the case on hand, it is one outside the ambit of the rule laid down in the Sundaram Iyer's case(1) as will presently be shown.