NOPURU PATTABHIRAMI REDDI Vs. CO OPERATIVE SUB REGISTRAR LIQUIDATION NELLORE CO OPERATIVE CENTRAL BANK NELLORE

JUDGEMENT

(1.) This is a revision against an order of the Sessions Judge, Nellore, refusing to recommend to the High Court, to set aside the order of the Additional Judicial First Class Magistrate, Nellore, directing the petitioner herein under section 117 of the Andhra Pradesh Co-operative Societies Act, 1964, hereinafter referred to as " the Act ", to hand over the records and cash amounting to Rs. 14,633-40 Ps. belonging to Pottompadu Multipurpose Co-operative Society to the respondent herein, viz., the Liquidator appointed, to the Society.

(2.) The Liquidator filed a petition under section 117 of the Act against the petitioner as second respondent, who was the earlier president of the Society in question and the President of the Society at the time of liquidation as first respondent. After filing of the petition before the Magistrate the Liquidator received all the records of the Society and the only thing that remained to be handed over was cash of Rs.14,633-40 Ps. The Magistrate directed both the petitioner arid his successor, who were respondents before him, to deliver the cash to the Liquidator. Against that order of the Magistrate, it is only the present petitioner who filed a revision petition before the Court of the Sessions Judge, Nellore. The learned Sessions Judge dismissed the revision petition confirming the order of the Magistrate. The petitioner, while he was acting as President of the Society, was adjudged insolvent and consequently he ceased to be the President of the Society. Thereafter he handed over the records on 28th June, 1967 to his successor, viz., respondent No.1 before the Magistrate. Subsequently the society was wound up On 5th May, 1970 and the respondent herein was appointed as Liquidator. The respondent obtained a certificate from the Deputy Registrar, Co-operative Societies, directing the petitioner and his successor to hand over the records, cash and other properties of the Society to the respondent. When the Petitioner and his successor failed to comply with the direction of the Deputy Registrar, the liquidator filed the petition under section 117 of the Act before the Magistrate. The petitioner filed a counter stating that he had handed over the cash along with the records to his successor on 28th June, 1967, and subsequently obtained Exhibit D-1, receipt dated 26th December, 1970, which, means subsequent to appointment of the respondent as Liquidator. Mr. G. Suryanarayana Murthy, the learned Counsel for the petitioner tried to argue that the certificate issued by the Deputy Registrar is not proper, that he was not given notice before granting the certificate and the matter has to be gone into on merits and a direction can be given to the petitioner only if he is found on enquiry by the Magistrate liable to refund the amount and the Magistrate without making any such enquiry solely on the basis of the certificate issued by the Deputy Registrar passed the order in question which is not correct. On the other hand, it is contended by learned Public Prosecutor that the Magistrate in an application filed under section 117 of the Act cannot go behind the certificate issued by the Registrar and the duty of the Magistrate is only to give effect to it and give the necessary direction. It is provided under sub-section (1) of section 117 that whenever a new committee is elected or a person is appointed or the committee is superseded by the Registrar and a Special Officer or managing committee is appointed or where the society is ordered to be wound up and a liquidatoi is appointed and such new committee, special officer managing committee or liquidator is resisted or prevented from obtaining possession of the records and other properties of the Society by the previous committee etc., any Magistrate of the First-Class in whose jurisdiction the office of the Society or the records and properties of that society are situated, on an application by the new committee etc., and on production of the certificate from the Registrar in the prescribed form setting forth, the reasons therefor direct delivery to the new committee etc., of the records and properties of the Society. It is provided under sub-section (2) of section 117 that no certificate shall be issued by the Registrar under sub-section (1) without making such inquiry as he deems necessary. It is also provided under subsection (3) that for the purpose of the proceedings under sub-section (1), the certificate issued by the Registrar shall be conclusive evidence that the records and properties to which it relates belong to the society. Sri Suryanarayana Murthy, has argued that what is mentioned in sub-section (3) is only with, regard to the ownership of the properties and the collusiveness referred to therein does not relate to liability to produce records or properties, as the case may be. I do not think the learned Counsel is correct. What is mentioned in sub-section (1) is that the Magistrate is to direct delivery of the records and the properties of the society on an application made for the purpose with the certificate issued by the Registrar. If the certificate shows that the properties or records of the society are with some person and he is liable to deliver them to the society, on the basis of that the Magistrate can give a direction without any further enquiry because as provided under sub-section (2) before issuing such a certificate the Registrar is bound to make an enquiry, that means he can only issue the certificate after hearing the contending parties and the representations made by them. When it is said that for the purpose of the proceedings under sub-section (1) before the Magistrate the certificate given by the Registrar is conclusive evidence, it means that it is conclusive with regard to the matter decided in the enquiry by the Registrar with regard to the properties and records of the Society. It is true that sub-section (3) is not happily worded. But the intention of subsection (3) is clear. No decided case under section 117 in which a different view was taken has been brought to my notice. Both the sides placed before me some decided cases under section 87 of the Hindu Religious and Charitable Endowments Act, which is in similar terms as section 117 of the Act.

(3.) In the decision Satyanarayana v. Ramalingeswar Swami Temple, the facts are : A petition was filed under section 87 of the Hindu Religious and Charitable Endowments Act by the newly elected Chairman of the Board of Trustees of a temple against the hereditary trustee. 'The hereditary trustee contended that no meeting of the trustees was held after due notice to him and as such the election of the Chairman of the Board of trustees is not valid and that consequently no order can be made. Some other points were also raised. The Magistrate, before whom the petition was filed, has not gone into or determined the question of the validity of the election of the Chairman . This Court held that when the validity of the electionof the Chairman was questioned it was a jurisdictional point which will go to the root of the matter and the Magistrate should have determined it before passing any order under section 87.