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K.T. MANOHARAN, KARATHUTHAZHA VEEDU versus THALAKULATHUR HOUSE CONSTRUCTION

High Court of Kerala

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K.T. MANOHARAN, KARATHUTHAZHA VEEDU v. THALAKULATHUR HOUSE CONSTRUCTION - WP(C) No. 4895 of 2005(G) [2006] RD-KL 377 (1 August 2006)

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.

W.P.(C)NO. OF

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. W.P.(C)NO.4895/2005 2

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


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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