Ranganathan.. Petitioner v. The Co-operative Sub-Registrar /Sale OfficerNellikuppam Cooperative House Building Society Ltd. & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 08..02..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 9729 of 1999Ranganathan.. Petitioner Vs.1.The Co-operative Sub-Registrar /Sale OfficerNellikuppam Cooperative House Building Society Ltd.E. No. 2734212 Main Road, Nellikuppam2.The SecretaryNellikuppam Cooperative House Building Society Ltd.E. No. 2734212 Main Road, Nellikuppam3.The Deputy Registrar (Housing)ArbitratorCuddalore .. Respondents (R3 impleaded as per order dated 6.11.2007 in WPMP.2601 to 2603/97)Petition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorarified Mandamus callingfor the records in proceedings CEP. 151/84-85 and dated26.8.1997 on the file of the third respondent and quash thesame as illegal, incompetent and without jurisdiction andfurther direct the third respondent to conduct enquiry as setout in rule 128, Tamil Nadu Co-operative Societies Act. (Prayeramended as per order dated 6.11.2007 in WPMPs 2601 to 2603/07)For Petitioner : Mr. V. RaghavachariFor Respondent 2 : Mr. R. MuralidharanCOMMON ORDERHeard the arguments of Mr. V. Raghavachari, counsel forthe petitioner and Mr. R. Muralidharan, learned counsel for thethe second respondent and perused the records. https://hcservices.ecourts.gov.in/hcservices/

2.In this writ petition, the petitioner (as per theprayer amended on 06.11.2007) seeks to challenge the ExecutionProceedings in CEP No. 151 of 1984-85 dated 26.8.1997 on thefile of the third respondent (who was impleaded on 06.11.2007)3.The petitioner was a driver in the NellikuppamMunicipality and at the time of filing the writ petition, it isstated that he was 52 years old and by now, he would have gotretired from service. At the time when he was in the serviceof the Municipality, he became a member of the Nellikuppam Co-operative House Building Society and he availed loan of a sumof Rs. 12,000/- with 10.75% interest. He also executed aregistered Deed of Mortgage dated 24.6.1974. Subsequently,as he did not pay the instalment of the loan repaymentproperly, the second respondent initiated arbitrationproceedings under Section 90 of the Tamil Nadu Co-operativeSocieties Act, 1983 [for short, 'TNCS Act'] in A.R.C. No.20/77. The petitioner is fully aware of the said proceedingsand there has been some correspondence between the petitionerand the Municipal Commissioner and even in his letter dated26.10.1993 addressed to the first respondent, he had referredto the execution proceedings initiated pursuant to the Award inE.P. No. 151/84-85. Instead of challenging the Award in themanner know to law, viz., filing of an appeal under Section 152of the TNCS Act before the Co-operative Tribunal, he hadinitiated a correspondence war with the Society stating that hehas not received the copy of the Award and merrily continued tobe a defaulter. It was only when a distraint notice was givenby the Society on 28.5.1999 bringing the house property forsale, which advertisement was also published in newspaper DailyThanthi on 05.6.1999, the petitioner chose to move this Courtwith the present writ petition. In fact, when the petitionerfiled the present writ petition, this Court passed an order on10.6.1999 stating that the sale can go on but the confirmationcannot be made until further orders. 4.But in the counter affidavit dated 04.8.1999, it isstated that even as early as on 20.7.1998, the saleconfirmation had taken place. A typed set was filed by thesecond respondent containing the Award proceedings and thesubsequent distraint notice issued against the petitioner.It is also brought to the notice of this Court that thepetitioner moved the Cuddalore District Consumer RedressalForum with a petition in C.O.P. No. 122 of 1995 for a prayerthat since he had not been given the copy of the Award butcontinued to proceed with the execution proceedings and for themental agony, the second respondent ought to give him Rs.25,000/-. The District Consumer Forum, by its judgmentdated 31.8.1998, dismissed the petitioner's complaint onmerits. It was found as a matter of fact that the petitioner https://hcservices.ecourts.gov.in/hcservices/ had been given the copy of the Award proceedings dated06.4.1978 by post and that the Society had sent a copy to theAdvocate of the petitioner on 31.12.1987. Therefore, theConsumer Forum held that the petitioner's case for compensationcannot be entertained. This order was not challenged furtherby the petitioner even though it was made as early as on31.8.1998. This fact of dismissal by the Consumer Forum ofthe complaint by the petitioner after trial and arguments, wasnot mentioned by the petitioner in his affidavit. In fact,in paragraph 5, the petitioner had averred as follows:"Agitated by the procedure that has beenfollowed, I have even instituted a complaintbefore the Consumer Court and the same couldnot be processed on account of the ill-health ofmy Advocate."5.This will clearly show that the petitioner haddeliberately suppressed the trial before the District ConsumerForum and the order was passed on merits against him. Thisis a clear case of suppression of material facts while comingbefore this Court and on this ground, the writ petition isliable to be dismissed.6.Further, the finding of the District Consumer Forumthat the petitioner was in receipt of the Award clearly staresat his face and, therefore, filing the writ petition after aperiod of 20 years without challenging the Award, thepetitioner is guilty of latches. Without challenging thesubstantive portion of the Award, the petitioner cannotchallenge the resultant execution proceedings. Thetransaction between the petitioner and the second respondentSociety is one of contractual in nature and the petitionercannot maintain a writ petition to enforce the term ofcontract. 7.Furthermore, Mr. Raghavachari, learned counselappearing for the petitioner, contended that the finding of theConsumer Court is not binding on this Court and this Courtshould proceed as if the petitioner was not aware of thearbitration proceedings and in any event, the petitioner mustbe given permission to challenge the Award at least nowonwards. This submission is devoid of any merits. Thequestion of the petitioner being granted permission tochallenge the Award passed in the year 1978 after a period of30 years, cannot be permitted considering his conduct andbehaviour. 8.It was thereafter, the petitioner submitted that theAward passed by the Arbitrator, a copy of which is filed by thesecond respondent, is bereft of any reasons and even though hemight have remained ex parte, it should contain reasons. https://hcservices.ecourts.gov.in/hcservices/ For this purpose, the learned counsel relied upon the judgmentof the Supreme Court reported in 1991 Supp (2) SCC 561 [KeralaTransport Company v. Shah Manilal Mulchand and others] andsubmitted that reasons must be recorded by the Appellate Courteven while confirming the finding of the trial Court. Theorder dated 10.6.1999 passed by this Court that the sale can goon but the confirmation cannot be made until further orders,was subsequently modified by an order dated 30.12.2002 whereinthe petitioner was directed to deposit the entire loan amountwith interest and expenses in respect of sale proceedingswithin a period of eight weeks from the date of order failingwhich the stay is deemed to be vacated. I do not know as tohow the said judgment will have any application to the presentcase. 9.In fact, in the order dated 26.02.1997, thepetitioner's request to set aside the sale was refused as novalid and sufficient reasons are shown by the petitioner. Ina case of loan transaction, the Society maintains all thetransactions on record and unless the petitioner proves that hehas paid the amount in terms of the loan agreement, there is noother defence that can be available to the petitioner.Further, the conduct of the petitioner narrated above willclearly show that his only intention was to dodge the paymentsby making untenable contentions. This is not a fit case wherethis Court should show any indulgence. The petitioner,having miserably failed to avail the remedies provided underthe TNCS Act, cannot come before this Court after a period oftwo decades to set aside the Award and the sale confirmationmade in his respect of his mortgaged properties. Theattempt of the petitioner is a clear abuse of process of thisCourt and the writ petition misconceived and devoid of merits.10.Accordingly, the writ petition will stand dismissed.The petitioner is directed to pay Rs. 1000/- (Rupees onethousand only) as cost to the second respondent.GriSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Co-operative Sub-Registrar /Sale OfficerNellikuppam Cooperative House Building Society Ltd.E. No. 2734212 Main Road, Nellikuppam2.The Deputy Registrar (Housing)ArbitratorCuddalore+ 1 cc to Mr. V. Raghavachari, Advocate SR No. 6383+ 1 cc to Mr. R. Muralidharan, Advocate SR No. 6537IV(CO)SR/14.2.2008 Order inW.P. No. 9729 of 1999