P.K.Kumaresan v. The Deputy Registrar of Co-operative Societies, Erode Circle, 1, Thirunvenkatasamy Street, Erode & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:25.03.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.154 of 2009and M.P.No.1 of 2009 1. P.K.Kumaresan2. P.Karthikeyan.. Appellants/Plaintiffvs.1. The Deputy Registrar of Co-operative Societies, Erode Circle, 1, Thirunvenkatasamy Street, Erode 1.2. The Special Officer, K1161, Elavamalai Primary Agricultural Cooperative Bank, Kalingarayanpudur, Bhavani 638 301 Erode District... Respondent/DefendantsThis second appeal is filed against the judgment and decree dated19.08.2008 made in A.S.No.127 of 2007 on the file of the PrincipalSub Court, Erode, confirming the judgment and decree dated 24.09.2007made in O.S.No.390 of 2005 on the file of the First AdditionalDistrict Munsif Court, Erode.For Appellants : Mr.N.ManokaranFor Respondents : No appearanceORDERThis second appeal is focussed by the original plaintiffs,animadverting upon the judgement and decree dated 19.08.2008 passedin A.S.No.127 of 2007 by the Principal Sub Court, Erode, confirmingthe judgement and decree of the trial Court, namely, First AdditionalDistrict Munsif Court, Erode, in O.S.No.390 of 2005. For conveniencesake, the parties are referred to hereunder according to theirlitigative status before the trial Court. https://hcservices.ecourts.gov.in/hcservices/

2. Pithily and precisely, tersely and briefly, avoidingdiscursive delineation of facts in view of the case of both sideshaving been set out in detail in the judgments of both the Courtsbelow, I would like to set out the germane facts thus:The second appellants/plaintiffs filed the suit O.S.No.390 of2005 seeking the following reliefs:"To pass a decree and judgment against the defendants:(1) By declaring the order of conditional attachment - made bythe 1st defendant herein in CEP No.92/2003-2004 dated 02.07.2004 isnull and void against the schedule mentioned properties of the suitproperties herein.(2) By restraining the defendants, their men and agents and anyother officials of the defendant herein from bring the schedulementioned properties for sale by means of the consequential permanentinjunction. ..."The defendants entered appearance and filed the written statementand resisted the suit. 3. The trial Court framed the relevant issues. During trial, thefirst plaintiff examined himself as P.W.1 and Exs.A1 to A10 weremarked. On the side of the defendants, one Shankaran was examined asD.W.1 and Exs.D1 to D13 were marked. 4. Ultimately, the trial Court dismissed the suit, as againstwhich appeal was filed, for nothing but to be dismissed by theappellate Court, confirming the judgment and decree of the lowerCourt. Being disconcerted and aggrieved by the judgments of both theCourts below, this Second Appeal is sought to be filed on variousgrounds and also by suggesting the following substantial questions oflaw:"(a) Whether the courts below committed an error in law inholding that the suit is barred under Section 156 of the Tamil NaduCooperative Societies Act especially when the authorities under theAct have no jurisdiction to decide the question of title particularlywhen the plaintiffs are not parties to the loan document?(b) Whether the Courts below are erred in law and misdirectedthemselves in dismissing the suit filed against the order ofattachment dated 02.07.2004 (Ex.A.2) relating to the loan borrowed bythe mother of the appellants particularly when the judgment debtorhad no interest or right over the property sought to be attached inview of the release deed dated 30.09.2002 (Ex.A.3) in the name of theappellants? https://hcservices.ecourts.gov.in/hcservices/ (c) Whether the Courts below have properly appreciated andapplied the principles of law to find out the validity of the orderof attachment before judgment dated 02.07.2004 in view of the factthat the 1st respondent had not adjudicated the claim under the Rules135 and 137 of the Tamil Nadu Cooperative Societies Rules 1988?"5. Heard the learned counsel for the appellants.6. A bare poring over and perusal of the typed set of papersincluding the copies of the judgments of both the Courts below andalso considering the arguments of the learned counsel for theappellants, it is evident that the plaintiffs happened to be the sonsof one Karuppannan who was an employee under R2. It appears somesurcharge proceedings were initiated as against him. In the processof such surcharge proceedings, the suit property was attached by theauthority vide proceedings dated 02.07.2004, which is in the form ofprohibitory order. The plaintiffs approached the Court by filing thesuit, challenging and impugning the said proceedings on the groundthat even as early as in the year 2002, the said Karuppannan executedthe release deed in favour of his two sons, the plaintiffs herein andas such, the authority was not justified in issuing such an order.Both the Courts below adverting to Rule 135 of the Tamil Nadu Co-operative Societies Rules, 1988 and Section 156 of the Tamil Nadu Co-operative Societies Act, 1983 held that the suit was not maintainable.7. The learned counsel for the plaintiffs advanced his argumentto the effect that the plaintiffs are not servants of R2 and theirfather Karuppannan even though happened to be the servant under R2,long before passing of the impugned order dated 02.07.2004 by theDeputy Registrar, released whatever right he had in the suit propertyand thereby, as on the date of the impugned order, Karuppannan wasnot at all concerned with that property and in such a case, theplaintiffs being third parties to the proceedings initiated by theDeputy Registrar had the right to file the suit.8. At this juncture, my mind is redolent and reminiscent of theearlier judgment of this Court reported in 2008(4) L.W.251[M.MV.Alagappan and another v. Karaikudi Co-operative House BuildingSociety Ltd. represented by its Special Officer, Karaikudi andanother]. Of course, the said judgment is on a different set offacts, but it is based on the following maxims:"Expressio unius, exclusio alterius, Expressum facit cessaretacitum, Generalia specialibus non derogant", "quando aliquidprohibetur, prohibetur et omne per quod devenitur ad illud."and the ratiocination adhered to in holding that Civil Court ishaving no jurisdiction in respect of matters like this would besquarely applicable to the facts and circumstances of this case also. https://hcservices.ecourts.gov.in/hcservices/

9. The relevant portion of Rule 135 is extracted hereunder forready reference:"135. Investigation of claims and objections to attachment ofproperty: (1) Where any claim is preferred to, or any objection ismade to, the attachment of any property attached under these rules onthe ground that such property is not liable to such attachment, thesale officer shall investigate the claim or objection and dispose ofit on merits:Provided that no such investigation shall be made when the saleofficer considers that the claim or objection is frivolous.(2) Where the property to which the claim or objection relateshas been advertised for sale, the sale officer may postpone the salepending the investigation of the claim or objection.(3) Where a claim or an objection is preferred, the party,against whom an order is made by the sale officer, may institute asuit within six months from the date of the order to establish theright which he claims to the property in dispute, but subject to theresult of such suit, if any, the order made by the sale officer shallbe conclusive.(4)(a) ....."The said Rule presupposes that even a third party who might have beenaggrieved by the order of the authority under the Tamil Nadu Co-operative Societies Act and Rules should necessarily approach theauthority concerned under the Act and get an order and thereafteralone, he could challenge it in the Civil Court. Hence in such acase, there is no force in the contention of the plaintiffs that theybeing third parties are having the right to file a suit straight away.10. The learned counsel for the plaintiffs would make anextempore and impromptu representation to the effect that as revealedby the records, even as early as on 01.03..2005 objection was filedbefore the Officer concerned, but the same was not considered.11. At this juncture, what I would like to observe is that if thesaid representation was not sufficient in the view of the authorityunder the said Act, it is open for him to supplement it in the properform as prescribed by the Rules and also, by paying necessary fee, ifany, and press for it, whereupon, the authority concerned shall dealwith it and pass appropriate orders. I would also like to directthat within a period of one month from the date of receipt of a copyof this order, the plaintiffs shall approach the authority withnecessary application, whereupon without insisting on limitationpoint, the authority shall entertain the application and pass orderson merits, untrammelled and uninfluenced by any of the observationsmade by this Court in disposing of this Second Appeal. https://hcservices.ecourts.gov.in/hcservices/ Accordingly this Second Appeal is dismissed. No costs.Consequently, connected miscellaneous petition is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.gmsTo1. Principal Subordinate Judge, Erode.2. First Additional District Munsif, Erode.+ 1 CC To Mr.N.Manokaran, Advocate SR NO.9771 S.A.No.154 of 2009LA {CO}TP/10.6.2009.