In Commissioner Of Income Tax v. Chhabil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY ,THE 24TH DAY OF SEPTEMBER 2018 / 2ND ASWINA, 1940WP(C).No. 4923 of 2018 PETITIONER: THE POOVAR SERVICE CO-OPERATIVE BANK LTD NO.3966REPRESENTED BY ITS SECRETARY, POOVAR P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695 525. BY ADVS.SRI.R.T.PRADEEPSRI.K.C.HARISH BY ADVS.SRI.GILBERT GEORGE CORREYA,SC,KERALA STATE CO-OPERATIVE BANK LTD.SRI.THOMAS ABRAHAM, SC THIRUVANANTHAPURAM DIST. CO.OP BANKSRI. BIMAL K NATH, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, which is a Service Co-operative Bank registered under the Kerala Co-operative Societies Act, 1969 has filed this writpetition under Article 226 of the Constitution ofIndia, seeking a writ of mandamus commandingrespondents 3 and 4 to release the share amount ofRs.1 crore, borne out by Ext.P3 certificate dated30.08.2013 and adjust the said amount in the loanaccount of the petitioner, pertaining toflood/drought loan for the purpose of closing thesaid loan transaction and to release the dividendpayable on such share amount, till the date ofadjustment in the loan account, to the petitionerforthwith, within such time as may be fixed bythis Court. 2.This writ petition was originally filedon 12.02.2018, seeking a writ of mandamuscommanding respondents 3 and 4 to release theshare amount of Rs.1 crore in the share capital ofthe 3[rd] respondent, as borne out from Ext.P3, with interest extracted from the said amount to thepetitioner immediately. The petitioner has alsosought for other consequential reliefs. Later, bythe order dated 01.08.2018,in I.A.No. 13947/2018, the writ petition was amended incorporatingadditional statement of facts, grounds andreliefs. 4.Heard the learned counsel for the petitioner, the learned Senior Government Pleaderappearing for the 1[st] respondent, the learnedcounsel for the 2[nd ]respondent Kerala State Co-operative Bank and also the learned counsel forThiruvananthapuram District Co-operative Bankrepresenting respondents 3 and 4. 5.The grievance of the petitioner is that a sum of Rs.1 crore is retained by the 3[rd] respondentBank, towards the share amount, which is contraryto the relevant provisions, whereby the petitionerhas to maintain only a share ratio of 2% of theloan amount outstanding. The total loan amountoutstanding comes to Rs.10,12,26,778/- and as such the petitioner needs to maintain only a sum ofRs.20,24,536 as share amount. On the other hand, the petitioner is already having shares worthRs.29,36,750/-. 6.The claim made by the petitioner for release of the share amount of Rs.1 Crore borneout by Ext.P3 certificate is seriously in disputein the counter affidavit filed by respondents 3and 4. 7.Having considered the pleadings and materials on record and also the submissions madeby the learned counsel of both sides, this Courtfinds that the dispute between the petitioner andrespondents 3 and 4 squarely falls within the scope of Section 69 of the Kerala Co-operativeSocieties Act, which has to be dealt with by theRegistrar of Co-operative Societies in terms ofthe said provision. 8.In Commissioner of Income Tax V. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court reiterated that, non-entertainment of a writ 6.The claim made by the petitioner for release of the share amount of Rs.1 Crore borneout by Ext.P3 certificate is seriously in disputein the counter affidavit filed by respondents 3and 4. 7.Having considered the pleadings and materials on record and also the submissions madeby the learned counsel of both sides, this Courtfinds that the dispute between the petitioner andrespondents 3 and 4 squarely falls within the scope of Section 69 of the Kerala Co-operativeSocieties Act, which has to be dealt with by theRegistrar of Co-operative Societies in terms ofthe said provision. 8.In Commissioner of Income Tax V. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court reiterated that, non-entertainment of a writ petition under Article 226 of the Constitution ofIndia when an efficacious alternative remedy isavailable is a rule of self-imposed limitation. Itis essentially a rule of policy, convenience anddiscretion rather than a rule of law. Undoubtedly,it is within the discretion of the High Court togrant relief under Article 226 of the Constitutionof India, despite the existence of alternativeremedy. However, High Court must not interfere ifthere is an adequate efficacious alternativeremedy available to the petitioner and he hasapproached the High Court without availing thesame, unless he has made out an exceptional casewarranting such interference or there existssufficient ground to invoke the extraordinaryjurisdiction under Article 226. 9.Viewed in the light of the law laid downin the decision referred to supra, conclusion isirresistible that the remedy open to thepetitioner is to invoke the provisions underSection 69, by approaching the Registrar of Co- operative Societies for resolution of the dispute.In such circumstances, this writ petition filed on12.02.2018 is dismissed as not maintainable, without prejudice to the right of the petitioner to invoke statutory remedy available under Section69 of the Act. It is made clear that observations, if any,contained in this judgment touching the merits of the case are made for the limited purpose ofdisposal of this writ petition. All legal and factual contentions raised by both sides are left open to be raised before theRegistrar of Co-operative Societies at appropriatestage. Sd/- ANIL K.NARENDRAN, JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF SANCTIONING LETTER OF LOANDATED 31-7-2013 BY 3RD RESPONDENT. EXHIBIT P2TRUE COPY OF PROMISSORY NOTE DATED 21-8-2013. PA TO JUDGE