Wa v. Commissioner Of Income Tax, Delhi-I((1983) 141 Itr 886(Delhi) To C

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY ,THE 31ST DAY OF AUGUST 2018 / 9TH BHADRA, 1940 WA.No. 1236 of 2016 IN WP(C). 5706/2010 AGAINST THE JUDGMENT IN WPC 5706/2010 of HIGH COURT OF KERALA DATED30-05-2016 APPELLANTS/PETITIONERS: 1JOHNY URUMEESES/O VARGHESE, MAMPILLY HOUSE, ALUVA 1.S/O VARGHESE, MAMPILLY HOUSE, ALUVA 1. 2TONY PAUL S/O PAUL DOMINIC, OORAKATH HOUSE, PIPELINE ROAD, NAZARATH, ALUVA. 3RAPHAEL LAZAR S/O A.O LAZAR, ALOOKARAN HOUSE, U.C.C COLLEGE P.O, ALUVA 2. 4T.M. RAHIMKOTTAPPURAM, ALANGAD. S/O T.P HYDROSE, AYANIKKATTU PARAMBIL HOUSE, BY ADVS. SRI. S. SREEKUMAR (SR.) SRI. AJAY BEN JOSE SRI. P. MARTIN JOSE SRI. P. PRIJITH SRI. THOMAS P.KURUVILLA RESPONDENTS/RESPONDENTS: 1STATE OF KERALAREPRESENTED BY SECRETARY TO DEPARTMENT OF CO-OPERATIVE,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2THE JOINT REGISTRAR. ERNAKULAM DISTRICT CO-OPERATIVE SOCIETY, ERNAKULAM, 3THE ALWAYE URBAN CO-OPERATIVE BANK LTDMARKET ROAD, ALUVA REPRESENTED BY ITS GENERAL MANAGER. 4RESERVE BANK OF INDIAURBAN BANK DEPARTMENT, THIRUVANANTHAPURAM. R1 & R2 BY SENIOR GOVERNMENT PLEADER SMT.K.R.DEEPA R3 BY ADV.SRI.R.REGHUKUMAR (ALUVA) R4 BY ADV.SRI.VIVEK VARGHESE P.J THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29.08.2018, THE COURT ON 31.08.2018 DELIVERED THE FOLLOWING: JUDGMENT Sathish Ninan, J The appellants-writ petitioners, were building tenants under the third respondent Co-operative Bank. The building wasacquired by the Bank in the year 1951. The Bank decided toreconstruct the building. Ext P1 agreement dated 08.11.1990 andsimilar agreements were entered into between the Bank and theappellants whereunder the appellants agreed to give vacantpossession of the tenanted premises to the Bank for the purposeof reconstruction and the appellants were to be put back inpossession of the reconstructed premises. 2. One of the members of the Bank challenged the resolutionbefore the Joint Registrar of Co-operative Societies. The JointRegistrar interfered with the same. The appellants appealedbefore the Government. Government set aside the order of theJoint Registrar rescinding the resolution. The Bank filed O.PNo.11671 of 1995 before this Court challenging the same. In themean time the Bank had filed a suit as O.S No.631 of 1994against the appellants, for eviction. Pending the proceedings,the matter was settled between the parties, and it was agreedthat the appellants will surrender vacant possession of thebuilding and on reconstruction they will be re-inducted into thepremises. Ext P3 agreement dated 04.11.1998, and similaragreements were executed between the appellants and the thirdrespondent bank in the said regard. 3. After reconstruction the appellants were not put back inpossession. The request of the appellants were turned down bythe third respondent bank citing that permission was refused bythe Reserve Bank of India to grant lease stating to be inviolation of Section 9 of the Banking Regulation Act 1949. Though the appellants challenged the same before this Court inO.P No.25872/2002, they were relegated to the Joint Registrarfor ventilation of their grievance. The Joint Registrar as perExt P7 order dated 29.04.2009 rejected their request referringto Section 9 of the Banking Regulation Act. The appeal preferredbefore the Government was also dismissed on the same lines, asper Ext P9 order. Challenging Ext P7 order of the JointRegistrar and Ext P9 order of the Government, the writ petitionwas filed. 4. The learned Single Judge as per the impugned judgment,left open the rights of the appellants to seek for specificperformance of the agreement before the competent civil court.Aggrieved, the tenants-writ petitioners are in appeal. Though the appellants challenged the same before this Court inO.P No.25872/2002, they were relegated to the Joint Registrarfor ventilation of their grievance. The Joint Registrar as perExt P7 order dated 29.04.2009 rejected their request referringto Section 9 of the Banking Regulation Act. The appeal preferredbefore the Government was also dismissed on the same lines, asper Ext P9 order. Challenging Ext P7 order of the JointRegistrar and Ext P9 order of the Government, the writ petitionwas filed. 4. The learned Single Judge as per the impugned judgment,left open the rights of the appellants to seek for specificperformance of the agreement before the competent civil court.Aggrieved, the tenants-writ petitioners are in appeal. 5. Heard Sri.Thomas P. Kuruvila, learned counsel for theappellants, Smt. Sumathi Dandapani, learned senior counsel forthe 4[th] respondent and Smt. K.R.Deepa, senior Government Pleader. 6. The learned counsel for the appellants took us throughSection 6 and 9 of the Banking Regulation Act to contend that,Section 6 authorises leasing of the property of the Bank acknowledging it as a form of business, and that it does notcome in conflict with the restriction of holding property beyond7 years of acquisition as mandated under Section 9 of theBanking Regulation Act. He would further submit that Section 9specifically uses the word 'hold' which would necessarilyinclude ownership coupled with possession, and that since in alease possession vests with the lessee, the restriction underSection 9 would not at any rate apply. He would further rely ona bench decision of the Delhi High Court reported in PanjabNational Bank Ltd. v. Commissioner of Income Tax, Delhi-I((1983) 141 ITR 886(Delhi) to contend that the prohibition underSection 9 would not be attracted in the case of lease. 7. Though the arguments of the learned counsel for theappellants are of significance, we do not think that this is theforum where the said issues are to be raised. In thisproceeding, what the appellants essentially seek for is specificperformance of Ext P3 agreement for lease. As rightly noticed bythe learned Single Judge, the remedy of the appellants is toapproach the civil court. The mere fact that as per Ext P6 judgment in O.P No.25872 of 2002 this Court relegated theappellants to the Joint Registrar to raise the questionregarding enforcibility of the agreement in view of Section 9 ofthe Banking Regulation Act, may not be of much significancesince the proper forum where the relief of specific performanceis to be sought for is the Civil Court. The Joint Registrarcould not be clothed with jurisdiction to grant such a relief. 8. In the circumstances, we make it clear that it will beopen for the appellants to approach the competent Civil Courtseeking the relief of specific performance of the agreement forlease, in accordance with law. The finding of the statutoryauthorities and the observation of the learned Single Judge inthe impugned judgment regarding Section 9 of the BankingRegulation Act will stand set aside. The Civil Court shallindependently consider the entitlement of the appellants for therelief. The learned counsel for the appellants would submit thatthe appellants were prosecuting their rights before statutoryforums and authorities and hence the said period may be excludedin calculating the period of limitation for filing the suit. It is for the appellants to urge the said plea before the CivilCourt which will necessarily consider it on its merits. Writ appeal is disposed of as above. Sd/- V.Chitambaresh, Judge Sd/- Sathish Ninan, Judge vdv