2022 (1) TMI 1494 - HC - Indian Laws

Article 227 petition treated as Article 226; co-operative society's challenge dismissed, depositor identity upheld, arbitrator's award revived

The Mattancherry Sc/St Co-Operative Society Ltd, The Secretary, The Mattancherry Sc/St Co-Operative Ltd. Versus A.P. Thomas @ Tomy Peter And (Vice-Versa)

Petition filed under Article 227 was treated as one under Article 226 by the HC and the Co-operative Society's challenge was held not maintainable. The HC ... Maintainability of petition filed under Article 227 of the Constitution of India - Deposit mad ein two different names - whether A.P. Thomas alias Tomy Peter are one and same person - HELD THAT:- It is settled in law that misquoting or non-quoting of provision of law is not a ground to dismiss an application or a legal proceeding, if the petition is otherwise maintainable in the eye of law, the same shall be entertained, treating the same, as one filed under the relevant provision. In view of the above settled law, it is inclined to treat this petition as one filed under Article 226 of the Constitution of India and, accordingly, this challenge at the instance of the Cooperative Society is not found maintainable. In view of Ext.P8 certificate produced in O.P.(C) No.1831/2021, the identity of A.P.Thomas alias Tomy Peter is fully established. That apart, there is no reason to discard Ext.P8 in the context of events that no other person claiming himself as Tomy Peter, so far not made any claim in respect of the Fixed Deposits, which were effected much earlier. The order in Revision Petition passed by the Cooperative Tribunal is illegal and, therefore O.P.No.1831/2021 is allowed and the said order is set aside. Consequently, it is held that the Award passed by the Arbitrator shall revive for executing the same - Registry shall forward a copy of this judgment to the Secretary, Co-operative Department, Secretariat, Thiruvananthapuram for compliance and report within a period of two months. ISSUES PRESENTED AND CONSIDERED 1. Whether a petition challenging an order of the Co-operative Tribunal is maintainable under Article 227 of the Constitution, or must be treated as one under Article 226. 2. Whether deposits made in two different names-A.P. Thomas and Tomy Peter-refer to the same person such that awards/claims in favour of one name can be executed for the other. 3. Whether the Co-operative Tribunal correctly set aside an arbitrator's award and remanded the matter solely to determine identity of the depositor for specific fixed deposit receipts. 4. Whether an award/decision under the Co-operative Societies Act is executable as a decree of a civil court under the statutory execution mechanism (Section 76) or otherwise, and whether execution jurisdiction lies with civil court or Registrar as provided by the Act. 5. Whether administrative action is warranted against a cooperative society that admits inability to repay fixed deposits and fails to make payments despite orders. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Maintainability: Article 227 vs. Article 226 Legal framework: Constitutional remedies under Articles 226 and 227; principle that orders of certain specialized tribunals may not attract supervisory jurisdiction under Article 227 where the judicial officer acts as persona designata. Precedent Treatment: The Court considered an earlier decision holding that where a judicial officer exercises powers as a tribunal member as persona designata, the order is not a civil court order amenable to Article 227, and that such decisions are challengeable under Article 226. Interpretation and reasoning: The Court accepted the settled position that mis-labeling the constitutional provision (filing under Article 227 instead of Article 226) is not fatal where the petition is otherwise maintainable; misquoting or non-quoting of the provision does not require dismissal and the petition may be treated as filed under the appropriate provision. Ratio vs. Obiter: Ratio - petitions challenging tribunal orders where the tribunal is akin to an appellate/ specialized forum should properly proceed under Article 226; mis-statement of the Article may be cured by treating the petition under the correct Article. Conclusion: The petition was treated as one under Article 226; the objection of non-maintainability under Article 227 was rejected. Issue 2 - Identity of depositor: A.P. Thomas alias Tomy Peter Legal framework: Determination of identity for entitlement to fixed deposit refunds; evidentiary approach to alias/identity disputes. Precedent Treatment: No departure from established evidentiary principles; the Court applied ordinary proof of identity by official certificate and absence of competing claimants. Interpretation and reasoning: The petitioner produced a Village Officer certificate stating both names refer to the same person. The society conceded no other person claiming the alternate name had sought payment. Given the official certificate and lack of evidence of any other claimant, the Court found the identity established. The Tribunal's remand to determine identity was unnecessary in light of that evidence. Ratio vs. Obiter: Ratio - where (a) an authoritative local certificate identifies two names as the same person, and (b) no competing claimant has come forward, the identity is established for purposes of claim/award execution; remand merely to determine identity is unwarranted. Conclusion: The Court held the two names refer to the same person and that challenge to the award on that ground was unsustainable. Issue 3 - Validity of Tribunal's remand and setting aside of Arbitrator's Award Legal framework: Judicial review of tribunal decisions; scope to set aside arbitral awards and remit issues for further consideration. Precedent Treatment: The Court applied statutory and common law principles governing when tribunals may set aside or remit awards; emphasized addressing the real issue rather than peripheral technicalities. Interpretation and reasoning: The Tribunal set aside the Award and remanded specifically on identity for certain receipt numbers. The Court found this to be an incorrect approach because identity was already sufficiently established by certificate and conduct (no other claimant). Therefore, the Tribunal's order was illegal in that it failed to address the substantive correctness of the Arbitrator's determination and unnecessarily remitted a matter already proved. Ratio vs. Obiter: Ratio - a tribunal should not set aside an award and remand on an issue already established by reliable evidence; such remand may be illegal and the underlying award should revive if improperly displaced. Conclusion: The Tribunal's order setting aside the arbitrator's award was held illegal; the arbitrator's award was revived for execution. Issue 4 - Executability of Award under statutory execution provisions (Section 76) Legal framework: Provision making certain orders/awards under the Co-operative Societies Act executable as decrees of a civil court (certificate of Registrar) or recoverable as public revenue arrears, and allowing execution by Registrar or subordinate. Precedent Treatment: The Court relied on settled law that an award under the Act shall be deemed a decree of a civil court and executed in the same manner as such a decree; referenced prior authority supporting that construction. Interpretation and reasoning: The Court observed Section 76 expressly provides mechanisms for execution (civil decree route, revenue recovery, or execution by Registrar). Given settled authority, there was no need for extended discussion. The challenge asserting lack of jurisdiction of the civil court to execute the award under Section 76 was held to be without merit. Ratio vs. Obiter: Ratio - awards/decisions under the Co-operative Societies Act are capable of execution as decrees of a civil court under Section 76 and are enforceable by the methods provided therein. Conclusion: The challenge to execution jurisdiction was dismissed; the award is executable per the statutory scheme. Issue 5 - Administrative oversight and remedial direction regarding society's functioning and non-payment Legal framework: Statutory regulatory responsibility of the Co-operative Department over societies and its role where societies default on depositor obligations. Precedent Treatment: The Court invoked administrative supervision principles and the need for departmental assessment where societies repeatedly fail depositors. Interpretation and reasoning: The society repeatedly asserted inability to repay and proposed installment repayments but made no payments despite orders. The Court noted the pattern of using identical excuses and declined to tolerate continued prejudice to depositors. It directed the Co-operative Department to assess the society's liabilities and viability and to decide whether it should be permitted to continue functioning. Ratio vs. Obiter: Primarily administrative direction (operative); while not a law-making ratio, it is a binding procedural direction to the appropriate authority in the facts of the case. Conclusion: The Court directed the Secretary, Co-operative Department to assess the society's functioning and dues and report compliance within two months; registry to forward judgment to the Department for action.