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Sri Rajan Kattalai Attached to Sri Thyagarajaswami Temple, Thiruvarur by Its Sole and Hereditary Trustee, Sri-la-sri Shanmuga Desiga Gnanasambanda Pandara Sannadhi Avergal, Adheenakarthar, Dharmapuram Adheenam Vs. the Government of Tamil Nadu Represented by Secretary to Co-operative Department and ors. - Court Judgment

LegalCrystal Citation
SubjectTrust and Societies
CourtChennai High Court
Decided On
Reported in(1984)1MLJ61
AppellantSri Rajan Kattalai Attached to Sri Thyagarajaswami Temple, Thiruvarur by Its Sole and Hereditary Tru
RespondentThe Government of Tamil Nadu Represented by Secretary to Co-operative Department and ors.
Cases ReferredPurushotham & Co. v. Vasudevan
Excerpt:
- .....to be set aside.4. mr. b. kumar, learned counsel for the petitioner submits that, petitioner had filed the suit earlier to the order of winding up of the affairs of the society, it being a suit which involves rights of parties to be determined by reference to tamil nadu acts l of 1947 and xxvi of 1963, complicated questions of law and facts arise for consideration. he would state that, in the written statement filed by the society, reliance had been placed on these enactments and therefore, a liquidator functioning under section 85 of the act, would not be in a position to determine those aspects, and therefore, the civil court is the proper adequate forum, which alone could determine the rights of parties.5. he refers to section 446 of the companies act, which also provides for leave.....
Judgment:
ORDER

T. Sathiadev, J.

1. Petitioner by invoking Section 89 of Tamil Nadu Co operative Societies Act, 1961 (Act LIII of 1961), (hereinafter referred to as the Act) sought for leave to proceed further with O.S. No. 71 of 1967 filed by it, in Sub Court, Nagapattinam, against the third respondent Society, for recovery of arrears of rent. It is subsequent to the filing of the said suit, third respondent Society was ordered to be wound up under Section 85 (1). It is thereafter, petitioner on more than one occasion moved the concerned authorities for leave to proceed further with the suit, so that the liquidator may defend the Society under liquidation is the suit.

2. Second respondent, by order, dated 1st September, 1977, rejected the petition, dated 11th November, 1974 on the ground that the suit against the liquidator in a civil Court is not maintainable. On the further petition filed to first respondent, by impugned order, dated 5th November, 1977, it was rejected, without ascribing any reasons.

3. In this writ petition, it is contended that a non-speaking order passed by the first respondent is invalid, and that the second respondent was in error in holding that the suit is not maintainable, and no reason having been given as to why the leave could not be granted, the impugned orders deserve to be set aside.

4. Mr. B. Kumar, learned Counsel for the petitioner submits that, petitioner had filed the suit earlier to the order of winding up of the affairs of the society, it being a suit which involves rights of parties to be determined by reference to Tamil Nadu Acts L of 1947 and XXVI of 1963, complicated questions of law and facts arise for consideration. He would state that, in the written statement filed by the society, reliance had been placed on these enactments and therefore, a liquidator functioning under Section 85 of the Act, would not be in a position to determine those aspects, and therefore, the Civil Court is the proper adequate forum, which alone could determine the rights of parties.

5. He refers to Section 446 of the Companies Act, which also provides for leave to be granted by Court in a matter wherein the affairs of the company had been ordered to be wound up. In dealing with powers exercisable under Sections 169 and 232 of Indian Companies Act, 1913, this Court in Purushotham & Co. v. Vasudevan : AIR1955Mad449 , which contained similar provisions as found in Section 446 of Indian Companies Act, 1956, held that, whenever questions at issue are such that they cannot be conveniently gone into in the winding up proceedings, leave would generally have to be granted. Similar is the position in T. N. Act LXIII of 1961 also.

6. When respondents 1 and 2 have not given any reasons, it only shows that they have never applied their mind to find out the nature of defence taken by the society in O.S.No. 71 of 1967. When such complicated questions are involved, the only course that could be adopted is to grant the leave, and it is only for such a purpose, Section 80 of the Act confers powers on the Registrar to grant leave on such terms as he may impose. An order passed, while exercising such powers will have necessarily to disclose the reasons In their absence, it has to be construed, that relevant grounde have not been taken into account particularly in matters of this nature where it is quite obvious that if only what have been referred to above had been considered by respondents 1 and 2, leave would have been granted.

7. Quite strangely, in the counter-affidavit it is claimed that there is no mandatory provision in the Act to disclose reasons and to give opportunity by way of being heard, while passing orders under Section 89 of the Act. Whenever statutory power is exercised, to grant or reject a particular relief contemplated therein, it has been repeatedly! held by the Supreme Court and this Court,' that such orders, which affect rights of parties, should disclose reasons which prevailed on the authorities in passing the order. It is strange that even in 1982, no authority should come forward to swear to a counter-affidavit that an order passed under Section 89, which is a statutory power exercised by the Registrar of Co-operative Societies, need not disclose reasons. It is for taking such a stand, costs are awarded in this petition.

8. When the only ground relied upon by the Deputy Registrar was, that the suit is not maintainable, having thus been made out to be an erroneous ground, in that when Section 89 itself contemplates leave to be granted, the decision taken by him as if the suit itself is not maintainable only shows that he had not taken into account the provision made in Section 89 of the Act. As for the first respondent, the order having not been rested on any valid ground, for the reasons above stated the said order is set aside.

9. When petitioner has made out a valid ground for the suit to be proceeded with, in the presence of the Liquidator appointed under the Act, the writ petition is allowed, with a direction to the second respondent to grant leave under Section 89 of the Act. Hence, this writ petition is allowed with costs. Advocate's fee Rs. 250.


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