Varkey Vs. Paily Issac - Court Judgment

Cyriac Joseph, J.

1. The appellant is the petitioner in O.P. No. 35551/2002 which was disposed of by the learned Single Judge on 11.12.2002 as per the impugned judgment.

2. The appellant was a candidate in the election held to the Board of Directors of the Kothamangalam Service Co-operative Bank on 26.12.1999. He was defeated in the election. He raised an election dispute under Section 69 of the Kerala Co-operative Societies Act (for short 'the Act'). The said dispute was registered as A.R.C. No. 226/2002. As per the award in A.R.C. No. 226/2002, the election was set aside. The elected members of the Board of Directors filed an appeal before the Kerala Co-operative Tribunal as A.P. No. 76/2002. Along with the appeal, the appellants filed LA. Nos. 415/2002 and 419/2002. LA. No. 415/2002 was for stay of the award and LA. No. 419/2002 was for reinstatement of the appellants as members of the Board of Directors, since an Administrator had already assumed charge pursuant to the setting aside of the election by the Arbitrator. The said interim applications were allowed by the Tribunal on 6.11.2002. Challenging the said order dated 6.11.2002 of the Tribunal, the appellant filed O.P. No. 35551/2002 which was disposed of by the learned Single Judge as per the impugned judgment.

3. The main contention raised in the Original Petition was that the appeal filed by the elected members before the Tribunal was not maintainable since it did not conform to the provisions of Rule 98(1) of the Kerala Co-operative Societies Rules (for short 'the Rules'). Though the same contention had been raised before the Tribunal, the Tribunal had rejected the contention. In the impugned judgment the learned Single Judge has held that if it is only a matter of submitting the appeal in a form other than the prescribed form, it is only a defect that could be corrected and that if the appeal is otherwise maintainable, it cannot be rejected for the reason that it is not filed in the prescribed form. It has been further observed by the learned Single Judge that if the material details required to be furnished in the prescribed form are not available in the memorandum of appeal, the appellant shall submit such details and will cure the defect in the appeal or otherwise the Tribunal is free to allow the appellant to file the appeal in the prescribed form and to treat such an appeal as one filed in the place of the original one filed defective. The learned Single Judge has prima facie found that the appeal is maintainable. Aggrieved by the judgment of the learned Single Judge, this appeal has been filed by the petitioner in the Original Petition.

4. Mr. George Poonthottam, learned counsel for the appellant raised only one contention before us. According to the learned counsel, Rule 98(1) of the Rules provides that every appeal memorandum submitted to the Tribunal under Sub-section (1) of Section 82 of the Act shall be in Form No. 15 of Appendix II of the Rules and it shall be verified in the manner specified therein. As per Form No. 15, the appeal memorandum has to be verified by the appellant or his authorised representative. However, the appeal filed by respondents 1 to 10 before the Tribunal was not signed by the appellants and there was no verification by the appellants or their authorised representative. The verification was only by the advocate of the appellants. As per Rule 99(3) of the Rules, no appeal or application shall be accepted by the Secretary of the Tribunal unless it conforms to the provisions of Sub-rule (2) of Rule 99 and to the provisions in Rule 98 of the Rules. It is contended that since the appeal filed by respondents 1 to 10 did not conform to the provisions of Rule 98 of the Rules, the Secretary of the Tribunal ought not to have accepted the appeal and the Tribunal ought to have held that the appeal is not maintainable.

5. According to the learned counsel for respondents 1 to 10, as per Form No. 15, the verification can be made by the appellants or their authorised representative and the advocate of the appellants is their authorised representative. Since the appeal filed by respondents 1 to 10 was verified by their advocate, the appeal conformed to the provisions in Rule 98 of the Rules and therefore the Secretary was right in accepting the appeal and the Tribunal was right in holding that the appeal was maintainable. Mr. Monaye further contended that even if the verification had to be made by the appellants themselves or their authorised representative and not their advocate, the failure to do so was only a defect which could be cured and in that event, the appellants were entitled to a notice under Rule 100(3) of the Rules calling upon them to cure the defect within a reasonable period.

6. Rule 98(1)(a) of the Rules reads thus:

'98(1)(a) : Every appeal Memorandum to the Tribunal under Sub-section (1) of Section 82 shall be in Form No. 15 of Appendix II of these rules and be verified in the manner specified therein.'

Form No. 15 prescribed under Rule 98(1) is extracted hereunder:

Before the Kerala Co-operativeTribunal,Trivandrum No. ........of.............19 (Name and Surname) Appellants)versus

(Name and Surname) Respondent(s)1. Authority passing the original order in dispute showing the No. and date of order :2. Date of communication of the order nowappealed against :3. Address to which notice may be sent tothe appellant :4. Address to which notice may be sent tothe respondent :5. (a) In the case of monetary disputethe amount involved :(b) In the case of non-monetary disputes;specify whether it is election disputeor other disputes :(c) Any other relief claimed 6. Grounds of appeal (Sd/-)(Appellant(s)/Authorised Representatives.Verification I/We......... the appellant(s) do hereby declare that what is stated above is true to the best of my/our knowledge and belief. Verified today the.......day of.........19 (Sd/-)(Appellant(s)/Authorised Representatives.Rule 99 of the Rules reads thus:'99. Presentation of appeals and application:- (1) Every appeal or application shall be presented in person by the applicant as the case may be or by his Pleader or duly authorised agent to the Secretary during office hours at the Headquarters, or to the Tribunal at any sitting place outside the Headquarters or shall be sent by registered post to the Headquarters in the name of the Secretary to the Co-operative Tribunal, Trivandrum. A memorandum of appeal or application or other documents sent by registered post shall be deemed to have been presented before the Tribunal on the day on which it is received at the Headquarters of the Tribunal. (2) Where an appeal or application is signed and presented by an agent or Pleader it shall be accompanied by a letter of authority or Vakalath, appointing him as such and duly signed by the appellant or the applicant, as the case may be.

(3) ko appeal or application shall be accepted by the Secretary, unless it conforms to the provisions of Sub-rule(2) and of the provisions in Rule 98.'

7. From the statutory provisions quoted above, it is clear that an appeal memorandum submitted to the Kerala Co-operative Tribunal under Sub-section(1) of Section 82 shall be in Form No. 15 appended to the Kerala Co-operative Societies Rules and as per the said Form No. 15, there shall be a verification by the appellant or his authorised representative to the effect that what is stated in the appeal memorandum is true to the best of his knowledge and belief. Admittedly, respondents 1 to 10 herein had not signed or verified the appeal memorandum in A.P. No. 76/2002. The appeal was signed and verified only by the advocate of the appellants. Admittedly, the advocate had filed vakalath along with the appeal.

8. The first question to be considered is whether it was sufficient that the appeal memorandum was signed and verified by the advocate to make it conform to the statutory provisions. The contention of the learned counsel for the appellant is that by the verification in the appeal memorandum the appellant takes responsibility for what is stated in the appeal memorandum and therefore the verification has to be made by the appellant or by a duly authorised representative. It is contended that the expression 'authorised representative' in the given context will not include a pleader or an advocate. In this connection, learned counsel pointed out that in the rules a distinction is drawn between an agent of the appellant and a pleader appearing on behalf of the appellant. He specifically invited our attention to Rule 99(2) of the Rules which says that where an appeal or application is signed and presented by an agent of pleader, it shall be accompanied by a letter of authority or Vakalath appointing him as such an duly signed by the appellant or the applicant as the case may be. However, according to the learned counsel for respondents 1 to 10, the expression 'authorised representative' will include both an agent and a pleader and hence the appeal memorandum signed and verified by an advocate conforms to the statutory provisions and it is not mandatory that the appellant himself should sign and verify the appeal memorandum. Having considered the rival contentions of the learned counsel appearing for the parties and having regard to the statutory provisions, we are inclined to hold that the verification required in the appeal memorandum should be made either by the appellant or by his authorised representative and not by his advocate or pleader. If a pleader or advocate is competent to sign and verify the appeal memorandum, it could have been so provided in Form No. 15. Nothing prevented the rule making authority from providing: 'appellant(s)/ authorised representative/pleader'. Having not done so by the rule making authority, it is only reasonable to assume that the verification required under Form No. 15 has to be made either by the appellant or by his authorised representative. We are inclined to take this view particularly in view of the distinction drawn in the rules between an agent and a pleader. It is true that under Order 41 Rule 1 of the C.P.C.the appeal memorandum can be signed by the appellant or his pleader. But in the appeal memorandum contemplated under the provisions of the C.P.C. there is no verification by the appellant. Since the appeal memorandum contemplated under the provisions of Section 82 of the Act read with Rule 98 of the Rules provides for verification of the contents of the appeal memorandum, exclusion of pleader/advocate from the form of verification in Form No. 15, is significant and has to be taken into account. The rule making authority might have thought that an advocate or apleader should not be made responsible for the particulars stated in the appeal memorandum. It cannot be said to be an irrelevant or invalid consideration. Hence, we hold that the appeal filed by respondents 1 to 10 before the Co-operative Tribunal was defective since it was not signed and verified by the appellants or their authorised representative.

9. The next question to be considered is whether respondents 1 to 10 should be given an opportunity to cure the said defect in the appeal memorandum at this stage. As per Rule 100(1)(c) of the Rules, on receipt of any appeal or application, the Secretary shall endorse on it the date of its receipt and the Secretary shall, as soon as possible, examine whether it conforms to the provisions of the Act and the Rules. As per Sub-rule (3) of Rule 100 of the rules, if the Secretary finds that the appeal or application presented to him does not conform to any of the provisions of the Act and the Rules, he shall make a note on the appeal or application to that effect and call upon the party concerned or his agent or pleader by a notice in Form No. 19 of Appendix II to cure the defects within a reasonable period to be specified by him. Merely because the Secretary wrongly assumed that the appeal was not defective, the appellants before the Tribunal cannot be denied the opportunity under Rule 100(3) of the Rules to cure the defect. In this case, admittedly the appeal was filed within time. The appeal memorandum was signed and verified by the advocate of the appellants. The appeal memorandum was accompanied by the Vakalath of the advocate. The only omission was that the appellants did not sign and verify the appeal memorandum. We are of the view that the above defect is one which should be allowed to be cured under Rule 100(3) of the Rules. Now that this court has held that the appeal was defective, it is only just and reasonable that the appellants before the Tribunal are given an opportunity to cure the defect under Rule 100(3) of the Rules.

10. Since Ext.P8 order was passed by the Tribunal before the appellants cured the defect and since the appeal continues to be defective, the said order is liable to be set aside and both the I.As. should be considered afresh by the Tribunal if and when the defect is cured.

11. Hence the Writ Appeal is disposed of with the following orders/directions :-

(a) Ext.PS order of the Tribunal is quashed.

(b) The Tribunal shall treat the appeal (A.P. No. 76 of 2002) as defective and give an opportunity to the appellants to cure the defect under Rule 100(3) of the Rules and thereafter proceed with the appeal in accordance with law.

(c) Since the elected Board of Directors is stated to have taken charge from the Administrator pursuant to Ext.P8 order, the status quo as on today will continue till the Tribunal considers and passes fresh orders on the interlocutory applications (I.A. Nos. 415 of 2002 and 419 of 2002) of the appellants.

(d) The Tribunal shall dispose of the appeal as expeditiously as possible and at any rate within a period of three months from the date of receipt of a copy of this judgment.

(e) If the appellants before the Tribunal fail to cure the defect within the time granted by the Tribunal under Rule 100(3), the appeal will stand rejected and the appellants shall cease to hold office with effect from the date on which the time granted by the Tribunal expires.

(f) The impugned judgment of the learned Single Judge will stand modified to the above extent.