1. This intra-court appeal is directed against the judgment dated 24.11.2017 in W.P(C) No.29293 of 2017. The questions to be answered are whether existence of an alternative remedy should always be a bar for entertaining a writ petition under Article 226 of the Constitution of India and whether the appellate power under Section 5 of the Kerala High Court Act,1958 should be exercised to interfere with judgment of a Single Bench passed in such a writ petition ignoring the availability of alternative remedy merely on that solitary reason? These certain allied important questions crop up for consideration in the following factual matrix:-
The Gandhigram Agro Based Industrial Co-operative Society Ltd.No.5-1ND(K) 191 [hereinafter called the appellant] viz.,the first respondent in the writ petition received fixed deposit to the tune of Rs. 56,00,000/- from the writ petitioner- Co-operative Bank, viz., the first respondent herein. The factum of receipt of the aforesaid amount as fixed deposit is not disputed by the appellant and in fact, it is evident from Exts.P2 to P4. Receipt of money in fixed term deposit repayable on demand and offering interest thereon, is essentially a banking business. Offering of interest thereon as also the duty coupled with liability to repay the said amount, either on maturity or demand, are also not in dispute. The fact is that even after the maturity of the fixed deposit and despite repeated requests, the appellant did not repay the fixed deposit and that constrained the first respondent herein to file the above mentioned writ petition under Article 226 of the Constitution of India. The learned Single Judge, after hearing both sides, passed the impugned judgment, whereby and whereunder a direction was issued to the appellant-society to pay the amount due under the matured fixed deposit receipt to the first respondent-petitioner within the period of fixed deposit. The appellant-Bank (the first respondent therein) is aggrieved by the same.
2. We have heard the learned counsel for the appellant, the learned counsel appearing for the first respondent and also the learned Government Pleader.
3. As already noticed, a bare perusal of the pleadings of the appellant in the counter affidavit filed in the writ petition and also in the writ appeal would reveal that the factum of receipt of fixed deposit of Rs. 56,00,000/- and offering interest thereon as also the liability to repay the amount on demand are not at all in dispute. In fact, they are indisputable in view of Exts. P2 to P4 Term Deposit Receipts. At the same time, evidently, they raised the contention as to the maintainability of the writ petition before the learned Single Judge on the ground of existence of alternative efficacious remedy under the Co-operative Societies Act itself. It is to be noted that both the appellant as also the first respondent herein are registered under the Kerala Co-operative Societies Act.
4. The learned counsel for the appellant contended that in view of the existence of alternative efficacious remedy, the learned Single Judge ought not to have entertained the writ petition and ought to have relegated the party to avail the remedy under the Cooperative Societies Act. It is pertinent to note that it is not the case of the appellant that this court lacks jurisdiction whereas the contention is that in view of the existence of alternative efficacious remedy, the writ petition ought not to have been entertained. Despite the said contention, the learned Single Judge exercised the discretion and entertained the writ petition and disposed it on the aforesaid lines. To buttress the contention that the writ petition ought to have been dismissed on the aforesaid ground and in such circumstances, the impugned judgment is liable to be interfered, the learned counsel for the appellant relied on the decision in Authorised Officer, State Bank of Travancore and Another v. Mathew.K.C. [2018 (1) KHC 786 (SC)] and Division Bench decisions of this Court in Managing Director, Kerala State Cooperative Rubber Marketing Federation v. Kallumala Agricultural Co-operative Bank Ltd. and others [2018(2) KHC 187 (DB)] and Meenachil Rubber Marketing and Processing Coop. Society Ltd.No.K.118 and another v. Choondachery Service Coop. Bank Ltd.No.167 and another [2018(2)KHC 180(DB)]. Per contra, the learned counsel for the first respondent submitted that such contentions of the appellant are ill-merited and intended only to delay repayment. That apart, it is contended that taking into account the absence of any dispute regarding the receipt of fixed term deposits for the aforesaid amount, issuance of Exts.P2 to P4 Term Deposit Receipts therefor, the liability to repay the amount along with interest on demand also the factum of demand for repayment by the first respondent after maturity, there can be no dispute to be resolved under Section 69 of Co-operative Societies Act.
5. We will firstly consider the tenability of the contentions raised by the appellant on the question of the maintainability of the writ petition, relying on various decisions. In Mathew's case (supra), the Apex Court held thus:-
“............................... The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well defined exceptions as observed in Commissioner of Income Tax and Others v. Chhabil Dass Agarwal, as follows:-
“15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the Statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.”
It is thus obvious that the Apex Court had not laid down a position in law that a writ petition under Article 226 of the Constitution ought not to be entertained at any circumstance if alternative remedy is available, in Mathew's case(supra). In fact, the Apex Court held therein that the discretionary jurisdiction under Article 226 should be exercised judiciously in the given facts of a case. In the decision in Choondachery Service Co-op.Bank's case (supra), relied on by the appellant, this court in paragraph 23 held as follows:-
“23. The decisions referred to above show that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory remedies available to the aggrieved person. The discretionary jurisdiction under Article 226 of the Constitution is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. If alternative statutory remedies are available, a writ petition under Article 226 of the Constitution shall not be entertained. This is the normal rule. But, there are exceptions to this rule. Where the statutory authority has not acted in accordance with the provisions of the enactment in question, the writ jurisdiction of the Court shall be exercised. Where the statutory authority acts in defiance of the fundamental principles of judicial procedure or when it acts in total violation of the principles of natural justice, the High Court will entertain a petition under Article 226 of the Constitution. Where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, then also the High Court would be justified in invoking the writ jurisdiction. The rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion.”
In Kallumala Agricultural Co-operative Bank's case (supra), relying on the decision of the Honourable Apex Court in United Bank of India v. Satyawati Tondon and others [AIR 2010 SC 3413], this Court held that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion. Evidently in the said decision, an earlier decision of the Honourable Apex Court in Thansingh Nathmal v. Superintendent of Taxes, Dhubri and others [AIR 1964 SC 1419] was also referred to. In that case, the Honourable Apex Court was dealing with the jurisdiction of the High Court under Article 226 of the Constitution of India. Evidently, it was held therein that when there is an alternative efficacious remedy, normally the High Courts would not entertain a writ petition. On going through the decisions referred (supra), we could not find any absolute bar or interdiction for entertaining a writ petition under Article 226 of the Constitution of India, though normally the High Court should be loath to entertain a writ petition, when there is an alternative efficacious remedy.
6. With regard to the power of the High Courts under Article 226 of the Constitution of India, the Apex Court in the decision reported in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Samarak Trust and others v. V.R.Rudani and others [(1989)2 SCC 691] held that the restriction that the writ petition could be maintained only for enforcement of fundamental rights would apply only for a motion under Article 32 of the Constitution of India and as far as High Courts are concerned, they could issue writs to enforce other legal rights against persons, amenable to its writ jurisdiction. The Apex Court held that 'any person or authority' performing public duty and owing positive obligation to the affected party is amenable to the writ jurisdiction under Article 226 of the Constitution and therefore, a mandamus could be issued to compel that person or authority to discharge that obligation. In short, it is not the position of law that High Courts shall not entertain a writ petition under Article 226 of the Constitution of India under any circumstance when an alternative efficacious remedy exists. Evidently, the position settled is that the rule of exhaustion of alternative remedy is only a rule of discretion and it is not one of compulsion. In this context, the decision reported in Whirl Pool Corporation v. Registrar of Trade Marks, Mumbai and others (AIR 1999 SC 22) also assumes relevance. The Apex Court held therein that even the existence of an alternative remedy of appeal would not affect the jurisdiction of the High Court to consider a writ petition. In W.A.No.1597/2009 dated 23.7.2009 that arose from the judgment in W.P(C) No.5333/2009, a Division Bench of this Court, in which one among us [Justice C.T.Ravikumar] was a party considered a similar situation and held that Co-operative Societies receiving fixed deposits are bound to repay the same on demand and repayment of the amount deposited, on its maturity, is a public duty, in such circumstances. If there is failure to discharge that duty this Court under Article 226 of the Constitution can ask the society to perform that duty, it was held. The question whether the repayment of fixed deposit received promising interest by a Co-operative Society or a Co-operative Bank is a public duty or not, was not at all considered in the decision in Kallumala Agricultural Co-operative Bank's case (supra) and also in the decision in Choondachery Service Co-operative Bank's case (supra), relied on by the appellant. At the same time, as noticed hereinbefore, in the decision in Kallumala Agricultural Cooperative Bank's case(supra), this Court only held that when alternative efficacious remedy is available normally the writ petition would not be maintained. A scanning of the decision in Choondachery Service Co-operative Bank's case (supra) would reveal that the Division Bench held therein that the said position is not an inviolable position and there are exceptions to it and in fact, the Division Bench had also elucidated it. Certainly, when there is defiance of a public duty, it cannot be said that a writ petition is not maintainable. Therefore, we will, now consider the question whether public duty is involved in banking service or banking business.
7. In P.V.Narasimha Rao v. State (AIR 1998 SC 2120), the Apex Court considered the question what is public duty and held that the expression 'public duty' meant a duty in discharge of which the State, the public or the community at large has an interest. In Sri Venkataramana Devaru v. State of Mysore and others (AIR 1958 SC 255), the Apex Court held that the term 'public' includes, in its ordinary acceptation, any section of the public. In the decision in Rustom Cavasjee Cooper. v. Union of India [AIR 1970 SC 564], the Apex Court observed as follows:-
“33. The expression “banking” is not defined in any Indian statute except the Banking Regulation Act,1949. It may be recalled that by Section 5(b) of that Act “banking” means “the accepting for the purpose of lending or investment of deposits of money from the public repayable on demand or otherwise and withdrawable by cheque, draft or otherwise.” The definition did not include other commercial activities which a banking institution may engage in.”
Going by Section 5(b) of the Banking Regulation Act, 'banking' means (b) "banking" means the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawal by cheque, draft, order or otherwise. True that as per Section 3 of the said Act, it is applicable to co-operative societies only in certain cases. It reads thus:-
“3. Act to apply to co-operative societies in certain cases.-
Nothing in this Act shall apply to.-
(a) a primary agricultural credit society;
(b) a co-operative land mortgage bank; and
(c) any other co-operative society, except in the manner and to the extent specified in Part V.”
Section 22 of the Banking Regulation Act deals with licensing of banking companies. Sub-section (1) therein reads thus:-
“(1) Save as hereinafter PROVIDED, no company shall carry on banking business in India unless it holds a licence issued in that behalf by the Reserve Bank and any such licence may be issued subject of such conditions as the Reserve Bank may think fit to impose.”
Sub-section 3(a) reads thus:-
“(3) Before granting any licence under this section, the Reserve Banking may require to be satisfied by an inspection of the books of the company or otherwise that the following conditions are fulfilled, namely:- (a) that the company is or will be in a position to pay its present or future depositors in full as their claims accrue;”
Sub-section 3(a) itself would indicate the duty and liability of a banking company to pay its depositors in full on their claims accrue. Part V of the Banking Regulation Act deals with application of the said Act to Co-operative Banks. It says that the provisions of the said Act, as in force for the time being, shall apply to, or in relation to banking companies subject to the modifications specified thereunder. In fact, Part V was inserted to the Banking Regulation Act pursuant to the enactment of the Banking Laws (Application to Co-operative Societies) Act,1965 (Act 23 of 1965) which is an Act further amend the Reserve Bank of India Act,1934 and the Banking Companies Act,1949 for the purpose of regulating the banking business of certain co-operative societies and matters connected therewith. In this context, it is to be noted that the Banking Companies Bill received its assent on 10.3.1949 as the Banking Companies Act,1949 (Act 10 of 1949) and it is as per Section 11 of the Banking Laws (Application to Co-operative Societies) Act,1965 (Act 23 of 1965) that the nomenclature of Banking Companies Act,1949 was changed with effect from 1st March,1966. Going by Part V of the Banking Regulation Act every co-operative society shall before commencing banking business in India, apply in writing to the Reserve Bank for a licence under Section 22 of the Banking Regulation Act. In the decision in Bokaro Steel Employees Cooperative House Construction Society Limited v. State of Jharkhand and Ors. [AIR 2009 JHARKHAND 39], the High Court of Jharkhand held, as held by Division Bench of this Court in W.A.No.1597/2009, that the deposits accepted from public are repayable on demand or after the expiry of the specified period. Even though a Co-operative Society carrying banking business would not fall within the meaning of banking company as held by the Apex Court, in Greater Bombay Co-op.Bank Ltd. and others. v. United Yarn Tex (P) Ltd. and others [(2007)6 SCC 236], the nature of the activity undertaken by the appellant in this case viz., acceptance of fixed deposit on assurance of interest thereon, would undoubtedly go to show that what had been undertaken was nothing, but a banking business. Activities of institutions accepting deposits from public on assurance to repay it on demand or on maturity along with interest therefor, can be regarded only as an essential form of banking. The mere fact that the appellant had not obtained a licence before commencing banking business under Section 22 of the Banking Regulation Act, cannot be a licence to the appellant-society to do banking business in derogation of the provisions under the Banking Regulation Act and to refuse to give back the fixed deposit, on assurance of interest, after the expiry of the term of the deposit despite the demand for returning the matured amount. As stated earlier, acceptance of deposits from public on assurance to repay it on demand or maturity amounts to banking business and a coW. operative society doing such business cannot be heard to contend that it will not pay its deposit in full even on his claims accrued.
8. In our country, the organised money market institutions include not only Commercial Banks but also Co-operative Banks. In All India Bank Officers' Confederation etc. v. Union of India and others [AIR 1989 SC 2045], the Apex Court held the object of the Banking Companies (Acquisition and Transfer of Undertakings) Act was to nationalise the bank to render the largest good to the largest number of people. In Tara Chand Vyas v. Chairman and Disciplinary Authority and others [(1997) 4 SCC 565, the Apex Court held as follows:-
“....... The nationalised banks, therefore, are the prime sources and pillars for establishment of socio-economic justice for the weaker sections. .......”
The co-operative structure in India comprises State Co-operative Bank at the State level, District Co-operative Bank at the District level and Primary Co-operative Banks usually in the village. Even though they are not falling within the meaning of a banking company, while carrying on banking business, they are virtually functioning as sources and pillars for establishment of the socioeconomic justice. In other words, in such circumstances, even when the commercial banks under similar circumstances are bound to repay the money received as fixed deposit on demand or on maturity, the Co-operative Societies doing banking business cannot be heard to contend that they are not liable to repay the amount deposited on demand or on maturity. The simple reason that it did not obtain licence in terms of the provisions under Section 22 of the Banking Regulation Act cannot be a licence for such a society to do banking business in derogation of the provisions of the Banking Regulation Act. It is to be noted that engaging in such business without being licenced therefor, itself is illegal and such illegality can never be a shield for its further illegal activities in doing the said business.
9. In the case on hand, it is evident that taking into account Ext.P1, the respondent-Co-operative Bank deposited Rs. 56,00,000/- with the appellant. The said fact as also the fact that the appellant offered interest for the said fixed deposit are evident from Exts.P2 to P4. In other words, Exts.P2 to P4 would reveal that appellant acknowledged the receipt of fixed deposit with assurance to give interest therefor. It is to be noted the factum of issuance of Exts.P2 to P4 on receipt of fixed deposits for an amount of Rs. 56,00,000/- is not at all disputed by the appellant. In such circumstances, whether they could withhold payment of money deposited after the expiry of the term of the fixed deposit even after demand for repayment?
10. As stated earlier, the appellant did not have a case that it is not liable to repay the amount deposited by the first respondent. When the appellant admits that receipt of Rs.56,00,000/- from the respondent, it creates a duty coupled with obligation on it to repay the same along with assured rate of interest. The appellant cannot disown that duty and obligation. As noticed hereinbefore, their main contention is that the writ petition was not maintainable owing to the existence of alternative efficacious remedy and therefore, the learned Single Judge ought not to have entertained the writ petition. In the contextual situation, it is also relevant to refer to the decision of the Hon'ble Apex Court reported in Godavari Sugar Mills Ltd. v. State of Maharashtra [(2011)2 SCC 439] wherein it was held that writ for refund of money and consequential relief or for striking down an illegal/unjust order of refund is maintainable. As noticed hereinbefore, in the judgment in W.A.No.1597 of 2009, the question whether repayment is a public duty, was considered by this Court. It was held therein that the duty of the appellant therein to repay the amount deposited, on its maturity, is a public duty and further held thus:-
“If there is failure on the part of the appellant to discharge that duty, we feel that this Court under Article 226 of the Constitution, can ask the appellant to perform that duty. Now it is fairly settled that a private person discharging a public duty is amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. The above principle of administrative law has been developed by English Courts in R. v. Panel on TakeW. overs [(1987) 1 All ER 564] and R. v. Criminal Injuries Compensation Board [(1967) 2 All ER 770]. We notice that the above decision have been quoted and followed by the Apex Court in Unnikrishnan v. State of A.P.[(1993) 1 SCC 645]. So, the nature of the person or the authority is not relevant, but the nature of the duty is important. Since the duty of the appellant to repay the amount deposited with it, on demand, is a public duty, we are sure, the learned Single Judge was fully justified in issuing the direction.”
11. The fact is that even after about two years since demand for repayment on maturity, the amount deposited by the first respondent-Bank to the tune of Rs. 56,00,000/- along with interest offered, was not repaid and in fact, that constrained the respondent to file the aforesaid writ petition. In this contextual situation, it is also appropriate and relevant to note the exact circumstance that persuaded the first respondent-bank to make fixed deposits with the appellant-Society. Evidently, it is Ext.P1 communication. Under Ext.P1, the Primary Co-operative Societies were permitted to invest or deposit its funds in the share or securities in the appellant-society doing banking business. In this context, it is only apt to refer to the following recital in Ext.P1.
“According to section 57(c) of the KCS Act, Cooperative Societies can invest in the share or securities of any other societies, approved for the purpose by the Registrar. The proposal has been examined in detail with reference to the provision of KCS Act.”
After making such an observation, the Joint Registrar of Kottayam was required to bring the contents of Ext.P1 letter granting permission to invest or deposit its fund in the share or securities of the appellant Society. In this context, the provisions under Part V of the Banking Regulation Act, to be precise the section to be substituted for Section 19 thereof, as regards Co-operative Societies, assumes relevance. It reads thus:-
"19. Restriction on holding shares in other co-operative societies.—
No co-operative bank shall hold shares in any other co-operative society except to such extent and subject to such conditions as the Reserve Bank may specify in that behalf:”
There is no case for the appellant or the respondent that the amount was deposited towards shares of the appellant society subject to the conditions specified by the Reserve Bank. Perhaps the respondent might be aware of the said provision and that is why instead of depositing its fund in the shares it made fixed deposits with the appellant-Society pursuant to Ext.P1, as can be seen from Exts.P2 to P4. In the circumstances, the appellant, who received fixed deposit, cannot be heard to contend that it is not as part of banking business that it received the aforesaid amount as fixed deposit from the respondent under Exts.P2 to P4. A perusal of Exts.P2 to P4 would reveal that the amounts were actually received by the appellant as fixed deposit for a definite period mentioned therein and that it offered interest for the deposited amount and that such deposits were effected subsequent to Ext.P1. In such circumstances, it cannot be said that the second and third respondents got no role at all to play in the matter which led to this present precarious situation. In fact, after narrating the said circumstances, in the writ petition, a specific ground viz., ground (E) was taken, as follows:-
“E. Exhibits P2 and P4 Fixed Deposits were made by the petitioner in terms of Exhibit P1 Order of the 3rd respondent; which in turn was issued on the recommendation of the 2nd respondent. Therefore respondents 2 and 3 are liable to be directed by this Hon'ble Court by a writ of mandamus to ensure repayment of the same with interest till the date of payment, within a time framed fixed by this Hon'ble Court.”
In tune with ground (E), prayer No.(iii) was sought for in the writ petition and it reads thus:-
“(iii) Issue writ of Mandamus or any other appropriate writ, order or direction directing the respondents 2 and 3 to assure the repayment of Exhibits P2 to P4, along with interest at the agreed rate till realisation.”
It is in the said circumstances that the decision of Hon'ble Apex Court in Godavari Sugar Mills Ltd's case (supra) and the decision in the judgment in W.A.No.1597/2009 assume relevance. A similar prayer was also sought for in that writ petition. In paragraph 4 therein of the judgment in W.A.No.1597/2009, it was held that normally, this Court should have asked the Registrar to look into the matter and, if found necessary, to issue appropriate directions to the Society. This Court further went on to hold:-
“but, in certain cases, this Court itself can issue that direction, which the Registrar would have issued, had he exercised the discretion vested in him correctly. (See the decision of the Apex Court in Comptroller and Auditor-General of India v. K.S.Jagannathan [(1986)2 SCC 679]. So, we feel that the direction issued in this case by the learned Single Judge is sustainable in law.”
In the case on hand also, the learned Single Judge issued a direction to the appellant-Bank to repay the amounts in fixed deposits covered by Exts.P2 to P4 with interest, at the assured rate.
12. In this context, it is also relevant to note that even in the decision in Choondachery Service Co-op.Bank 's case (supra) relied on by the appellant, the Division Bench held that a writ would lie against a Co-operative Society where the duty owed by the Co-operative Society is of a public nature. Essentially, such a view was taken based on, and after referring to the decision of a Full Bench of this Court reported in John v. Liquidator [2006(1) KLT 11 (FB)], which was virtually affirmed by a Larger Bench of this Court in Association of Milma Officers' Ksheera Bhavan v. State of Kerala [2015(1) KLT 849].
13. Thus, in this case, even after taking note of the fact that there exists an alternative remedy, if the learned Single Judge thought it fit, in the facts and circumstances of the case to entertain the above mentioned writ petition, how can it be said that it was an action devoid of jurisdiction? According to us, it can be taken that the discretion vested with this Court had been exercised by the learned Single Judge in the circumstances. When in exercise of that discretion, the writ petition was entertained and a judgment was rendered an interference and its setting aside on the sole ground that the writ petition was not to be entertained owing to the availability of alternative remedy, cannot be the law. We are fortified in our view by a decision of the Hon'ble Apex Court in U.P.State Spinning Co.Ltd. v. R.S.Pandey [(2005)8 SCC 264]. In the said decision, the Apex Court held thus:-
“Usually when writ petition is entertained notwithstanding availability of alternative remedy and issues are decided on merits, this Court is slow to interfere merely on the ground of availability of alternative remedy.”
After referring to the said decision of the Hon'ble Apex Court, a Division bench of this Court held in Shaji.K.Joseph v. Viswanath [2011(3) KLT 513] as hereunder:-
4. We must also take note of the contention raised by the appellants that the writ petition should not have been entertained in view of the alternate remedy available to the first respondent. In this context, reliance was placed on S.5 of the Dentists Act which reads as follows.
"Mode of elections- Elections under W.A. NOs. 806 & 883 OF 2011 this Chapter shall be conducted in the prescribed manner, and where any dispute arises regarding any such election, it shall be referred to the Central Government whose decision shall be final."
He also referred to Regulation 20 which specifies the procedure for setting aside election. It is true that when an alternate statutory remedy is available to an aggrieved person, a writ petition is ordinarily not entertained by a court of law. But the rule of alternate remedy, as is well settled, is only a self-imposed restriction and not a statutory compulsion and has its exceptions. In this case, the writ petition was entertained by this court, parties entered appearance, filed their respective pleadings, detailed arguments were addressed and the learned Single Judge exercised his discretion and considered the W.A. NOs. 806 & 883 OF 2011 contentions on merits and decided the lis. Therefore at the appellate stage, we are not inclined to reject the writ petition for the reason that the alternate remedy by way of a petition u/s 5 could have been pursued by the first respondent. This view, is fully supported by the Apex Court decision reported in U.P.State Spinning Co. Ltd. v. R.S. Pandey (2005 (8) SCC 264) where it has been held thus, "Usually when writ petition is entertained notwithstanding availability of alternative remedy and issues are decided on merits, this Court is slow to interfere merely on the ground of availability of alternative remedy".
14. In view of the factual matrix obtained in this case, another aspect also becomes noteworthy. We have already taken note of the absence of dispute regarding the amount of fixed deposit made by the respondent, issuance of Exts.P2 to P4, the date on which the deposit got matured, the fact that demand for repayment was made by the respondent and also the liability of the appellant to repay the amount
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deposited under Exts.P2 to P4. There is no case for the appellant that Exts.P2 to P4 were not issued at the time of receipt of fixed deposits. So also, there is no case for the appellant that the respondents had made any manipulation in Exts.P2 to P4. When that be so, after the date of maturity of the fixed deposits covered by Exts.P2 to P4, for the aforesaid amount of Rs. 56,00,000/-, upon demand, the appellant got a duty coupled with liability to repay the amount deposited along with interest at the assured rate, mentioned in Exts.P2 to P4. How can the appellant be permitted to wriggle out of it by taking up a totally non-available contention that there is dispute regarding interest when the rate of interest is specifically mentioned in Exts.P2 to P4? In such circumstances, how can the impugned judgment be interfered with and the respondent herein be relegated to avail the remedy under Section 69 of the Kerala Co-operative Societies Act? In the absence of dispute on the aforesaid aspects mentioned hereinbefore, it can be said without all per adventure that there would nothing to be adjudicated in exercise of the power under Section 69 of the Co-operative Societies Act. In the aforesaid circumstances, it can only be said that byproduct of the impugned judgment is nothing but justice. In view of the facts thus obtained in this case, the decision in Roshan Deen v. Preeti Lal [AIR 2002 SC 33] is also worthy for reference. The Hon'ble Apex Court held that a writ court should not erase justice in the name of correcting an error of law and that the power conferred on the High Courts under Articles 226 and 227 of the Constitution of India is to advance justice and not to thwart it. The very purpose of such constitutional powers being conferred on the High Court is that no man should be subjected to injustice by violating the law and therefore, the lookout of the High Courts, in such circumstances, should not merely be to pick out an error of law through an academic angle, but should be to see whether injustice had resulted on account of any erroneous interpretation of law. If justice became the byproduct of an erroneous view of law, the High Court is not expected to erase such justice in the name of correcting the error of law, it was further held. In view of the facts obtained in this case and bearing in mind the aforesaid decision, unhesitatingly, we hold that as per the impugned judgment, justice was done. Merely because it is a writ appeal, the said decision would not become irrelevant, especially when there is no error of law or any other illegality or perversity in the impugned judgment. In such circumstances, according to us, under Section 5 of the High Court Act, the writ petition filed by the respondent herein whereon the impugned judgment was rendered by the learned Single Judge, is not liable to be rejected on the sole ground that an alternative remedy was available. 15. In the light of the foregoing reasons, we do not find any reason at all to interfere with impugned judgment passed by the learned Single Judge. Before parting with the case, we are of the view that it is only befitting for the appellant-society to remember the following observation of the Honourable Apex Court in Rustom Cavasjee Cooper.'s case (supra):- “Business of banking thrives on it reputation for probity of its dealings,efficiency of the service it provides, courtesy and promptness of the staff, and above all the confidence it inspires among the customers for the safety of the funds entrusted.” In the circumstances, this writ appeal is dismissed.