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TMI Blog2010 (9) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... r organisation with Karayogam at the base level, Taluk Unions at the intermediate level and the Head Quarters at the apex level. The second respondent is one of the base level organisations of the first respondent having registered as per the memorandum and bye-laws approved by the Board of Directors of the company and as certified by the Karayogam Registrar. Annexure-A produced is the Registration Certificate and Annexure-B purports to be the bye-laws of the second respondent. 2. Respondents 1 and 2 have filed separate counter affidavits before the learned Company Judge in C.P. No. 10/2007. The first respondent contended that the company petition is not maintainable. It took the stand that it is a company registered under section 26 of the Travancore Companies Regulations 1 of 1092 M.E. as a Company limited by guarantee, but without the addition of the word, 'limited' to its name as per licence, dated 18-3-1925 certified by the Government in its favour. The Society became a deemed company within the meaning of section 3 of the Companies Act, 1956 on the commencement of that Act. As the objects of the Society were confined to one State, namely, the State of Kerala, it was contende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent will make available a chart of details touching the litigations, decrees etc. in relation to the issue in hand. In the meanwhile, respondents 1 and 2 and the petitioners could also place any concrete proposal which could be considered to aid a fruitful resolution of this litigation in an amicable manner." 5. Still later, the learned Company Judge, inter alia, passed the following order, dated 6-10-2008:- "(1) This matter relates to Neerkunnam NSS Karayogam No. 1365, Neerkunnam in Alappuzha, the second respondent, hereinafter, the "Karayogam", for short. (2) This company petition is filed alleging that the aforesaid Karayogam had received advances of loans from the petitioners and had collected various amounts in the name of the Karayogam, from the public at large, as deposits and are essentially carrying on activities which may amount to money lending. The office bearers of the Karayogam are charged with breach of duty and this company petition is filed seeking an investigation into the affairs of the Nair Service Society and the aforesaid Karayogam on the allegation that the amounts have not been appropriately accounted, but are siphoned off, misutilised and not returne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ism of control. (8) Having regard to the aforesaid, the following orders are issued: (a )Sri V.K. Chandrasekhara Kurup, Secretary, Ambalappuzha NSS Taluk Union is hereby appointed as Receiver and is put in charge of all the assets of NSS Karayogam No. 1365, Neerkunnam and he shall be custodian of all documents, files, assets and other materials in relation to the Karayogam. (b )All office bearers of the Karayogam shall handover whatever documents, money, negotiable instruments or any other movable properties belonging to the Karayogam, in their possession, to the Receiver, within one week. (c )All such persons shall place in the custody of the Receiver, all documents, they have, in relation to the assets, movable and immovable of the Karayogam. (d )The aforesaid Receiver shall be appraised of the pending litigations in all the courts in which the Karayogam is a party, including the execution proceedings. (e )The Receiver shall place a comprehensive report before this Court, by the 4th December, 2008 stating the course of events that take place in the meanwhile. The Receiver shall have the authority, either by himself, or through proper person, to collect all amounts that may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri M. Pathrose Mathai, learned Senior Counsel appearing on behalf of the first respondent. 8. The learned Senior Counsel for the appellants addressed before us the following submission:- He would emphasise the orders dated 26-6-2008 and 6-10-2008, which we have already adverted to. He would contend that the Company Court having dealt with the matter had taken a view and the parties having acted upon it, it was not proper on the part of the learned Company Judge to proceed to hold that the company petition is not maintainable. He would also emphasise large sums were due to the appellants from the second respondent. Very fairly he does not dispute the issue of Ext.R1(c). Equally fairly he does not dispute that the first respondent is not a company under the Companies Act. But he would nonetheless contend that having regard to the peculiar circumstances of the case then the learned Company Judge has applied his mind and proceeded to pass orders dated 26-6-2008 and 6-10-2008 and the company petitions was kept pending for a fairly long period of time and, particularly, having regard to the conduct of the respondents in not impugning the orders and on the contrary submitting themselves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 2nd respondent is a member of the 1st respondent Society, which is a company registered under the Travancore Companies Act and, therefore, the company petition was maintainable as against the 1st and 2nd respondents. (G)It is respectfully submitted that a specific contention was taken before the learned Single Judge that the 2nd respondent Karayogam is a base level organisation of the 1st respondent, which is functioning on the bye-laws approved by the Board of Directors of the 1st respondent, and as evidenced from Annexure B bye-laws produced along with the company petition, that the 2nd respondent Karayogam is completely under the administrative control of the 1st respondent society and that the same had been admitted by the 1st respondent society in the Annexure F reply notice produced along with the company petition, and further that it was admitted by the 1st respondent, that as per the bye-laws, amounts were collected from the various Karayogamsunder different heads like supervision charges, audit fees etc. The learned Single Judge failed to appreciate that the 2nd respondent was an integral part of the 1st respondent and that it was under the supervision and control of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions cited by the learned Senior Counsel. In L.K. Verma's case (supra) the Court was considering a case where a writ petition was filed challenging an order in a disciplinary proceedings. Therein, the court took the view that once a writ petition was entertained and determined on merits, the Appellate Court would not, except in rare cases, interfere therewith on the ground of existence of an alternative remedy. We at once notice that the principle which is enunciated by the Apex Court was in the context of a writ petition under Article 226. The existence of an alternate remedy is not a bar to the exercise of the jurisdiction as an absolute rule. There are circumstances in which a party may pursue a writ petition despite existence of alternative remedies. It is not a case where the Writ Court is totally without jurisdiction to entertain the matter. In such a case, if the learned Single Judge exercises his powers, as held by the Apex Court, it is only rarely that the Appellate Court would turn away the writ petitioner on the ground of availability of an alternate remedy. 16. Unlike the situation in the said case, this is a case where we are dealing with a company petition sought to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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