IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 22091 of 2005(E) -------------------------- PETITIONER(S): --------------- THE ALLEPPEY PARAVOOR SERVICE CO-OPERATIVE SOCIETY LTD. REG.NO.1214, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.A.KRISHNAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, CO-OPERATIVE SOCIETIES, TRIVANDRUM. 2. THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. 3. THE ASSISTANT REGISTRAR/ SPECIAL ARBITRATOR-CUM-SALE OFFICER, KERALA STATE CO-OPERATIVE MARKETING FEDERATION LTD KOCHI-682 020. 4. THE KERALA STATE CO-OPERATIVE MARKETING FEDERATION LIMITED, KOCHI-20. G.P. SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.9.2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No. 22091/05. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE AWARD DTD.4.5.2005. P2. COPY OF THE JUDGMENT DTD.26.6.99. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.22091 of 2005 ================== Dated this the 17th day of September, 2009 J U D G M E N T The petitioner is the defendant in ARC No.327/92 before the Assistant Registrar/Special Arbitrator-Cum-Sale Officer of the Kerala State Co-operative Marketing Federation Ltd. The ARC was filed by the 4th respondent herein, alleging that the petitioner has not paid two invoices for purchase of fertilizers from the 4th respondent-Federation. By Ext.P1 order (wrongly numbered as Ext.P2 in the writ petition), the Arbitrator found that the 4th respondent had not proved the claim, but allowed the 4th respondent to recover the amount in respect of one invoice on the ground that the defendant admitted liability as per that invoice. The petitioner challenged that award before the Kerala Co- operative Tribunal in A.P.No.116/2000 wherein, by Ext.P2 judgment (wrongly numbered as Ext.P1 in the writ petition), the Tribunal, after finding that the finding that the defendant admitted liability is wrong, remanded the matter to the Arbitrator for fresh consideration. Ext.P2 order of the Tribunal is under challenge before me. 2. The contention of the petitioner is that after finding that there is no evidence to find the petitioner liable to pay any amount to the 4th respondent, the Tribunal ought not to have remanded the matter and should have dismissed the ARC itself. By the present W.P.C.22091/05 2 judgment the 4th respondent is given a chance to modify the plaint so as to convert it as a suit for settlement of accounts, which is not permissible under law, is the contention raised. 3. Despite receipt of notice, the 4th respondent has not chosen to enter appearance and contest the matter. I have heard the learned Government Pleader appearing for other respondents. 4. In Ext.P1 the finding is thus: “The plaintiff to prove this case has produced exts. P4 to P4(f) books of personal accounts. No cogent evidence is adduced. The suit is filed for realising an amount outstanding for payment on sales effected through two bills i.e. bill no. 4288, 4289 as the case may be date 27.6.83 and bill no. 4366 dtd. 3.7.83. The defendant admitted the liability as per the bill no. 4366 dated 3.7.87 but categorically denied the transaction on 27.6.83. The burden of proff (sic) is upon the plaintiff. The plaintiff did not produce the stock register. They even did not produce the sale bill. An unauthenticated photo copy of the said bill was rejected. Ext.P5 is a letter issued by the then Secretary of the society acknowledging the receipt of 10 tons of manure from one Mr.Ummerkutty, addressed to the Field Officer, KSCMF Ltd. Chungom. This letter is dated 20.6.83. The PW1 deposed that it is usual business practice in the Federation to realise goods even before raising the invoice. The plaintiff has failed to prove the transactions as per invoice no.4289 dated 27.6.83. Ext.D4(b) which is the audit accounts of the defendant does not include this transaction in this accounts (sic). If at all the employees of the plaintiff had made any transaction without proper records the only way open to the plaintiff is to realise the same from such employee. The defendant cannot be held liable for the same. The defendant has admitted the transaction as per invoice no. 4366 dated 3.7.83 for Rs.9361.92. They have not repaid this amount. The defendant shall repay this amount to the plaintiff.” From the said finding, it is abundantly clear that there was absolutely no evidence before the Arbitrator for finding the petitioner liable for any amount. Only on the ground of admission by the defendant the Arbitrator permitted the 4th respondent to recover the amount of W.P.C.22091/05 3 Rs.9,361.92 with interest from the petitioner. In Ext.P2 order (which is wrongly marked as Ext.P1), the Tribunal found thus: “5. The point:- The suit evidently is one for recovery of money which was awarded in favour of the respondent. The plea in the plaint is that the defendant society after having received fertilizers for Rs.20,281.17 on credit purchse from the plaintiff as per invoice No.4288 and 4366 dated, 27.6.83 and 3.7.83 respectively has defaulted to pay the value thereof. The defendant after admitting that he used to purchase fertilizers from the defendant society on credit basis contended that there was no agreement between the plaintiff and the defendant as to any credit basis or interest as alleged. The defendant never agreed to pay interest at the rate of 19.5%. The defendant has further contended that the alleged transaction as per invoice No.4288 is a fictitious one. Invoice No. 4366 alleged is a forged one, that the defendant is not entitled to pay any amount. In fact, the contention of the defendant is that no amount is due to the plaintiff as per invoice Nos. 4288 and 4366. The invoices not seen produced before the Arbitrator. The argument put forward by the learned counsel appearing for the appellant that since the plaintiff has come forward with a claim based on two invoices the burden is on them to prove the transaction and the dues cannot be brushed aside. But the learned Arbitrator rejecting the claim based on invoice No.4288 found that the defendant is liable to pay the due as per invoice No.4366 because defendant has admitted the same transaction. But it is to be noted that there is no such admission in the written statement and even the invoice number is disputed. The burden of proving the transaction is on the plaintiff. So also even after 3.7.83 payment is effected by the defendant. So the argument put forward by the learned counsel appearing for the appellant that the plaintiff ought to have filed a suit for settlement of accounts, inspite of the present suit also cannot be brushed aside. So in any view of the matter, the award cannot be allowed to stand.” From that also, it is abundantly clear that the 4th respondent had not produced any evidence whatsoever to substantiate the claim against the petitioner. The Tribunal found that there was no admission by the petitioner, which was the sole reason for finding the petitioner liable in respect of one invoice. That would mean that there was absolutely no evidence to find the petitioner liable for any amount at all. Therefore, I am satisfied that the only order the Tribunal could have passed in the W.P.C.22091/05 4 appeal before her was to dismiss the A.R.C. itself in so far as the 4th respondent had not adduced any evidence whatsoever to show that the petitioner was liable to pay the amounts due as per the two invoices based on which the claim was made. That being so, I am satisfied that the order of the Tribunal remanding the matter is unsustainable. The petitioner also points out that this is second time that the matter is being remanded. There is no point in for such a paltry sum, directing the petitioner to again and again go through cumbersum process of undergoing the trial before the Arbitrator. Accordingly, Ext.P1 to the extent it remands the matter to the Arbitrator is quashed. It is held that the petitioner is not liable to pay any sum to the 4th respondent and ARC would stand dismissed. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge