IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 WP(C).No. 1070 of 2011(G) ------------------------- PETITIONER(S): --------------- THE EDAKKAD BLOCK SOCIAL WELFARE CO-OPERATIVE SOCIETY LIMITED NO.C 1134, POST MUZHAPPILANGAD, KANNUR REPRESENTED BY ITS SECRETARY P.K.KRISHNAN, AGED 62 YEARS, S/O.KUNHIRAMAN. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): --------------- 1. K.LEELA, W/O.KUMARAN. 2. K.VINOD, S/O.KUMARAN. 3. K.DILEEP, S/O.KUMARAN. 4. K.CHITHRA, D/O.KUMARAN. 5. K.ANOOP KUMAR, S/O.KUMARAN. PETITIONERS 1 TO 5 ARE RESIDING AT CHITHRALAYAM, NEAR F.C.I., POST MUZHAPPILANGAD, KANNUR. 6. K.RAMESHAN, S/O.KUNHIKKANAN, SNEHALAYAM, NEAR KOORARA MAIDAN, CHIRAKKUNI, POST PALAYAD, THALASSERY, KANNUR DISTRICT. 7. C.DASAN, S/O.KUNHIRAMAN, FORMER PRESIDENT, EDAKKAD BLOCK SOCIAL WELFARE CO-OPERATIVE SOCIETY, THIRUVATHIRA, POST MUZHAPPILANGAD, KANNUR. 8. C.M.AJITH KUMAR, S/O.ACHUTHAN, RESIDING NEAR MUZHAPPILANGAD U.P.SCHOOL, POST MUZHAPPILANGAD, KANNUR DISTRICT. 9. THE ASST.REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, KANNUR. BY GOVT. PLEADER SRI.M.A.ASIF. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No. 1070 of 2011 ------------------------------- Dated this the 20th day of January, 2011 J U D G M E N T Ext.P1 award passed by the Arbitrator in A.R.C.Nos.357 of 2005 and 4065 of 2006 and Ext.P2 order passed by the Kerala Co- operative Tribunal in A.P.No.35/2008 are under challenge in this writ petition. The predecessor-in-interest of respondents 1 to 5 filed A.R.C.No.357 of 2005 seeking refund of the sum of Rs.65,000/- covered by Ext.A1 fixed deposit receipt together with interest and costs. The sixth respondent filed A.R.C.No.4065 of 2006 seeking refund of the sum of Rs.25,000/- covered by Ext.A2 fixed deposit receipt together with interest and costs. Upon service of notice from the Arbitrator, the petitioner herein entered appearance and filed a statement dated 18.4.2006 contending that the society is not liable to pay back the amounts alleged to have deposited by respondents. It was contended that the responsibility to repay the amount is that of the office bearers of the committee who canvassed such deposits. The petitioner entered appearance only on that occasion and remained absent inspite of several postings. Respondents 7 and 8 herein who were defendants 2 and 3 in the arbitration case admitted the fact that the plaintiffs had deposited the sum of Rs.65,000/- and Rs.25,000/- respectively in the petitioner society and it is the responsibility of the W.P.(C) No.1070 of 2011 2 society to pay back the deposit amounts to him. By Ext.P1 award passed on 26.3.2008, the Arbitrator directed the petitioner society to pay the amount covered by Exts.A1 and A2 fixed deposit receipts together with interest and costs. Aggrieved thereby, the petitioner filed A.P.No.35 of 2008 before the Kerala Co-operative Tribunal. As a matter of fact, since the claims were independent, the petitioner ought to have filed two appeals. The Tribunal without noticing that defect entertained the appeal and dismissed it by Ext.P2 order passed on 29.7.2010. Hence, this writ petition. 2. I heard Sri.Jacob Sebastian, learned counsel appearing for the petitioner and Sri.M.A.Asif, learned Government Pleader appearing for the respondents. I have also gone through the pleadings and the materials on record. Referring to paragraph 11 of Ext.P2 order, the learned counsel for the petitioner contended that the society is not in possession of any records, and therefore, it cannot be held liable to pay the amounts claimed by respondents 1 to 6. The learned counsel submitted that as the award passed by the Arbitrator is an ex parte award, an opportunity may be given to the petitioner to have the claim decided on the merits. 3. Ext.P1 award discloses that the petitioner society was W.P.(C) No.1070 of 2011 3 served and had entered appearance. It had in fact filed a statement on 18.4.2006 contending that it is not liable to pay back the amounts stated to have been deposited and the liability to repay the amounts is that of the office bearers of the committee who canvassed the deposits. Though a copy of the said statement has not been placed on record, it is evident from Ext.P1 award that the contention of the petitioner was that the office bearers of the committee who canvassed the deposits should refund the same. The society had no case that there are no records in its custody to prove the deposits made by members. Such a plea was raised for the first time only in the appeal. The plea raised in the memorandum of appeal is also not clear as a copy thereof has not been produced. It is stated in Ext.P2 that the documents and the counter foils were not handed over to the new managing committee. That statement would imply the fact that there are documents to prove the deposits, but they were not handed over to the new committee. From that averment, it cannot be inferred that there are no documents at all in the society. Such a plea which is now sought to be raised cannot, in my opinion, be entertained. The Arbitrator and the Tribunal have on the basis of the pleadings and the evidence available in the case, accepted the case W.P.(C) No.1070 of 2011 4 set out by the plaintiffs. In the absence of any pleading or proof to the effect that no deposit had in fact been made, the challenge to Exts.P1 and P2 cannot be entertained. I accordingly hold that no grounds have been made out warranting interference with the impugned orders. The writ petition fails and is dismissed. P.N. RAVINDRAN, JUDGE. nj.