IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 WP(C).No. 8213 of 2007(C) ------------------------- PETITIONER(S): ------------------ UMAYATTUKARA SERVICE CO-OP.BANK,LTD, NO.499,KALLISSERY P.O,CHENGANNUR-689124,REP. BY ITS SECRETARY. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): ------------------- 1. KERALA CO-OPERATIVE TRIBUNAL,TRIVANDRUM. 2. THE ASSISTANT REGISTRAR/ARBITRATOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,CHENGANNUR. 3. V.RAJENDRANATH,KOCHUPURACKAL, VALANJAVATTOM P.O.,KADAPPARA,THIRUVALLA. 4. C.K.SIVASANAKRA PILLAI,AATTUPURATH THEKKETHIL VEEDU,THIRUVANDANDOOR,ERAMALLIKKARA, CHENGANNUR. 5. K.SUSEELA,ATTUPURATH THEKKETHIL VEEDU, THIRUVANVADOOR,ERAMALLIKKARA,CHENGANNUR. ADV. SRI.S.JAYAKRISHNAN FOR R3 GOVT.PLEADER SRI.DILEEPMOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.8213/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE APPLICATION DT 1.10.2003. EXT.P2: TRUE COPY OF THE PETITION DT 9.6.05 EXT.P3: TRUE COPY OF THE AWARD IN ARC 366 OF 2001 DT 15.10.2003. EXT.P4: TRUE COPY OF THE REVISION PETITION IN RP 204 OF 2005 FILED BEFORE THE FIRST RESPONDENT DT NIL. EXT.P5: TRUE COPY OF THE ORDER IN RP 204 OF 2005 DT 10.7.2006. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 8213 OF 2007 (C) ===================== Dated this the 6th day of October, 2009 J U D G M E N T A Co-operative Bank is the petitioner. They are aggrieved by Ext.P3 award rendered by the Arbitrator and Ext.P5, order passed by the Tribunal rejecting the revision petition filed by them. 2. Facts of the case are that according to the petitioner, in 1999, offering two sureties, the 3rd respondent availed of a house maintenance loan of Rs.50,000/- repayable in 60 instalments. Alleging that default was committed by the 3rd respondent and the sureties, Bank filed ARC No.366/01. Records show that on 29/9/03 evidence on behalf of the petitioner was completed. At that stage, the 3rd respondent, who had denied the liability and even the transaction, filed an application requiring the Bank to produce the application made by him for membership in the Bank. Bank filed an affidavit on 29/9/03 confessing non availability of any such application, but however wanted to examine the Manager who disbursed the loan. 3. Accordingly the case was posted to 1/10/2003, on WPC 8213/07 :2 : which date, neither the counsel appearing for the Bank nor the witness were present. The Secretary of the Bank who need not have been present filed Ext.P1 application for adjournment on the ground of illness. In view of the absence of witness and the lawyer, the Arbitrator proceeded to record the evidence of the respondents before him and closed the case. Thereafter, he passed Ext.P3 award dated 15/10/2003 rejecting the ARC. 4. Contending that progress subsequent to Ext.P1 was not conveyed to the petitioner and seeking information about the status of the proceedings and copy of the award, if passed, the Bank filed Ext.P2 application dated 9/6/05 before the Arbitrator. It is stated that it was thereupon that the Bank was issued Ext.P3, copy of the award. Thereafter the Bank filed Ext.P4 revision before the Tribunal complaining mainly that the Bank was not given an opportunity to adduce evidence. However, by Ext.P5, the Tribunal rejected the revision concluding that it was the lapses on the part of the Bank which led to the award against it. It is challenging Exts.P3 and P5 in the aforesaid background, the writ petition is filed. WPC 8213/07 :3 : 5. A reading of Exts.P3 and P5 show that there were lapses on the part of the petitioner and therefore, no fault can be found either on the part of the Arbitrator or on the part of the Tribunal in passing the award and rejecting the Revision. However, fact remains that loan was disbursed and amount has not been paid. Therefore, if the petitioner is able to prove that loan was availed of by the 3rd respondent, the Bank is entitled to realise the amount. In such circumstances, I feel that ends of justice require that the Bank should be given another opportunity to adduce further evidence and attempt to prove its case. However, such opportunity cannot be allowed except on terms, having regard to the lapse on the part of the Bank as noticed above. Therefore, the writ petition is disposed of directing that Ext.P3 award in ARC No.366/01 and Ext.P5 order rejecting RP No.204/05 will stand set aside on condition that within two weeks from today, the petitioner pays an amount of Rs.3,000/- (Rupees three thousand only) towards cost to the 3rd respondent. It is directed that on the Bank producing proof of such payment, the WPC 8213/07 :4 : 2nd respondent shall reconsider the proceedings resulting in Ext.P3 award, giving the petitioner an opportunity to adduce evidence and pass fresh orders in the matter, with notice to the parties concerned. ANTONY DOMINIC, JUDGE Rp