IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 WP(C).No. 27986 of 2003(F) ---------------------------------------- PETITIONER(S): ---------------------- L.INDIRAVATI, KANNIMEL VEEDU, MUNDAKKAL, KOLLAM. BY ADV. MRI.V.G.ARUN RESPONDENT(S): ------------------------- 1. THE KERALA CO-OPERATIVE TRIBUNAL, TRIVANDRUM. 2. THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, KOLLAM. 3. SREE NARAYANA COLLEGE CO-OPERATIVE STORE LTD. NO.2987, KOLLAM, REPRESENTED BY ITS SECRETARY. ADV. MR.C.UNNIKRISHNAN (KOLLAM) FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.27986/2003 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN ARC 1839/87 FILED BEFORE THE ARBITRATOR DT. 1.9.87. P2:- COPY OF THE AWARD IN ARC 1849/87 DT. 22.12.2000 OF THE ARBITRATOR. P3:- COPY OF THE JUDGMENT IN A.P. 10 OF 01 OF THE IST RESPONDENT DT. 29.7.03. P4:- COPY OF THE RELEVANT PAGE OF THE AUDIT REPORT. P5:- COPY OF THE DEMAND NOTICE NO.3735/04 DT. 3.1.05. P6:- COPY OF THE ORDER IN IA. 454/01 IN APPENDIX. 10/01 DT. 5.11.01 OF THE CO-OP. TRIBUNAL. P7:- COPY OF THE LETTER DT. NIL. ENCLOSING AGREEMENT OF SECURITY. P8:- COPY OF THE DEED OF SECURITY BOND DT. 18.10.05. P9:- COPY OF THE AUCTION NOTICE DT. 23.11.05. TRUE COPY P.S. TO JUDGE TSS ANTONY DOMINIC,J. --------------------- W.P.(C).No.27986 OF 2003 ------------------------ Dated this the 25th day of June, 2009. JUDGMENT Petitioner was a sales woman under the 3rd respondent society. In 1987, the 3rd respondent filed Ext.P1 plaint before the 2nd respondent, for recovery of an amount of Rs.1,56,730.91, which was claimed to be due towards the value of the stock deficit. Paragraphs 3 to 7 of the plaint shows that, there was deficit in the stock to the value of Rs.1,56,730.9 and that the petitioner was being in charge of the sales of the society, was liable to make good the same. 2. The claim was registered as ARC.No.1839/87. A written statement was filed by the petitioner and after recording the evidence, by Ext.P2 award, the Arbitrator rejected Ext.P1. The reasons stated in Ext.P2 are mainly that, the stock verification report, that was made WP(c).N.27986/03 2 available by the 3rd respondent was not acceptable to the Arbitrator and that the audit certificate was not produced by the 3rd respondent. Appeal was filed before the Tribunal as AP No.10/2003 and by Ext.P3 judgment the appeal was allowed. It is challenging Ext.P3, the writ petition is filed. 3. Counsel for the petitioner mainly contends that the conclusion of the Tribunal regarding the stock verification report, contrary to the findings of the Arbitrator is erroneous. It is also contended that the audit certificate ought not have been accepted and that its acceptance was contrary to Section 11 of the Co-operative Societies Act. 4. I heard the submissions of the counsel for the petitioner and also the 3rd respondent. A reading of Ext.P3 shows that stock verification was conducted on 28th, 29th and 30th of July, 1987. The stock verification was conducted in the presence of the petitioner. Not only that she had signed the report but also that she had not raised any WP(c).N.27986/03 3 objection about the manner in which the stock verification was conducted. True the stock register was not signed by the stock verification Officer and that was one of the reasons which weighed by the Arbitrator for not accepting the register. However, the Tribunal has rightly noticed that the register was signed by the petitioner and that she had no objection about the contents of the same. In addition, the Board members of the Society had also signed the stock register. On this reason the Tribunal held that the finding of the Arbitrator that the Stock Register was not acceptable is erroneous. The tribunal also has referred to Exts.A6,A7, A13 and A16 letters from the petitioner, where she had admitted the liability and sought for time to discharge the amount found to be due. These letters are also read out in open court and I am satisfied that, in these letters the petitioner has accepted the liability in qualified terms and sought time for payment. WP(c).N.27986/03 4 5. The other complaint of the petitioner is regarding the acceptance of the audit certificate. It is true that the audit certificate was not produced before the Arbitrator and that the same was produced before the Tribunal for the first time. The counsel contended that, if the certificate was accepted, the right course which ought to have been adopted by the Tribunal was to have remanded the matter for fresh consideration .However, the compliant of the petitioner before the Tribunal that she did not get an opportunity to cross examine the person who produced the certificate has been dealt with and the Tribunal rejected the same for the reason that no objection was raised by the petitioner with regard to the contents of the documents. If the contents of the document has been accepted its reliance cannot be refused for the only reason that the person who produced the same was not made available for cross examination. WP(c).N.27986/03 5 6. Therefore, the finding of the Tribunal regarding the stock verification report and the audit certificate, deserves acceptance. Added to this is the fact that the petitioner has accepted the liability and sought time for making payment as per Exts.A6, A7, A13 and A16 letters written by her. In view of this I am not inclined to interfere with Ext.P3. Writ Petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ WP(c).N.27986/03 6