IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 WP(C).No. 31891 of 2004(V) -------------------------- PETITIONER(S): ------------------ M.V.NINAN, SRAIKATTU HOUSE, MEENADAM, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENT(S): ------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT CO-OPERATIVE DEPARTMENT, THIRUVANANTHAPURAM. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM. 4. THE SPECIAL SALE OFFICER, THE ADHYAPAKA CO-OPERATIVE BANK LTD. 794, PUTHUPPALLY, KOTTAYAM. 5. THE ADHYAPAKA CO-OPERATIVE BANK LTD. NO.794, PUTHUPPALLY, KOTTAYAM. ADV. SRI.P.N.MOHANAN FOR R5 SRI.UNNI. K.K. (EZHUMATTOOR) FOR R5 GOVERNMENT PLEADER SRI.K.S.MOHAMMED HASHIM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.31891/2004 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF APPLICATION DT 12.3.93 SUBMITTED BY THE PETITIONER BEFORE 5TH RESPONDENT BANK. EXT.P2: TRUE COPY OF REPLY DATED 15.12.01 SENT BY THE PETITIONER TO THE 5TH RESPONDENT. EXT.P3: TRUE COPY OF REPLY DT 16.8.03 SENT BY THE PETITIONER TO THE 5TH RESPONDENT. EXT.P4: TRUE COPY OF PLAINT IN ARC 3721/03 FILED BY 5TH RESPONDENT BEFORE 3RD RESPONDENT. EXT.P5: TRUE COPY OF APPLICATION OF V.S.GOPALAN TO THE 5TH RESPONDENT. EXTS OF R5 EXT.R5(A): A TRUE COPY OF THE RECEIPT ISSUED BY THE POSTAL DEPARTMENT DTD 22.11.84. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 31891 OF 2004 (V) ===================== Dated this the 17th day of July, 2009 J U D G M E N T Petitioner prays for the issuance of a writ of certiorari quashing Ext.P4, the plaint in ARC 3721/03 filed by the 5th respondent before the 3rd respondent. 2. Facts of the case as disclosed in the pleadings are that the petitioner was a member of the 5th respondent society. In Chitty No.18/81 conducted by the 5th respondent, petitioner had subscribed one kuri having a sala of Rs.10,000/- The kuri was prized at the 9th instalment and the petitioner received the prize money also. It is his case that he paid all the instalments and that the kuri terminated sometime in 1985. 3. Petitioner retired from service in 1990 and thereafter an application was made to the 5th respondent to withdraw his share money. It is stated that by Ext.P1 issued in 1993, on the basis that the petitioner had no liability towards the 5th respondent, the entire amount due to him has been released also. It is also his case that by Ext.P5, the person who stood as surety, who was also a member of the 5th respondent, got his share WPC 31891/04 :2 : money also refunded. 4. It is stated that long thereafter, he was issued a notice calling upon him to make payment of certain amounts to the 5th respondent and reply was issued disputing the demand. Petitioner submits that still later by Ext.P4 plaint, the Bank instituted ARC 3721/03 for realising Rs.17,700/- which includes Rs.5,200 towards the principal allegedly due, Rs.11,700/- towards interest and other charges. Counsel contends that the claim urged in Ext.P4 is a stale claim and that by lapse of time, he is disabled from defending the case, in as much as he is no longer in possession of any documents concerning the kuri. It is on this premise, petitioner prays for quashing Ext.P4 and thus to exonerate him of the claim made. 5. 5th respondent submits that going by its accounts, money claimed in Ext.P4 is due from the petitioner and that the liability of the petitioner was disclosed only when its accounts were audited. It is stated that the amount claimed is recoverable and therefore the prayer sought is misconceived. Counsel also submitted that this Court will not be justified in exercising writ jurisdiction against the proceedings instituted before a competent WPC 31891/04 :3 : forum and for that reason also writ petition is to be dismissed. 6. In my view, even if the petitioner has grievance against the proceedings that are instituted against him, remedy is not one under Article 226 of the Constitution of India. Proceedings admittedly are pending before the Arbitrator and petitioner cannot justifiably complain that the Arbitrator lacks jurisdiction to entertain the same. So long as proceedings are not bad for want of jurisdiction, petitioner will have to appear before the Arbitrator and contest the case. If at all the claim is a stale one or is not maintainable for any other reasons, it is up to the petitioner to urge the contentions in the written statement or raise as a preliminary issue and it is for the Arbitrator to decide on those issues. Therefore, the writ petition will stand disposed of leaving it open to the petitioner to appear before the 3rd respondent and contest the matter and making it clear that it is for the 3rd respondent to decide the issue finally. ANTONY DOMINIC, JUDGE Rp