IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 WP(C).No. 33833 of 2011(D) -------------------------- ARC.2506/2009 of KERALA CO-OP.TRIBUNAL,TVM. .................... PETITIONER(S): --------------- 1. BIJU.S., AGED 36 YEARS, S/O.SATHYAN, SREE VILASOM, THAZHUTHALA, KOTTIYAM, KOLLAM DISTRICT. 2. K.VALSALA, AGED 56 YEARS, W/O.SATHYAN, SREE VILASOM, THAZHUTHALA, KOTTIYAM, KOLLAM DISTRICT. BY ADV. SRI.K.G.ANIL BABU SRI.R.RAJESH(PULLIKADA) RESPONDENT(S): --------------- THE SECRETARY, POOTHAKKULAM SERVICE CO-OPERATIVE BANK LTD.NO.2944, POOTHAKULAM, POOTHAKULAM P.O., KOLLAM TALUK, KOLLAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C)No.33833/2011 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: THE TRUE COPY OF THE AWARD IN ARC.2506/2009. EXHIBIT P2: THE TRUE COPY OF THE ORDER IN RP.732011 DATED 19/11/2011. / TRUE COPY / P.S.TO JUDGE P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.33833 of 2011 ----------------------------------------- Dated this the 19th day of December, 2011 JUDGMENT Ext.P1 award passed by the Arbitrator appointed under section 69 of the Kerala Co-operative Societies Act, 1969 and Ext.P2 order passed by the Kerala Co-operative Tribunal dismissing the revision petition filed by the petitioners challenging Ext.P1 award are under challenge in this writ petition. 2. The first petitioner availed a loan of Rs.3,00,000/- (Rupees Three lakhs only) from the Poothakkulam Service Co- operative Bank Ltd. on 9.7.2004. The loan was secured by a mortgage of the immovable properties belonging to the second petitioner, the mother of the first petitioner. When the petitioners defaulted repayment of the loan the bank instituted A.R.C.No.2506 of 2009 before the Arbitrator. The Arbitrator issued notice to the petitioners. They appeared pursuant to the notice on 29.9.2009 and sought an adjournment. Thereafter notice was issued to the counsel appearing for the petitioners informing him of the posting of the arbitration case on 19.2.2010 W.P(C).No.33833 of 2011 -:2:- and 29.6.2010. Neither the petitioners nor their counsel appeared. The Arbitrator thereafter proceeded to dispose of the arbitration case ex parte and Ext.P1 award was passed on 29.6.2010 allowing the plaintiff bank to recover the sum of Rs.5,79,639/- together with future interest on the sum of Rs.5,18,631/- at 16% per annum from 29.6.2010. 3. The petitioners did not challenge the award in time. But later they filed a revision petition before the Kerala Co-operative Tribunal. In that revision petition, the Poothakkulam Service Co- operative Bank Ltd. was not made a party. Instead the Secretary of the Bank was made a party. The Kerala Co-operative Tribunal did not notice the fact that the society was not a party to the revision petition, but it proceeded to examine the merits of the contentions and held that the award was passed with notice to the petitioners and after affording them an opportunity of being heard and therefore, the challenge to the award on the ground that it was passed without affording the petitioners an opportunity of being heard, has no factual or legal foundation. The Kerala Co- operative Tribunal held that the testimony tendered by the Secretary of the plaintiff bank who was examined as PW1, stands unchallenged and the petitioners have not disputed the W.P(C).No.33833 of 2011 -:3:- correctness and authenticity of the entries in the ledger which was also marked and therefore the challenge to the award on the ground that it is not supported by evidence cannot be sustained. The Kerala Co-operative Tribunal however reduced the rate of future interest from 16% per annum payable on the sum of Rs.5,18,631/-, the amount due as on the date of the plaint and directed that the petitioner need pay future interest only on the principal sum of Rs.3,00,000/- at 14% per annum from the date of the award (29.6.2010) till realisation. 4. I heard Sri.K.G.Anil Babu, learned counsel appearing for the petitioner. I have also gone through the pleadings and the materials on record. In my opinion this writ petition is liable to be dismissed on the short ground that the Poothakkulam Service Co- operative Bank Ltd., which was the plaintiff in the arbitration case, was not made a party to the revision petition filed before the Kerala Co-operative Tribunal. Instead,the Secretary was joined as a respondent in the revision petition. Nor is the bank a party to this writ petition. In my opinion without the plaintiff bank on the party array, no relief can be granted in this writ petition. On the same reasoning the Kerala Co-operative Tribunal also could not have granted any relief. However, I refrain from dismissing the W.P(C).No.33833 of 2011 -:4:- writ petition on that ground. 5. Ext.P2 order passed by the Kerala Co-operative Tribunal discloses that the petitioners were served with notice in the arbitration case, that they had appeared through counsel, but thereafter did not participate in the proceedings. The Arbitrator was therefore, perfectly justified in proceeding ex parte and in disposing of the arbitration case. Since the evidence before the Arbitrator was unchallenged and the petitioners did not dispute the genuineness and authenticity of the documents produced by the plaintiff bank, they cannot be heard to contend that the award was passed without notice to them or that they did not get an opportunity to adduce evidence. That apart, the petitioners have no case that they were not aware of the award. An appeal lies from the award passed by the Arbitrator to the Kerala Co- operative Tribunal. The petitioners did not however, choose to file an appeal. Instead, after the period prescribed for filing the appeal expired, they filed a revision petition before the Kerala Co- operative Tribunal. Notwithstanding the fact that the revision petition was bad for non-joinder of the plaintiff bank, the Tribunal examined the contentions put forward by the revision petitioners and repelled all the contentions except the contention regarding W.P(C).No.33833 of 2011 -:5:- rate of interest. As regards that aspect of the matter the Tribunal also gave substantial relief to the petitioners. On an over all view of the matter I am of the opinion that the petitioners who did not choose to appear before the Arbitrator in time and did not participate in the proceedings, cannot be heard to contend that no opportunity was afforded to them to contest the claim before Ext.P1 award was passed. I therefore, find no grounds to entertain the writ petition. The writ petition fails and is accordingly dismissed in limine. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.33833 of 2011 ---------------------------- JUDGMENT 19th December, 2011