IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FOURTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No. 4319 OF 2009 Between: M/s. Bang Agencies, rep. By proprietor Mr. Mukundas Bang, Hyderabad and others ......petitioners AND A.P.Mahajan Co-operative Urban Bank Ltd. Rep.by its Chief Executive Officer, Secunderabad and others. ......Respondents Counsel for the petitioners: Counsel for the Respondents: The Court made the following:- THE HON'BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No. 4319 OF 2009 ORDER: W.V.M.P. No.2624 of 2009 is filed by respondent No.1 in the writ petition as vacate petitioner praying for vacation of the order of stay granted by this Court on 04.03.2009 in W.P.M.P.No.5661 of 2009 in W.P.No.4319 of 2009. 2. At the stage of hearing of the vacate petition, the Counsel on record made a request for the disposal of the writ petition itself and hence the writ petition itself is being disposed of finally by this Court today. 3. This Court issued rule nisi on 04.03.2009 and in W.P.M.P.No.5661 of 2009, as already aforesaid, granted interim stay as prayed for. 4. Sri Dinesh Kumar Gilda, learned counsel representing the writ petitioners had taken this Court through the contents of the order of remand made by the Andhra Pradesh State Co-operative Tribunal at Hyderabad and would maintain that in the facts and circumstances of the case, the order of remand made by the Tribunal is unjust and the said Andhra Pradesh State Co-operative Tribunal at Hyderabad, in stead of making an order of remand, could have decided the quantum of interest. The learned counsel also would maintain that the direction to the arbitrator to give opportunity to both parties to adduce oral and documentary evidence also cannot be sustained for the reason that even as can be seen from the controversy between the parties, the only limited question to be decided is relating to the quantum of interest and nothing beyond thereto and hence in stead of making an order of remand, the Andhra Pradesh State Co-operative Tribunal, Hyderabad as well could have decided this question and hence appropriate directions to be issued by this Court in the present writ petition. 5. The learned A.G.P. for Cooperation had pointed out to the relevant portions of the order under challenge made by the Andhra Pradesh State Co-operative Tribunal, Hyderabad and would maintain that in the light of the reasons recorded by the Andhra Pradesh State Co-operative Tribunal, it cannot be just and proper to interfere with such an order while exercising powers under Article 226 of the Constitution of India. 6. Sri M.V.Durga Prasad, the learned counsel representing respondent No.1 had taken this Court through the contents of the counter affidavit filed along with W.V.M.P. No.2624 of 2009 and would maintain that the object of the writ petitioners in approaching this Court and obtaining the interim stay is only to prolong the payment to be made and hence in the facts and circumstances, this is not a fit matter to be interfere with. 7. Heard the counsel. Perused the order under challenge and also the other material papers placed before this Court. Certain calculations and other particulars also had been placed before this Court. 8. In the light of the submissions made by the counsel on record, the point which falls for consideration to be decided in the writ petition is as hereunder: “Whether the order of remand made by the Andhra Pradesh State Co- operative Tribunal at Hyderabad in C.T.A.No.332 of 2003 be sustained or to be disturbed in the facts and circumstances of the case? 9. The present writ petition is filed for a writ of Certiorari directing respondent No.3- A.P.State Co-operative Tribunal, Hyderabad (hereinafter, in short, referred to as “the Tribunal” for the purpose of convenience) to pass appropriate orders on merits whereby quashing the orders made in C.T.A.No.332 of 2003 dated 03.11.2008 by making an order of remand to the arbitrator-respondent No.2 for fresh disposal and pass such other suitable orders. 10. Petitioner No.1 had sworn to the affidavit filed in support of the writ petition. It is averred in para-3 of the affidavit filed in support of the writ petition that the petitioners having pleaded with regard to the erroneous orders made by the arbitrator, originally in A.R.C.No.232 of 2002 by the sole arbitrator as the same was passed on erroneous grounds but, however, the same was made after due enquiry. It is also stated that originally the arbitrator passed award way back in the year 2003 against which an appeal was preferred. Since nothing was considered and no opportunity was given to the writ petitioners to adduce evidence, the matter was remanded to the arbitrator for considering the same afresh and thereafter after recording due evidence, the arbitrator made an order dated 31.03.2003. The said award had been challenged by way of appeal in C.T.A.No.332 of 2003. It is also the case of the writ petitioners that during the pendency of the appeal, the petitioners had deposited entire amount as claimed under the application but without interest since the award was made by the arbitrator without any interest. The Tribunal without considering the said aspect, once again made an order of remand to the arbitrator for clarification with a direction permitting the parties to adduce further evidence. It is also the case of the petitioners that the matter is kept pending for sufficiently a long time and for no fault of the writ petitioners, the further amounts were being imposed and in that view of the matter, by virtue of the order of remand made by the Tribunal the writ petitioners would be put to serious loss. 11. In the counter affidavit filed on behalf of respondent No.1 it is averred that the of petitioner No.1 availed two credit facilities as C.C limits initially up to a limit of Rs.5,00,000/- which was subsequently increased to Rs.9,50,000/- (5,00,000 regular limit + 4,50,000 Adhoc limit for a period of one month). As the petitioner committed default, respondent No.1 filed A.R.C.No.232/02/J1 before the respondent No.2 against the petitioners and his guarantors and also against respondent No.4 - the Hyderabad Agricultural Co-operative Association Limited (HACA). Respondent No.2 passed the award on 31.03.2003 in A.R.C.No.232/02/J1 in favour of respondent No.1 Bank for a sum of Rs.6,98,954.20 ps., with further interest from 01.11.2002. Respondent No.2-Arbitrator further held that respondent No.1-Bank has nothing to do with the dispute between the petitioners and respondent No.4. In view of the clear admissions made by the petitioners in A.R.C.No.232/02/J1 accepting the liability to respondent No.1-Bank, the award was passed jointly and severally against the petitioners and also against the mortgaged property. 12. It is also stated that the petitioners filed O.S.No.21 of 2003 for recovery of money of Rs.10,57,650/- before the III Additional Chief Judge, City Civil Court, Hyderabad, against respondent No.4 and also impleaded respondent No.1-Bank. The petitioners’ application for interim injunction was dismissed. 13. It is also stated that the petitioners refused to receive the copy of the award sent by registered post. Respondent No.1-Bank filed E.P.No.238 of 2003 before the Arbitrator for execution and the Sale Officer was appointed by an order dated 30.06.2003. The Sale Officer has issued demand notice as required under Rule 52(11)(b) and (c) of Andhra Pradesh Co-operative Society Rules, 1964 on 23.08.2003. At that stage, the petitioners filed C.T.A.S.R.No.5806 of 2003 along with an application to condone the delay. The petitioners also filed I.A.S.R.No.5808 of 2003 for stay of execution of proceedings, though the said application is not maintainable pending condone delay petition. 14. It is also stated that respondent No.3 Tribunal, took note of the Judgment of this Court reported in 2003(3) ALD 423 and also the order of the Civil Court in O.S.No.21 of 2003 and dismissed the stay petition while observing that if the petitioners are inclined to deposit 50% of the amount, the application for stay may be renewed. Against the said order, petitioner No.1 filed W.P.No.18515 of 2003 and an ex-parte order dated 02.09.2003 was obtained on the condition that the petitioner shall deposit a sum of Rs.2,50,000/- within four weeks. 15. It is also further stated that in the meanwhile, petitioner No.1 got filed another suit in the name of his brother in O.S.No.863 of 2003 on the file of the Junior Civil Judge, City Civil Court, Secunderabad, with a false claim along with I.A.No.1269 of 2003 seeking ad-interim injunction restraining respondent No.1 from proceeding with the attachment and sale of the mortgaged property in pursuance of the award. 16. It is also stated that respondent No.1-Bank has been making every endeavour to run the Bank in most adverse market conditions brought about by the failure of some co-operative banks and the adverse publicity about the co-operative Banks in the newspapers. This is possible only on account of the utmost financial discipline maintained by respondent No.1-Bank. 17. It is also stated that the willful defaulter like the petitioner herein have been scuttling the efforts being made by the management of respondent No1-Bank, by resorting to frivolous and vexatious litigations in different fora with false claims. It is stated that the petitioners were given sufficient opportunity to contest the case before respondent No.2-Arbitrator on merits which is evident from the Award passed by respondent No.2-itself. 18. It is also stated that the petitioner has paid Rs.1,50,000/- on 20.10.2004; Rs.50,000/- on 05.01.2005; and Rs.3,00,000/- on 30.03.2005 and as such in total Rs.5,00,000/- only paid by the petitioners as on date, whereas respondent No.2 Award amount itself is Rs.6,98,954.20 ps as on 30.09.2002 plus interest from 01.11.2002. Thus, the petitioner failed to comply with the conditional order of this Court for stay, in spite of granting several extensions of time by this Court. 19. It is also stated that the Tribunal by impugned order allowed the appeal filed by the petitioner on the ground that the petitioner did not have sufficient opportunity and therefore, the impugned order is to the benefit of the petitioner. The only ground urged in the writ petition is that the petitioner has paid amount fully, which is false. The allegation in the writ petition that the matter was once again remanded was false as it was remanded for the first time at the instance of the petitioner that he had no opportunity before the Arbitrator, who is the original authority. In fact, the Arbitrator had given a very reasoned order, which did not warrant any interference. However, the petitioner filed the present writ petition only to drag the proceedings. 20. Further it is stated that on the first occasion, the order of remand was made to the arbitrator for considering of fresh evidence and thereafter recorded due evidence and the arbitrator made award on 31.03.2003. It is further stated that respondent No.1 filed A.R.C.No.232 of 2002 on the file of respondent No.2-co- operative Sub-Registrar/Arbitrator claiming Rs.6,98,954.20 ps plus interest @ 21% p.a. with quarterly rest from 01.11.2002 against the petitioners and the same was allowed passing Award on 31.03.2003 in favour of respondent No.1-Bank. The petitioners filed Appeal C.T.A.No.332 of 2003 before respondent No.3 and an order of remand was made on 03.11.2008. Several other further facts also had been narrated in paras 8, 9, 10 and 11 of the Counter affidavit as well. 21. The Tribunal formulated the following points for determination in appeal – C.T.A.No.332/2003 at para 5:- i. Whether the award passed in A.R.C.No.232/2002-J1, dated 31.03.2003, is sustainable? ii. To what relief?” 22. The Tribunal referred to Rule 49(4) of the A.P.C.S.Rules, 1964. No doubt recorded reasons while answering points No.1 and 2 at paras 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and ultimately came to the conclusion that the appeal to be allowed and the Award made in A.R.C.No.232/2002/J1, dt.31-3-2003 to be set aside and thus an order of remand was made with certain directions. On a careful analysis of the factual matrix and also the simple question involved relating to the quantum of interest, the Tribunal as could have decided since it is stated by the counsel on record that the parties have no further evidence to be adduce in this regard since it is in relation to the question of quantum of interest only and hence, the order of remand made by the Tribunal is hereby set aside and the matter is remitted to the Tribunal to give opportunity to both the parties to advance submissions relating to this aspect only and also the calculations and record appropriate reasons in this regard, within a period of four weeks from the date of receipt of this Order. 23 Accordingly the Writ Petition is hereby allowed to the extent indicated above. No order as to costs. __________________ P. S. NARAYANA, J 4th November, 2009 Ivd/SMR Note:- C.C. in one week