IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 16453 of 2009(B) -------------------------- PETITIONER(S): --------------- BABU T.S/O.THANKAPPAN,AGED 43 YEARS, MANGALATH HOUSE,MANIYARANKUDY, IDUKKI DIST. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): --------------- 1. THE DEPUTY DIRECTOR, DIARY DEVELOPMENT DEPARTMENT, THODUPUZHA, IDUKKI DISTRICT. 2. MANIYARAMKUDY KSHEEROLPADAKA CO-OPERATIVE SOCIETY LTD.,NO.(I)105(D), REPRESENTED BY ITS SECRETARY, MANIYARAMKUDY, IDUKKI DISTRICT. ADV. SRI.GEORGEKUTTY MATHEW FOR R2 MR.K.C.SANTHOSHKUMAR, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/08/2009, ALONG WITH WP(C) NO.22602/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.16453/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF ORDER OF THE KERALA CO-OPERATIVE TRIBUNAL, TRIVANDRUM DATED 24/11/2006 IN R.P.NO.544/2003. P2 : COPY OF JUDGMENT DATED 13/06/2008 IN WP(C) NO.17736/2008 OF THIS HONOURABLE COURT. P3 : COPY OF AWARD OF THE ARBITRATOR/FIRST RESPONDENT DATED 26/09/2008 IN ARC NO.17/2003. P4 : COPY OF NOTICE ISSUED TO THE PETITIONER DATED 24/12/2008 BY R2. P5 : COPY OF REPLY SUBMITTED BY THE PETITIONER DATED 12/01/2009 TO EXT.P4 NOTICE. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.16453 & 22602 of 2009 --------------------------------- Dated, this the 21st day of August, 2009 J U D G M E N T The parties and the issue being common, these writ petitions are heard together and disposed of by this common judgment. 2. The petitioner in WP(C) No.16453/2009 was a Salesman working under the 2nd respondent Society, which has filed WP(C) No.22602/2009. On the allegation that towards the milk purchased from the Society, the Salesman had incurred a liability of Rs.92,606.25 for the period from 20/06/2002 to 12/09/2002, the Society filed ARC No.17/03 before the Arbitrator. By an interim order, his property was also attached. Finally, the Arbitrator passed an award in favour of the Bank, against which the Salesman filed a revision before the Co-operative Tribunal as R.P.No.544/04. By order dated 24/11/2006, the revision was disposed of remitting the matter to the Arbitrator for fresh disposal after affording an opportunity to the parties to contest the case. 3. Thereafter, pursuant to the judgment of this Court in WP(C) Nos.16453 & 22602 of 2009 -2- WP(C) No.17736/2008, the proceedings before the Arbitrator were expedited and by Ext.P3 award rendered on 26/09/2008, the Arbitrator held that as against the liability of Rs.92,606.25, as per Ext.D4 receipts produced by the Salesman, he had already paid an amount of Rs.1,02,700/-, and thus had discharged the liability. The list of documents proved before the Arbitrator and mentioned in the Award show that 14 documents were produced by both sides, which include audit reports for the period 2000-01, 2001-02 and 2002-03 as well. The award has become final. 4. Thereafter, the Society issued Ext.P4 notice dated 24/12/2008 informing the Salesman that an amount of Rs.92,321.75 was due from him towards the milk purchased for the period from 19/02/2001 to 12/09/2002. He disputed the liability by filing a reply dated 12/01/2009. Despite that, the Society proceeded with the matter, and therefore WP(C) No.16453/2009 was filed by the Salesman. 5. In so far as WP(C) No.22602/2009 is concerned, this writ petition is filed by the Society against the Salesman. What the Society complains is that pursuant to the above referred notice that WP(C) Nos.16453 & 22602 of 2009 -3- was issued by it on 24/12/2008, when payment was not made by the Salesman, they filed Ext.P5, an arbitration case before the Arbitrator for realising Rs.92,321.75 for the period from 19/02/2001 to 12/09/2002. It is stated that along with the ARC, they also filed an I.A. for attachment of the properties of the Salesman. It is stated that despite the appointment of an Arbitrator, he did not consider the application for attachment, and therefore, WP(C) No.22602/2009 has been filed, praying for a direction to the Arbitrator to expedite orders on the I.A. praying for attachment. 6. From the facts narrated above, it is evident that ARC No.17/03 was filed by the Society against the Salesman for recovering an amount of Rs.92,606/-, which was allegedly due from the Salesman for the period from 26/02/2002 to 12/09/2002. A reading of the award shows that the Society do not have a case that any further liability was due from the Salesman. The case was considered, and finally by award rendered on 26/09/2008, the Arbitrator accepted the contention of the Salesman that he had already paid amount in excess of what was claimed by the Society. The award has become final and it is long thereafter, that on the WP(C) Nos.16453 & 22602 of 2009 -4- averment that further sums are due and that too for the period covered by the award dated 26/09/2008, fresh arbitration proceedings are again launched by the Society against the Salesman. In my view, this is impermissible. Although, except the provisions of the Civil Procedure Code, which are made applicable as per Section 70(3) of the Kerala Co-operative Societies Act, CPC as such cannot be applied to the arbitration proceedings, still every claim made before an Arbitrator should include all the claims, which the plaintiff is to make in respect of the cause of action. In this case, the cause of action that was available to the Society was the default committed by the Salesman in paying the money that he owed to the Society towards the value of the milk purchased by it. This claim was considered and award dated 26/09/2008 has been rendered. That award has become final. If so, even if the Society had any further claim against the Salesman that have not been urged or given up in the Arbitration proceedings already launched, the Society cannot be permitted to initiate fresh Arbitration proceedings against the Salesman. Even otherwise, pleadings in the proceedings resulting in the Arbitration Award dated 26/09/2008 WP(C) Nos.16453 & 22602 of 2009 -5- show that the Society did not have a case that any further amount was due from the Salesman. If that be so, the present Arbitration proceedings launched by the Society against the Salesman, which led the Salesman to file WP(C) No.16453/2009 is misconceived and is an abuse of process of KCS Act, and the Arbitrator is not liable to take cognizance of the same and proceed further in the matter. Necessarily therefore, this Court will not be justified in granting the relief sought for by the Society in WP(C) No.22602/2009, requiring the Arbitrator to consider Ext.P6 therein, the I.A. filed by the Society for attaching the properties of the Salesman, Shri.Babu.T, who is the petitioner in WP(C) No.16453/2009. Therefore, WP(C) No.16453/2009 will stand allowed, and WP (C) No.22602/2009 will stand dismissed. (ANTONY DOMINIC, JUDGE) jg