IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 WA.No. 1220 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.15229/2009 Dated 05/06/2009 .................... APPELLANT/PETITIONER ------------------------ K.C.MATHEW, AGED 49 YEARS, S/O.CHACKO, THURUTHI ROAD, ANANGOOR, KASARAGOD, KASBA VILLAGE, KASARAGOD DISTRICT. BY ADV. SMT.C.G.PREETHA RESPONDENTS/RESPONDENTS: --------------- 1. THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. 2. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KASARAGOD. 3. MUHAMMAD ALI, S/O.MAHIN HAJI, "NISHAD", GUDDE TEMPLE ROAD, ADKATHBAIL, KASARAGOD. SRI.GOVT.PLEADER, SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A. No.1220 OF 2009 ------------------------------- Dated this the 15th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant is the writ petitioner. The Writ Petition was filed by him challenging Ext.P1 award of the Arbitrator under Section 69 of the Kerala Co-operative Societies Act in ARC No.318/2005 and also Ext.P2 order of the Kerala Co-operative Tribunal affirming Ext.P1. 2. The case of the 3rd respondent was as follows: He was a member of the Managing Committee of the Kasargod Service Co-operative Bank. He and his son were the sureties for a loan availed of by the writ petitioner. Since the writ petitioner defaulted to pay the loan amount, the 3rd respondent was facing disqualification. In that context, he cleared the loan amount and thereafter, filed the ARC against the writ petitioner for repayment of the amount deposited by him in the writ petitioner's loan account. Before instituting the arbitration case, he issued a lawyer notice to the writ petitioner, to which no reply W.A No.1220/2009 2 was sent. The Arbitrator, taking evidence and after hearing both sides, decreed the arbitration case. The aggrieved writ petitioner moved the Kerala Co-operative Tribunal by filing A.P.No.20/2007 and the same was dismissed by Ext.P2. The consistent case of the writ petitioner was that he never availed any loan from the Kasargod Service Co-operative Bank. The 3rd respondent must have forged the signature of the writ petitioner and availed a loan. Therefore, the writ petitioner is not liable to pay any amount to the 3rd respondent, it was contented. 3. Both the authorities below concurrently found that the said case of the writ petitioner is not acceptable. The Tribunal dealt with the matter in paragraphs 7 to 10 of Ext.P2. The said relevant portion of Ext.P2 reads as follows: “7. The point:- Suit for realisation of money on account of loan transaction alleged to have availed by the appellant defendant on 11.10.2002 from the Kasargod Service Co- operative Bank to which plaintiff alleged to have stood as surety. Plaintiff produced photo copies of loan application, surety bond, receipts dated 22.02.2005, 5.3.2005, advocate notice dated 9.9.2004 certificate to satisfaction dated 5.3.2005 of the Kasargod W.A No.1220/2009 3 Service Co-operative Bank, show cause notice dated 9.2.2005 of the Joint Registrar and copies of letters dated 21.2.2005 and 9.1.2004. The Arbitrator also issued notice to the Secretary of the bank calling upon him to produce original records in respect of the alleged loan transaction. None of the records exhibited. Even though plaintiff and defendant were examined the oral evidence of witnesses not numbered. Hence for the sake of convenience by invoking Rule 115 of the Kerala-Co-operative Societies Rules the copies of the records marked as Ext.P1 to P8 original records marked as Ext.X1 to X6 and the oral evidence of the plaintiff numbered as PW1 and that of defendant numbered as RW1. 8. Ext.P1 to P5 would show that the Kasargod Service Co-operative Bank sanctioned loan of Rs.25,000/- in the name of the defendant to which the plaintiff as well as his son stood of sureties. PW1 would say that there has been default from the side of the defendant and hence he remitted the entire loan amount so as to avoid the society from disqualifying his membership. In Ext.P1 to P3 both plaintiff and defendant as well as Mohammed Nias seen subscribed their signatures. P3 to P5 would show that plaintiff has remitted an amount of Rs.33512/- towards the loan transaction and closed the transaction on 5.3.2005. Ext.P8 would show that there was proper demand from the side of the plaintiff. In fact the defendants issued no reply to Ext.P8. X1 to X5 are the W.A No.1220/2009 4 original records in respect of P1 to P3 and X6 is a copy of letter dated 1.3.2005 issued to the appellant calling upon to close the account. PWs 1 and 2 would say that the defendant actually availed loan and executed P1 to P3. It was denied and disputed by the appellant/defendant and would contend that he did not avail loan from the Bank nor did he execute X1 to X3. However, he did not deny Ext.X5 and X6. He would further say that he availed loan from the Mercantile Co-operative Society from which the records were collected by the plaintiff committed forgery and availed loan from the Kasargode Service Co-operative Bank. He would deny his signatures Exts.X1 to X3. 9. In fact the burden is heavily cast upon the plaintiff to convince the fact that defendant has availed the loan and executed X1 to X3. Once the plaintiff succeeded to convince the same, then the burden shifted to the appellant to prove that Ext.X1 to X3 are products of forgery. Oral evidence of PWs 1 and 2 and Ext.X1 to X3 would reveal that actually there was loan transaction between Kasargode Service Co-operative Bank as well as plaintiff and defendant. Though PWs 1 and 2 were vehemently cross examined nothing was elicited to discredit the veracity of their testimony in this regard. The failure of the defendant to issue reply to Ext.P8 and X6 also lead to suspicion, that the case set up by him is not true. Excepting the bald contentions in the written statement no attempt was made W.A No.1220/2009 5 by the defendant to examine any witness or to adduce evidence strong enough to prove that Ext.X1 to X3 are vitiated by forgery. No records from the Mercantile Service Co- operative Society even produced by defendant to substantiate his case. Therefore I hold that the defendant has miserably failed to prove his case that Ext.X1 to X3 are unsupported by consideration. 10. Then the question is as to whether the defendant succeed to prove that he did not avail loan from the bank. In fact no attempt was made the defendant to convince the fact that the consideration Ext.X1 to X3 are infact received by plaintiff himself. He had taken no steps to examine the custodian of Ext.X1 to X3 to substantiate his case. Further had the case set up by the defendant true he would have taken steps to call for expert opinion with regard to Ext.X1 to X3. Hence I hold that the case set up by the defendant is not true and it cannot be believed.” The above quoted portion of Ext.P2 would show that the writ petitioner's case has been considered by the Tribunal fairly and a decision supported by reasons has been rendered. 4. The learned Single Judge found that the findings of the Arbitrator and Tribunal are findings of fact, which cannot be W.A No.1220/2009 6 disturbed in a Writ Petition filed under Article 226 of the Constitution of India. Feeling aggrieved by this finding, the Writ Appeal is filed. 5. Going through the relevant portion of Ext.P2, which is quoted above, we find that the decision of the Tribunal can in no way be described as illegal or irrational or based on no evidence. The Tribunal has given cogent reasons to reject the case the appellant that he has not availed any loan from the Kasargod Service Co-operative Bank. Even if, we were exercising the appellate power over the decision of the Tribunal, we would not have interfered with the aforementioned finding. So, this is not a fit case for invoking the jurisdiction of this Court under Article 226 of the Constitution of India. So, the learned Single Judge has rightly dismissed the Writ Petition. Accordingly, the Writ Appeal also fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps