IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 WP(C).No. 18700 of 2010(J) -------------------------- PETITIONER(S): --------------- P.SUNDERDAS, KANNUR ROLLER FLOUR MILLS, 6/651, BIGBAZAR, KOZHIKODE. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): --------------- 1. THE KERALA STATE CO-OPERATIVE MARKETING FEDERATION LIMITED, GANDHINAGAR, COCHIN-20. 2. THE SECRETARY, KERALA ROLLER FLOUR MILLERS ASSOCIATION, TC 13/733, PALMGROVE GAS HOUSE LANE, KUNNUKUZHY, THIRUVANANTHAPURAM. 3. STATE OF KERALA REPRESENTED BY SECRETARY TO CO-OPERATIVE DEPARTMENT, TRIVANDRUM. 4. ASST.REGISTRAR/SPECIAL ARBITRATOR-CUM- SALE OFFICER, KERALA STATE CO-OPERATIVE MARKETING FEDERATION LTD., KOCHI-20. 5. KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR.K.C.SANTHOSH KUMAR ADV. SRI.MILLU DANDAPANI FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.SURENDRA MOHAN, J. -------------------------------- W.P.(C).No.18700 of 2010 ---------------------------------------- Dated this the 21st day of June, 2010 JUDGMENT This writ petition filed by the petitioner challenging Ext.P4 order of the Kerala Co-operative Tribunal, Thiruvananthapuram in R.P.No.122/2006. The petitioner had filed the revision petition challenging an award passed by the Assistant Registrar, Kerala State Co-operative Marketing Federation, Cochin, in his capacity as Arbitrator in Arbitration Case No.184/2002. The award was passed after declaring the petitioner ex parte. 2. The first respondent had entered into an agreement with the petitioner and the 2nd respondent for the purchase and supply of wheat. The wheat was required for being supplied to the 3rd respondent. According to the 1st respondent, an amount of Rs.16,81,381.45/- was due from the petitioner and the 2nd respondent under the agreement referred to above. It was further alleged that the amount of sales tax payable was also not paid by the petitioner and W.P.(C).No.18700 of 2010 2 the 2nd respondent. Therefore, a total amount of more than Rs.17 lakhs was claimed by the 1st respondent. 3. Though the petitioner had filed a written statement as well as an additional written statement and had produced documents, he subsequently remained absent. Therefore, after adjourning the case on a number of occasions, the petitioner was set ex parte and an award was passed in favour of the first respondent allowing recovery of the entire amount that was claimed. The petitioner challenged the award, by filing a revision petition before the Kerala Co-operative Tribunal, Thiruvananthapuram. The Tribunal considered the matter afresh and has passed Ext.P4 order rejecting the contention of the petitioner, as per the award Ext.P3. The petitioner has filed a writ petition challenging both Ext.P3 award as well as the order in revision, Ext.P4. 4. According to the learned counsel for the petitioner, the wheat that was supplied was not of good quality and therefore, the first respondent is not entitled to recover the W.P.(C).No.18700 of 2010 3 entire amount that was claimed by it. According to the counsel, the petitioner is in possession of documents to prove his case, which could not be produced before the Assistant Registrar before Ext.P3 award was passed. The counsel therefore requested for the grant of another opportunity to adduce evidence and to contest the claim of the 1st respondent on the merits. 5. Advocate Sri.Millu Dandapani appears for the 1st respondent. The counsel points out that the award, Ext.P3 was passed in 2005 and the order in revision has been passed in January 2010. It is submitted that the delay has caused financial loss to the first respondent because amounts due to it is being retained by the petitioner and the 2nd respondent without any justification. If at all the petitioner is to be given a fresh opportunity to contest the matter on the merits, such an opportunity may be granted only on his depositing a portion of the amount that is claimed, to prove his bonafidies. 6. Since it is submitted by the counsel for the W.P.(C).No.18700 of 2010 4 petitioner that the petitioner has sufficient evidence to substantiate his contentions and that he was prevented by circumstances beyond his control from producing them before the 4th respondent at the time of passing Ext.P3 award, I feel that an opportunity can be given to the petitioner. Since the stakes involved is substantial, I feel that an inquiry into the claim of the 1st respondent on the merits is necessary in the interests of justice. But, the petitioner would have to prove his bonafides by depositing a portion of the amount claimed by the first respondent, for availing the benefit of such an opportunity. 7. In the above circumstances without going into the merits of the rival contentions raised by the parties, I set aside Ext.P3 award as well as the Order of the Tribunal, Ext.P4. I remit the matter to the 4th respondent for fresh consideration and disposal of the matter in accordance with law, after giving an opportunity to the petitioner to produce documents and to adduce oral evidence if necessary. However, the petitioner shall be given such an opportunity W.P.(C).No.18700 of 2010 5 only if the petitioner pays an amount of Rs. 5 lakhs (Rupees five lakhs only) to the first respondent within a period of one month from today and produces receipt of such payment before the fourth respondent. It is made clear that if the payment as stipulated above is not made, the above order shall become inoperative. If the deposit of Rs.5 lakhs mentioned above is made, the 4th respondent shall consider the contentions of the petitioner on the merits and shall finally dispose of the matter as expeditiously as possible and at any rate within a period of two months from the date of such deposit. The petitioner shall produce a copy of this judgment before the authority for compliance. K.SURENDRA MOHAN, JUDGE. mns. W.P.(C).No.18700 of 2010 6