IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18700 of 2010(J)
1. P.SUNDERDAS, KANNUR ROLLER FLOUR MILLS,
... Petitioner
Vs
1. THE KERALA STATE CO-OPERATIVE
... Respondent
2. THE SECRETARY, KERALA ROLLER FLOUR
3. STATE OF KERALA REPRESENTED
4. ASST.REGISTRAR/SPECIAL ARBITRATOR-CUM-
5. KERALA CO-OPERATIVE TRIBUNAL,
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent :SRI.MILLU DANDAPANI
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :21/06/2010
O R D E R
K.SURENDRA MOHAN, J.
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W.P.(C).No.18700 of 2010
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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
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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
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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.
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