IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31891 of 2004(V)
1. M.V.NINAN,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
3. THE ASSISTANT REGISTRAR OF CO-OPERATIVE
4. THE SPECIAL SALE OFFICER,
5. THE ADHYAPAKA CO-OPERATIVE BANK LTD.
For Petitioner :SRI.M.J.THOMAS
For Respondent :SRI.P.N.MOHANAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :17/07/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 31891 OF 2004 (V)
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Dated this the 17th day of July, 2009
J U D G M E N T
Petitioner prays for the issuance of a writ of certiorari
quashing Ext.P4, the plaint in ARC 3721/03 filed by the 5th
respondent before the 3rd respondent.
2. Facts of the case as disclosed in the pleadings are that
the petitioner was a member of the 5th respondent society. In
Chitty No.18/81 conducted by the 5th respondent, petitioner had
subscribed one kuri having a sala of Rs.10,000/- The kuri was
prized at the 9th instalment and the petitioner received the prize
money also. It is his case that he paid all the instalments and that
the kuri terminated sometime in 1985.
3. Petitioner retired from service in 1990 and thereafter
an application was made to the 5th respondent to withdraw his
share money. It is stated that by Ext.P1 issued in 1993, on the
basis that the petitioner had no liability towards the 5th
respondent, the entire amount due to him has been released also.
It is also his case that by Ext.P5, the person who stood as surety,
who was also a member of the 5th respondent, got his share
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money also refunded.
4. It is stated that long thereafter, he was issued a notice
calling upon him to make payment of certain amounts to the 5th
respondent and reply was issued disputing the demand.
Petitioner submits that still later by Ext.P4 plaint, the Bank
instituted ARC 3721/03 for realising Rs.17,700/- which includes
Rs.5,200 towards the principal allegedly due, Rs.11,700/- towards
interest and other charges. Counsel contends that the claim urged
in Ext.P4 is a stale claim and that by lapse of time, he is disabled
from defending the case, in as much as he is no longer in
possession of any documents concerning the kuri. It is on this
premise, petitioner prays for quashing Ext.P4 and thus to
exonerate him of the claim made.
5. 5th respondent submits that going by its accounts,
money claimed in Ext.P4 is due from the petitioner and that the
liability of the petitioner was disclosed only when its accounts
were audited. It is stated that the amount claimed is recoverable
and therefore the prayer sought is misconceived. Counsel also
submitted that this Court will not be justified in exercising writ
jurisdiction against the proceedings instituted before a competent
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forum and for that reason also writ petition is to be dismissed.
6. In my view, even if the petitioner has grievance against
the proceedings that are instituted against him, remedy is not one
under Article 226 of the Constitution of India. Proceedings
admittedly are pending before the Arbitrator and petitioner
cannot justifiably complain that the Arbitrator lacks jurisdiction to
entertain the same. So long as proceedings are not bad for want
of jurisdiction, petitioner will have to appear before the Arbitrator
and contest the case. If at all the claim is a stale one or is not
maintainable for any other reasons, it is up to the petitioner to
urge the contentions in the written statement or raise as a
preliminary issue and it is for the Arbitrator to decide on those
issues.
Therefore, the writ petition will stand disposed of leaving it
open to the petitioner to appear before the 3rd respondent and
contest the matter and making it clear that it is for the 3rd
respondent to decide the issue finally.
ANTONY DOMINIC, JUDGE
Rp