High Court Kerala High Court

P.Sunderdas vs The Kerala State Co-Operative on 21 June, 2010

Kerala High Court
P.Sunderdas vs The Kerala State Co-Operative on 21 June, 2010
       

  

  

 
 
  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.
                     --------------------------------
                   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