IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1070 of 2011(G)
1. THE EDAKKAD BLOCK SOCIAL WELFARE
... Petitioner
Vs
1. K.LEELA, W/O.KUMARAN.
... Respondent
2. K.VINOD, S/O.KUMARAN.
3. K.DILEEP, S/O.KUMARAN.
4. K.CHITHRA, D/O.KUMARAN.
5. K.ANOOP KUMAR, S/O.KUMARAN.
6. K.RAMESHAN, S/O.KUNHIKKANAN,
7. C.DASAN, S/O.KUNHIRAMAN,
8. C.M.AJITH KUMAR,
9. THE ASST.REGISTRAR (GENERAL) OF
For Petitioner :SRI.JACOB SEBASTIAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :20/01/2011
O R D E R
P.N. RAVINDRAN, J.
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W.P.(C) No. 1070 of 2011
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Dated this the 20th day of January, 2011
J U D G M E N T
Ext.P1 award passed by the Arbitrator in A.R.C.Nos.357 of
2005 and 4065 of 2006 and Ext.P2 order passed by the Kerala Co-
operative Tribunal in A.P.No.35/2008 are under challenge in this writ
petition. The predecessor-in-interest of respondents 1 to 5 filed
A.R.C.No.357 of 2005 seeking refund of the sum of Rs.65,000/-
covered by Ext.A1 fixed deposit receipt together with interest and
costs. The sixth respondent filed A.R.C.No.4065 of 2006 seeking
refund of the sum of Rs.25,000/- covered by Ext.A2 fixed deposit
receipt together with interest and costs. Upon service of notice from
the Arbitrator, the petitioner herein entered appearance and filed a
statement dated 18.4.2006 contending that the society is not liable to
pay back the amounts alleged to have deposited by respondents. It
was contended that the responsibility to repay the amount is that of
the office bearers of the committee who canvassed such deposits. The
petitioner entered appearance only on that occasion and remained
absent inspite of several postings. Respondents 7 and 8 herein who
were defendants 2 and 3 in the arbitration case admitted the fact that
the plaintiffs had deposited the sum of Rs.65,000/- and Rs.25,000/-
respectively in the petitioner society and it is the responsibility of the
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2
society to pay back the deposit amounts to him. By Ext.P1 award
passed on 26.3.2008, the Arbitrator directed the petitioner society to
pay the amount covered by Exts.A1 and A2 fixed deposit receipts
together with interest and costs. Aggrieved thereby, the petitioner
filed A.P.No.35 of 2008 before the Kerala Co-operative Tribunal. As a
matter of fact, since the claims were independent, the petitioner
ought to have filed two appeals. The Tribunal without noticing that
defect entertained the appeal and dismissed it by Ext.P2 order passed
on 29.7.2010. Hence, this writ petition.
2. I heard Sri.Jacob Sebastian, learned counsel appearing
for the petitioner and Sri.M.A.Asif, learned Government Pleader
appearing for the respondents. I have also gone through the
pleadings and the materials on record. Referring to paragraph 11 of
Ext.P2 order, the learned counsel for the petitioner contended that the
society is not in possession of any records, and therefore, it cannot
be held liable to pay the amounts claimed by respondents 1 to 6. The
learned counsel submitted that as the award passed by the Arbitrator
is an ex parte award, an opportunity may be given to the petitioner to
have the claim decided on the merits.
3. Ext.P1 award discloses that the petitioner society was
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3
served and had entered appearance. It had in fact filed a statement
on 18.4.2006 contending that it is not liable to pay back the amounts
stated to have been deposited and the liability to repay the amounts
is that of the office bearers of the committee who canvassed the
deposits. Though a copy of the said statement has not been placed
on record, it is evident from Ext.P1 award that the contention of the
petitioner was that the office bearers of the committee who canvassed
the deposits should refund the same. The society had no case that
there are no records in its custody to prove the deposits made by
members. Such a plea was raised for the first time only in the
appeal. The plea raised in the memorandum of appeal is also not
clear as a copy thereof has not been produced. It is stated in Ext.P2
that the documents and the counter foils were not handed over to the
new managing committee. That statement would imply the fact that
there are documents to prove the deposits, but they were not handed
over to the new committee. From that averment, it cannot be
inferred that there are no documents at all in the society. Such a plea
which is now sought to be raised cannot, in my opinion, be
entertained. The Arbitrator and the Tribunal have on the basis of the
pleadings and the evidence available in the case, accepted the case
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set out by the plaintiffs. In the absence of any pleading or proof to
the effect that no deposit had in fact been made, the challenge to
Exts.P1 and P2 cannot be entertained.
I accordingly hold that no grounds have been made out
warranting interference with the impugned orders. The writ petition
fails and is dismissed.
P.N. RAVINDRAN,
JUDGE.
nj.