The President vs Santhosh Kumar
2021 Latest Caselaw 912 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

            THE HONOURABLE MR. JUSTICE SUNIL THOMAS

    MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                    WP(C).No.27713 OF 2020(L)



PETITIONER/S:

      1     THE PRESIDENT, MANAGING COMMITTEE OF PERUVEMBA
            SERVICE CO-OPERATIVE BANK LTD. NO. F-1648
            P.O.PERUVEMBA, PALAKKAD-678 531

      2     THE SECRETARY, PERUVEMBA SERVICE CO-OPERATIVE
            BANK LTD, NO.F 1648, P.O.PERUVEMBA, PALAKKAD-678 531

            BY ADVS.
            SRI.M.P.ASHOK KUMAR
            SHRI.ASIF N
            SMT.BINDU SREEDHAR

RESPONDENT/S:

      1     SANTHOSH KUMAR, S/O.DANDAPANI, SWASTHAM, RUGMINI
            NIVAS, DEVANKATHERUVU, PALATHULLY, PERUVEMBU,
            PALAKKAD-678 531

      2     THE CO OPERATIVE ARBITRATION COURT (NORTHERN)
            HOUSEFED COMPLEX, 5TH FLOOR, SASTHRI NAGAR ROAD,
            ERANJIPALAM P.O., KOZHIKODE-673 006.

      3     SUJATHA, UPPUPADAM HOUSE, MAMBRAM,
            KINNASSERI, PALAKKD-678 531

      4     SENTHIL KUMAR.D., DHINAKAR NIVAS, KALLANCHIRA,
            PERUVANMBA, PALAKKAD-678 531.

      5     VIPIN DAS, CHERAPOTTA HOUSE,
            PERUMVAMBA ,PALAKKAD-678 531

      6     VALSAN, PARAMBAKKADU HOUSE, PERUMVAMBA ,
            PALAKKAD-678 531

      7     KALADHARAN, UPPUMPADAM, KINASSERI P.O.,
            PALAKKAD-678 701.
 WP(C).No.27713 OF 2020(L)
                                 2

      8      SURESH KUMAR, ANVIYYA NIVAS, CHIRAYANKAADU,
             PERUVAMBA P.O., PALAKKAD-678 531

             R3, R5-6, R8 BY ADV. SRI.R.RENJITH
             R4 BY ADV. R.RENJITH
             R1 & R2 SR.GP K.P HARISH

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.27713 OF 2020(L)
                                3




                            JUDGMENT

The petitioners are the President and Secretary of the

Peruvemba Service Co-operative Bank Ltd. ARC

proceedings were initiated as ARC.No.69 of 2017 by the

first respondent herein against the Society and few others.

The petitioners who were the defendants 1 and 2

appeared and filed written statement. The case stood

posted to 26.11.2018. It seems that the petitioners were

set exparte on that day. Thereafter, on coming to know

about the exparte order, an application was filed on

09.07.2019 to condone the delay and to set aside the

exparte order, supported by an affidavit affirmed by the

counsel. It was stated by the counsel that, on 26.11.2018

he was proceeding to Calicut to attend the case, and since

the train was late, he had instructed a lawyer to represent

on his behalf. On a belief that counsel has properly

represented, he continued to participate in the

proceedings thereafter till 09.07.2019, on which day he

came to know about the exparte order on 26.11.2018. WP(C).No.27713 OF 2020(L)

Thereafter an application was filed on 09.02.2019. That

application was dismissed by the court, holding that the

delay was not properly explained. This is under challenge

in this proceedings.

2. Heard the learned counsel for the petitioner and

the learned counsel for the respondents. It seems that

the learned counsel for defendants had specifically stated

in the affidavit that he was travelling by train on

26.11.2018 and on realising that the train was running

late, he had authorised a lawyer to represent. He had

specifically averred that he was under the impression that

proper representation was made on that day and

thereafter he continued to participate, without knowing

that he was declared as exparte.

3. It seems that the petitioners have explained the

reason for the delay. It seems that the petitioners were

prompt in contesting the proceedings before the court

below, essentially since written statement was filed and

almost on every posting day, the petitioners were WP(C).No.27713 OF 2020(L)

represented by the counsel. This fact is not in dispute.

4. Having considered the entire facts I am not able

to accept the reasoning given by the court below and the

impugned order naturally is liable to be set aside. In the

result, Ext.P5 order is set aside. IA.No.113/2019 in

ARC.No.69 of 2017 will stand allowed and the

Co-operative Arbitration Court (Northern) shall take up the

matter and proceed in accordance with law and pass

appropriate orders, after giving opportunity to both sides

to contest the proceedings. Both sides shall appear before

the authority on the next posting date.

Writ Petition is disposed of.

Sd/-

SUNIL THOMAS, JUDGE

R.AV WP(C).No.27713 OF 2020(L)

APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1 PHOTOCOPY OF THE PLAINT DT 30.03.2017 FILED BY THE 1ST RESPONDENT AS ARC 69 OF 2017 BEFORE 2ND RESPONDENT

EXHIBIT P2 PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE BANK DT 27.10.2019 IN ARC 69 OF 2017 BEFORE 2ND RESPONDENT

EXHIBIT P3 PHOTOCOPY OF THE IA 113 OF 2019 DT 09.07.2019 FILED BY THE BANK IN ARC 69 OF 2017 PENDING BEFORE 2ND RESPONDENT

EXHIBIT P4 PHOTOCOPY OF THE OBJECTION TO EXHIBIT P3 FILED BY THE 1ST RESPONDENT DT 21.08.2019

EXHIBIT P5 PHOTOCOPY OF THE PLAINT ORDER DT 11.11.2020 IN IA 113 OF 2019 IN ARC 69 OF 2017 PASSED BY THE 2ND RESPONDENT

RESPONDENT'S/S EXHIBITS NIL