Kerala High Court
The Chalakkudy Service ... vs Shaju Augustin Akkara on 22 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
WP(C) NO. 8197 OF 2021
PETITIONER:
THE CHALAKKUDY SERVICE CO-OPERATIVE BANK LTD.,NO.R.192
CHALAKKUDY, TRISSUR, PIN - 680 307, REPRESENTED BY ITS
SECRETARY.
BY ADVS.
P.P.JACOB
SMT.MARIYAM JACOB
RESPONDENTS:
1 SHAJU AUGUSTIN AKKARA
AKKARA HOUSE, M.G.ROAD, CHALAKKUDY, TRISSUR - 680 307.
2 WILSON AUGUSTIN
AKKARA HOUSE, M.G.ROAD, CHALAKKUDY, TRISSUR - 680 307.
3 ROY AUGUSTIN
AKKARA HOUSE, M.G.ROAD, CHALAKKUDY, TRISSUR - 680 307.
4 GEO JOSE CHERPANATH
KAVALAKKAT HOUSE, CHALAKKUDY, TRISSUR - 680 307.
5 LISSY JOSE CHERPANATH
KAVALAKKAT HOUSE, CHALAKKUDY, TRISSUR - 680 307.
6 THAJI
CHERPANATH HOUSE, KAVALAKKAT, CHALAKKUDY, TRISSUR - 680
307.
7 THOMAS CHERPANATH
S/O.DEVASSY, CHALAKKUDY, TRISSUR - 680 307.
8 THE ARBITRATOR/INSPECTOR OF CO-OPERATIVE SOCIETIES
OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES (G), MUKUNDAPURAM, TRISSUR - 680 307.
9 THE KERALA CO-OPERATIVE TRIBUNAL
NEAR DPI JUNCTION, THIRUVANANTHAPURAM - 695 034
REPRESENTED BY ITS SECRETARY.
W.P.(C) No.8197/2021 2
BY ADV SHIBU JOSEPH
OTHER PRESENT:
SR.GP K.P HARISH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.8197/2021 3
JUDGMENT
Respondents 1 to 7 had availed separate loans from the petitioner bank
by mortgaging their properties. They committed default of repayment.
Consequently, arbitration proceedings were initiated before the 8th respondent.
Separate awards were passed as Exts.P1, P6, P9 and P13 in ARC
Nos.3447/2017, 3451/2017,3471/2017 & 3468/2017. It seems that, in all the
proceedings, respondents 1 to 7 remained absent. Awards were put in
execution and the properties were brought for sale. At that point of time,
challenging the awards, respondents 1 to 7 preferred separate revision
petitions as Revision Petition Nos.16/2020, 17/2020, 18/2020 & 19/2020. By
Ext.P19 common judgment, revisions were allowed and the matter was
remanded for fresh consideration by the Tribunal. This common order of
remand is under challenge in the present proceedings at the instance of the
Bank.
2. Essentially, the Tribunal gave three reasons for setting aside the
award. Firstly, it was held that the respondents were not given effective
opportunity to substantiate their claims. The second reasoning was that the
arbitrator did not consider the question whether the respondents 1 to 7 were
entitled to the benefit of Ext.P20 moratorium issued by the Government. 3rd
reason was that the award passed was a cryptic one and did not indicate
application of mind.
3. Challenging the above findings,It was contended by the learned
counsel for the Co-operative Bank that all the above reasonings were
baseless. It was contended that the respondents were given an opportunity of
being heard and were served with notice. They voluntarily remained absent
from the court. After having remained absent, they cannot now contend that
the court did not give them a reasonable opportunity of being heard. It was
further contended that the Tribunal committed fundamental error by expressing
the view that the first obligation of every arbitrator was to ascertain whether the
respondents therein are entitled for the benefit of any claim. In that
perspective, the view of the Tribunal was that the benefit of Ext.P20 should
have been given in favour of respondents 1 to 7. It was also contended by
the learned counsel for the bank that Ext.P20 did not extend any moratorium
which show non application of mind by the Tribunal.
4. Supporting the order of the Tribunal, the learned counsel for the
respondents contended that the order was a cryptic one, without giving any
evaluation of the materials placed on record or the reasoning for arriving at
that conclusion. It was also contended that the court did not give an
opportunity of being heard. Evidently, respondents 1 to 7 have no case that
they were not served with notice in the arbitration proceedings. If the notice is
served on the respondents 1 to 7 and if they remained absent, it was at their
risk and they cannot now turn round and say that they were not given a
reasonable opportunity of being heard.
5. However, perusal of Ext.P20 shows that, it does not refer to any
moratorium at all. It only declares that certain notified areas were flood
affected areas. Apart from that, there is no reference to any moratorium . No
separate ground is also set up in revision memorandum that the benefit of any
moratorium was not considered by the arbitrator. Having considered the
above, I cannot agree with the reasoning given by the Tribunal to hold that the
benefit of moratorium ought to have been considered by the Arbitrator.
6. However, the impugned awards show a common pattern. In all the
above awards, after referring to the documents which were marked,the
arbitrator proceeded to hold that the facts were seen established from the oral
and documentary evidence. All the awards are similarly worded. Learned
counsel for the respondents 1 to 7 specifically invited my attention to Ext.P1
award, wherein it was stated that the first defendant was present and
defendant/plaintiff was examined. It was not made clear as to whether it was a
plaintiff or the defendant who was examined. In fact, it was the plaintiff who
was examined. Thereafter, in the award, there is a common reference that "
Exts.A, B,C, D & E documents were produced. Plaint's claim stands
established". There is absolutely no reference to the documents which are
produced and impact of each of every document. Though statutory Tribunals,
or quasi judicial authorities, are not expected to pass a detailed
judgment/order nor expected to give reasonings for their conclusion,
judgment/order/award, should convey proper application of mind by the
authority into the evidence, both oral and documentary. That is absent in the
present award. In the award passed by the arbitrator, nature of the evidence
clearly indicates a mechanical way of evaluation of the evidence and total non
application of mind on the evidence adduced. To that extent , I concur with the
conclusion of the Tribunal.
7. Having considered this, I am inclined to modify the remand order to
the extent of directing to give respondents 1 to 7 one opportunity to let in
evidence . If any one of them do not offer to tender evidence either
documentary or oral, the Tribunal shall proceed to pass awards separately.
8. In the result, the writ petition stands disposed of modifying the
impugned order to the following extent.
9. Both sides shall appear before the Arbitrator on 5/8/2021 without any
further notice. On that day, the respondents shall clarify whether they propose
to file their statement of objection, if any and list of witnesses, if any If they
proposes to adduce evidence, they may be given reasonable opportunity to
tender oral and documentary evidence which shall not at any rate exceed
one month from the date of appearance. Entire exercise of tendering of the
evidence shall be completed within one month from the date of appearance
and no extension shall be granted. Thereafter, the arbitrator shall pass awards
discussing briefly the evidence and appreciation of the evidence. Award shall
be passed within a period of three weeks from the date of conclusion of
evidence. It is made clear that issue relating to moratorium, as raised in
Ext.P20, need not be considered by the Arbitrator.
The writ petition is disposed of with the above directions.
Sd/-
SUNIL THOMAS,Judge
dpk
APPENDIX OF WP(C) 8197/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE PHOTOCOPY OF THE AWARD IN
A.R.C.3447/2017 DATED 26/10/2017 PASSED BY
THE ARBITRATOR/8TH RESPONDENT.
EXHIBIT P2 TRUE PHOTOCOPY OF THE E.P.1873/2018 FILED
BY THE PETITIONER DATED NIL.
EXHIBIT P3 TRUE PHOTOCOPY OF THE DEMAND NOTICE DATED
24/9/2019 ISSUED TO THE FIRST RESPONDENT.
EXHIBIT P4 TRUE PHOTOCOPY OF THE NOTICE DATED
21/11/2019 ISSUED BY THE FIRST RESPONDENT.
EXHIBIT P5 TRUE PHOTOCOPY OF THE NOTICE DATED
5/3/2020 ISSUED TO THE FIRST RESPONDENT.
EXHIBIT P6 TRUE PHOTOCOPY OF THE AWARD IN
A.R.C.3451/2017 DATED 26/10/2017.
EXHIBIT P7 TRUE PHOTOCOPY OF THE E.P.NO.36/2018 DATED
19/7/2018 FILED BY THE PETITIONER.
EXHIBIT P8 TRUE PHOTOCOPY OF THE NOTICE ISSUED BY THE
SALE OFFICER DATED 5/3/2020.
EXHIBIT P9 TRUE PHOTOCOPY OF THE AWARD IN
A.R.C.3471/2017 DATED 26/10/2017.
EXHIBIT P10 TRUE PHOTOCOPY OF THE E.P.NO.54/2018 DATED
19/7/2018 FILED BY THE PETITIONER.
EXHIBIT P11 TRUE PHOTOCOPY OF THE NOTICE DATED
27/11/2018 RECEIVED TO THE RESPONDENTS 4 &
EXHIBIT P12 TRUE PHOTOCOPY OF THE NOTICE DATED
5/5/2020 ISSUED BY THE PETITIONER.
EXHIBIT P13 TRUE PHOTOCOPY OF THE AWARD IN
A.R.C.3468/2017 DATED 26/10/2017.
EXHIBIT P14 TRUE PHOTOCOPY OF THE E.P.NO.51/2018 DATED
19/7/2018 FILED BY THE PETITIONER.
EXHIBIT P15 TRUE PHOTOCOPY OF THE NOTICE DATED
5/3/2020 ISSUED TO THE RESPONDENTS 6 & 7.
EXHIBIT P16 TRUE PHOTOCOPY OF THE LIS OF LOANEES
CONNECTED TOP THE RESPONDENTS 1 TO 7.
EXHIBIT P17 TRUE PHOTOCOPY OF THE REVISION PETITION
R.P.16/20 DATED 11/3/20 FILED BEFORE THE
9TH RESPONDENT.
EXHIBIT P18 TRUE PHOTOCOPY OF THE DELAY PETITION WITH
AFFIDAVIT DATED 11/3/20 FILED BY THE FIRST
RESPONDENT BEFORE THE 9TH RESPONDENT.
EXHIBIT P19 TRUE PHOTOCOPY OF THE COMMON ORDER PASSED
BY THE TRIBUNAL IN R.P.16/20 AND CONNECTED
REVIEW PETITIONS DATED 19/1/2021.
EXHIBIT P20 TRUE PHOTOCOPY OF THE G.O.(P) NO.04/2018
DMD DATED 29/8/2018.
