Marakkar vs The Assistant Registrar
2023 Latest Caselaw 4162 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
  FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945
                   WP(C) NO. 9888 OF 2016
PETITIONER:

          MARAKKAR
          AGED 49 YEARS, S/O.KUNHIMOIDEEN,
          KOONARI HOUSE, POST THENNALA, POOKKIPARAMBU,
          TIRURANGADI TALUK, MALAPPURAM DISTRICT.
          BY ADVS.
          SRI.C.M.MOHAMMED IQUABAL
          SMT.ANJALI G.KRISHNAN
          SRI.ANILKUMAR V. VAZHARAMBIL

RESPONDENTS:

    1     THE ASSISTANT REGISTRAR (GENERAL) OF
          CO-OPERATIVE SOCIETIES,
          TIRURANGADI, POST TIRURANGADI,
          MALAPPURAM DISTRICT, PIN-676 306.
    2     THE ASSISTANT REGISTRAR (GENERAL) OF
          CO-OPERATIVE SOCIETIES
          TIRUR, POST TIRUR,
          MALAPPURAM DISTRICT, PIN-676 101.
    3     THENNALA SERVICE CO-OPERATIVE BANK LIMITED
          POST VALAKKULAM, MALAPPURAM DISTRICT, PIN-676 508,
          REPRESENTED BY ITS SECRETARY.
          BY ADVS.
          GOVERNMENT PLEADER SRI.K.M.FAISAL
          SRI.M.SASINDRAN

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C).No.9888/2016

                                         2




                    P.V.KUNHIKRISHNAN, J.
                     --------------------------------
                     W.P.(C).No.9888 of 2016
              ----------------------------------------------
             Dated this the 31st day of March, 2023


                               JUDGMENT

This writ petition is filed with following prayers:

i. Call for the records leading to Ext. P5 order and quash the same by issuance of a Writ of Certiorari or any other writ, order or direction. ii. Issue a Writ of Mandamus or any other appropriate writ, order or direction directing the 1st respondent to set aside the ex-parte award passed in ARC 68/2012 on its file, as per Ext. P1 application filed by the petitioner. iii. Pass any other appropriate writ, order or direction which this Hon'ble Court may deem fit to issue and the petitioner may pray from time to time.

(SIC)

2. Petitioner is the member of 3rd respondent Co-

operative Bank. It is the case of the petitioner that a loan was WP(C).No.9888/2016

taken from the Bank to the tune of Rs. 25,000/-, in his name,

by concocting documents by the Secretary and other officers

of the Bank, even without the knowledge of the petitioner.

According to the petitioner, he never applied or stood as

guarantor for any loan from the Bank. Since there was no

repayment of the loan, the 3rd respondent approached the 2nd

respondent to recover the loan amount by filing ARC

No.68/2012. It is the case of the petitioner that no notice was

received by the petitioner in the arbitration case.

Subsequently the 2nd respondent passed an ex-parte award

against the petitioner and others allowing the claim of the 3 rd

respondent Bank. The petitioner came to know about the same

only when notice is received in the execution petition. Hence

the petitioner filed Ext.P1 application to set aside ex-parte

award passed against him and Ext.P2 application to condone

the delay. Both the above applications were dismissed by the

1st respondent by Ext.P5 order, stating that he has no authority

to set aside the ex-parte award. Aggrieved by the same, this

writ petition is filed.

3. Heard the learned counsel for the petitioner and

the learned counsel for the 3rd respondent. I also heard the WP(C).No.9888/2016

learned Government Pleader.

4. Today, when the matter came up for consideration,

the counsel for the petitioner submitted that the point raised

in this writ petition is covered in favour of the petitioner in

Abdulla v. State of Kerala [2015 (1) KHC 433], in which,

this Court observed that Arbitration Court has the authority

not only to declare the person ex-parte but also the power to

set aside the order. The counsel also relied on the judgment of

this Court dated 10.06.2016 in W.P.(C). No.13719/2016.

5. After hearing both sides and also in the light of the

dictum laid down in Abdulla's case (supra) and the judgment

dated 10.06.2016 in W.P.(C). No.13719/2016, I am of the

considered opinion that Ext.P5 will not stand. Therefore

Ext.P5 can be set aside and there can be a direction to the 1 st

respondent to reconsider Exts.P1 and P2 on merit and pass

appropriate orders in accordance with law.

Therefore, this writ petition is allowed in the following

manner:

1. Ext.P5 is set aside.

2. The 1st respondent is directed to reconsider

Exts.P1 and P2 on merit and pass appropriate WP(C).No.9888/2016

orders in it, after giving an opportunity of

hearing to the petitioner and the 3rd respondent.

sd/-

                                         P.V.KUNHIKRISHNAN
JV                                              JUDGE
 WP(C).No.9888/2016





                     APPENDIX OF WP(C) 9888/2016

PETITIONER EXHIBITS

P1 : THE TRUE COPY OF THE APPLICATION TO SET ASIDE THE EX PARTE AWARD FILED BEFORE THE 2ND RESPONDENT DT 30-11-

2015.

P2 : THE TRUE COPY OF THE APPLICATION TO CONDONE DELAY IN FILING THE APPLICATION TO SET ASIDE THE EXPARTE AWARD FILED BEFORE THE 2ND RESPONDENT DT 30-11-2015.

P3 : THE TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DT 3-12-2015.

P4 : THE TRUE COPY OF THE ORDER DT 11-

1-2016 IN OPC.NO.87/2016 OF THIS HON'BLE COURT.

P5 : THE TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DT 30-1-2016.