Kerala High Court
Sali T vs Keezhmadu Service Co-Operative Bank No ... on 12 June, 2024
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
WP(C) NO. 27416 OF 2021
PETITIONER/S:
KEEZHMADU SERVICE CO-OPERATIVE BANK, NO. 2681,
ALUVA, ERNAKULAM DISTRICT,REPRESENTED BY ITS SECRETARY,
PIN-683101.
BY ADVS.
AJAI JOHN
V.M.SAJAN(K/165/1994)
RESPONDENT/S:
1 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),
ALUVA, ERNAKULAM DISTRICT, PIN-683 101.
2 THE SPECIAL SALE OFFICER,
OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES(GENERAL), ALUVA, ERNAKULAM DISTRICT,PIN-683 101.
3 SALI VELAYUDHAN,
W/O LATE VELAYUDHAN.N.P, NADUPARAMBIL HOUSE, EDAYAPPURAM, ALUVA,
PIN-683 101.
4 UDAYAKUMAR.N.V,
S/O.LATE VELAYUDHAN N.P,NADUPARAMBIL HOUSE, EDAYAPPURAM,ALUVA,
PIN-683 101.
5 SARITHA,
D/O.LATE VELAYUDHAN.N.P,AND W/O.RAJEEV, PARIYARATHU HOUSE,
VALLUVALLY, ERNAKULAM, PIN-683 519.
BY ADVS.
M.P.ASHOK KUMAR
BINDU SREEDHAR
ASIF N
OTHER PRESENT:
SMT.K.B.SONY-GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.06.2024, ALONG WITH WP(C).28342/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C)NOS.27416 & 28342 of 2021
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
WP(C) NO. 28342 OF 2021
PETITIONER/S:
1 SALI T.
AGED 66 YEARS
W/O.LATE VELAYUDHAN, NADUPARAMBIL HOUSE, EDAYAPPURAM, ALUVA,
ERNAKULAM - 683 101.
2 UDAYAKUMAR N.V.
NADUPARAMBIL HOUSE, EDAYAPPURAM, ALUVA, ERNAKULAM - 683 101.
3 SARITHA N.V.
PARIYARATH HOUSE, VALLUVALLY, ALUVA, ERNAKULAM - 683 519.
BY ADVS.
M.P.ASHOK KUMAR
BINDU SREEDHAR(K/000317/2002)
ASIF N(K/001564/2018)
RESPONDENT/S:
1 KEEZHMADU SERVICE CO-OPERATIVE BANK NO 2681
GROUND FLOOR, EDAYPURAM, ALUVA, ERNAKULAM - 683 101, REP. BY
IT'S SECRETARY.
2 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)
ALUVA, ERNAKULAM - 683 101.
3 THE SPECIAL SALE OFFICER
OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL), ALUVA, ERNAKULAM - 683 101.
BY ADVS.
AJAI JOHN
V.M.SAJAN(K/165/1994)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.06.2024,
ALONG WITH WP(C).27416/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)NOS.27416 & 28342 of 2021
3
CR
JUDGMENT
[W.P.(C) Nos.27416 & 28342 of 2021]
1. Since both these writ petitions arise from the same Arbitration
proceedings, I dispose both the writ petitions by a common
judgment. The parties and documents are referred to according
to the description in W.P(c) No.28342/2021.
2. The husband of the 1st petitioner and father of 2nd and 3rd
petitioners, Sri. Velayudhan.N.P, availed of a loan of
Rs.3,00,000/- from the 1st respondent Co-Operative Bank on
10.06.2008. On account of the default in repayment of the loan
amount as per the Loan Agreement, the 1 st respondent initiated
arbitration proceedings under S.69 of the Kerala Cooperative
Societies Act ('the Act' in short) and obtained Ext.P2 Arbitration
Award dated 28.11.2011 in ARC No.3087/2011 against the said
Sri. Velayudhan.N.P after giving notice to him. The
1st respondent Bank instituted execution proceedings through
W.P.(C)NOS.27416 & 28342 of 2021
the 2nd and 3rd respondents. The said Sri.Velayudhan.N.P
received notice in the execution proceedings. Subsequently, he
died on 24.02.2013.
3. W.P.(C)No.27416/2021 is filed by the 1 st respondent impleading
the legal representatives of Sri.Velayudhan.N.P as respondents
3 to 5, seeking direction to the 2 nd and 3rd respondents to
complete the execution proceedings including sale of the
mortgaged property within a time limit.
4. W.P.(C)No.28342/2021 is filed by the petitioners challenging
Ext.P2 award on the ground that it is an ex parte award and also
to declare that the said Award cannot be executed without
impleading the petitioners as legal representatives of the
judgment debtor under Rule 74(4) of the Kerala Co-operative
Societies Rules, 1969 ( 'the Rules' in short).
5. The 1st respondent filed a Counter Affidavit dated 08.07.2022
contending, inter alia that Ext.P 2 award is not an exparte
award; that the Award was passed after giving notice to the
borrower Sri.Velayudhan.N.P; that he died after receiving notice
in the execution proceedings; that the petitioners are well aware
W.P.(C)NOS.27416 & 28342 of 2021
of the execution proceedings; that they are impleaded in the
execution proceedings; that 1 st respondent had been repeatedly
demanding them to settle the loan; that they never contended
that they are not parties to the execution petition; the 3 rd
petitioner has approached the 1 st respondent by filing several
applications for interest waiver and copies of the loan
documents; and that by way of abundant caution, the
1st respondent has filed Ext.R1(m) Petition dated 05.04.2022 to
implead and issue notice to the petitioners in the execution
proceedings.
6. Heard learned Counsel for the petitioners Sri.M.P.Ashok Kumar,
the learned counsel for the 1st respondent Sri.Ajai John
representing Adv. Sri.V.M.Sajan and the learned Government
Pleader Smt. K.B.Sony for the 2nd and 3rd respondents.
7. The Counsel for the petitioners pointed out that the copy of the
Award dated 28.11.2011 in ARC No.3087/2011 produced by the
petitioners as Ext.P2 in the Writ Petition and the copy of the
very same Award produced by the first respondent with its
Counter Affidavit as Ext.R1(e) varies on material aspects and
argued that there could not be two contradictory awards passed
W.P.(C)NOS.27416 & 28342 of 2021
on the same date in ARC No.3087/2011 and hence the Award is
inexecutable. I sought instruction from the learned Government
Pleader and she confirmed that the details in Ext.P2 are correct
and mistakes happened in Ext.R1(e) when another copy was
taken from the system when the original award was destroyed in
flood. Accordingly, I treat Ext.P2 as the copy of the Award dated
28.11.2011 passed in ARC 3087/2011.
8. The learned counsel for the petitioners argued that the Bank
has not impleaded the legal representatives of the original
judgment debtor - Sri.Velayudhan.N.P in the execution
proceedings within the period of limitation and hence the
execution proceedings got abated. According to him, on
account of the abatement of the execution proceedings, the
orders cannot be given in W.P.(C) No.27416/2021 to expedite
the execution proceedings. According to him, Section 76(a) of
the Act provides that the Award of the Registrar shall be
deemed to be a decree of a civil court and shall be executed in
the same manner as a decree of such court. According to him,
on account of this provision, the Code of Civil Procedure is
applicable to the execution proceedings of the Awards passed
W.P.(C)NOS.27416 & 28342 of 2021
under the Act and the Rules. He also pointed out that, as per
Rule 74(4) of the Rules which provides that where a defaulter
dies before the decree has been fully satisfied, an application
under sub-rule (1) may be made against the legal
representatives of the deceased and thereupon all provisions of
this Rule shall apply, as if such legal representatives were the
defaulters.
9. On the other hand, the learned counsel for the 1 st respondent
submitted that even if the Code of Civil Procedure is applicable,
in view of Order XXII Rule 12, the Rules 3, 4, 8 of Order XXII
relating to abatement are not applicable to the proceedings in
execution of a decree or Order. As such, there is no abatement
of the execution proceedings initiated by the Bank and the legal
representatives can be impleaded at any point of time and that
they are already on record.
10. After hearing the parties, I find that though the 1 st respondent
contends that the petitioners are impleaded in the execution
proceedings to execute Ext.P2 award consequent to the death
of the judgment debtor, there is nothing on record to prove that
they are impleaded. Only after the filing these writ petitions, the
1st respondent filed Ext.R1(m) Petition dated 05.04.2022 to
W.P.(C)NOS.27416 & 28342 of 2021
implead the petitioners and to issue notice to them in the
execution proceedings.
11. In view of Rule 74(4) of the Rules, the 1 st respondent can
proceed with the execution only after impleading the legal
representatives of the deceased judgment debtor. Since the
1st respondent filed W.P.(C)No.27416/2021 seeking to expedite
the execution proceedings without impleading the legal
representatives of the judgment debtors, the said writ petition is
liable to be dismissed.
12. In W.P.(C).No.28342/2021, the first prayer of the petitioners
therein is to set aside the Award passed by the Arbitrator on the
ground that it is an ex parte Award. I find from the records that
the Award is not an ex parte one and the Award was passed
after serving notice to the borrower, Sri.Velayudhan.N.P. It is
clear from the records that Sri.Velayudhan.N.P received notice
in the execution proceedings also. Ext.P2 Award does not show
that Sri.Velayudhan.N.P was made exparte in the arbitration
proceedings. Hence first prayer in W.P.(C)No.28342/2021 to set
aside the Award on the ground that it is an exparte, is rejected.
W.P.(C)NOS.27416 & 28342 of 2021
13. The second prayer in W.P.(C).No.28342/2021 is to declare that
the award cannot be executed without impleading the
petitioners therein, who are the legal representatives of the late
Velayudhan under Rule 74(4) of the Rules.
14. The legal issues involved are:
a. Whether Code of Civil Procedure is applicable to the
execution proceedings to execute the Arbitration Award
passed under the Act.
b. Whether there is abatement in case the legal representatives
of the deceased judgment-debtor are not impleaded in the
execution proceedings to execute the Arbitration Award
passed under the Act.
15. Issue No.1: The counsel for the petitioners invited my attention
to Section 76(a) of the Act and argued that in view of the said
provision the Arbitration Award is to be treated as a decree of
the civil court and shall be executed in the same manner as
decree of such court. The counsel argued that since the
Arbitration Award is deemed to be a Decree of the Civil Court,
the Code of Civil Procedure is applicable to the execution
W.P.(C)NOS.27416 & 28342 of 2021
proceedings for executing Arbitration Award passed under
Section 69 of the Act.
16. I am unable to accept the said contention. Section 76 deals with
the execution of the Orders, decisions and awards passed
under the Act. It provides three modes of execution. The first
mode provided in Sub-Clause (a) is execution through civil court
on a Certificate issued by the Registrar. The second mode
provided in Sub-Clause (b) is recovery of money in accordance
with the law for the recovery of arrears of public revenue due on
land where the order is for recovery of money. It indicates
recovery proceedings under the Kerala Revenue Recovery Act,
1968 and the Rules made thereunder. The third mode of
execution provided in Sub-Clause (c) is execution by the
Registrar either by himself or through his subordinate officers.
All these three modes of execution are distinct and independent.
The Code of Civil Procedure is applicable only to the Civil Court
executing the decree on the basis of a Certificate issued by the
Registrar under Sub-Clause (a). In the other two modes of
execution provided in Sub-Clauses (b) and (c), the Award is not
deemed to be the decree of the Civil Court and as such Code of
Civil Procedure is not applicable. In the case on hand, the
W.P.(C)NOS.27416 & 28342 of 2021
execution is made through the mode provided in Sub-Clause (c)
to which the Code of Civil Procedure is not made applicable.
17. It is true that the Registrar is deemed to be a civil court in
Section 77 of the Act. But on going through the said provision
the Registrar is deemed to be a civil court only for the purpose
of Article 136 of Schedule to the Limitation Act, 1963 and not for
any other purpose. There are other indications in the Act to hold
that Code of Civil Procedure is not applicable to the arbitration
proceedings under the Act and its execution. As per Section
70(3) the Co-Operative Arbitration Court is given the same
powers as vested in the civil court under Code of Civil
Procedure with respect to the limited matters which are stated
therein. As per Rule 122 of the Rules coming under Chapter XII
under the head 'Appeals, Revision and Review' provisions of
Code of Civil Procedure and the Civil Rules of Practice are
made applicable with respect to the limited matters which are
stated therein. The Rule 122 coming under Chapter XII applies
only to the Kerala Co-Operative Tribunal and not to any other
proceedings. There are specific provisions for execution in
Chapter XI of the Act and Chapter XI of the Kerala Co-operative
Societies Rules. If the Code of Civil Procedure is applicable to
W.P.(C)NOS.27416 & 28342 of 2021
the execution proceedings under the Act and Rules, there is no
need to include specific provisions for execution proceedings in
Chapter XI of the Act and Chapter XI of the Rules.
18. In Kuriako v. Baby [1998 (1) KLT 157] the learned Single
Judge of this Court has held that Code of Civil Procedure as
such is not applicable for execution of Awards when Assistant
Registrars are executing the orders.
19. As Rightly pointed out by the Learned Counsel for the 1 st
respondent, in view of Order XXII Rule 12, the Rules of the
Code of Civil Procedure regarding abatement are not applicable
to execution of a decree or order. In Sabeeda Beevi v.
Nazeema Thaha & Ors [ 2012(3) KLT 747 ] referring to Order
22 Rule12 of the Code of Civil Procedure, the Learned Single
Judge of this Court has held that there would not be any
abatement to execution proceedings due to non-impleadment of
legal representatives and that legal representatives can be
impleaded at any time and execution proceedings can be
proceeded with. So even the provisions of the Code of Civil
Procedure is of any help to the petitioners, even if the same are
made applicable.
20. Hence the contention of the counsel for the petitioner that the
W.P.(C)NOS.27416 & 28342 of 2021
Code of Civil Procedure is applicable to the execution
proceedings of the Arbitration Award passed under the Act is
unsustainable.
21. Issue No.2: Rule 74 provides for the execution of the Award
under Section 76 (c). Rule 74(4) provides that where a defaulter
dies before the decree has been fully satisfied an Application
under Rule 74(1) may be made against the legal
representatives of the deceased and thereupon all provisions of
the said Rule shall apply as if such legal representatives were
the defaulters. Though on a strict interpretation of Rule 74(4), a
fresh Application is to be made under Rule 74(1) against the
legal representatives of the deceased judgment debtor, no
prejudice would be caused to the legal representatives of the
judgment- debtor if they are impleaded in the existing
Application filed under Rule 74(1) the Decree holder. On the
other hand, serious prejudice would be caused to the Decree
Holder if, in every case of death of judgment debtor/s, the
Decree Holder is asked to file fresh Application for execution
leaving the stage at which the existing application has reached.
Hence I hold that in the case of the death of judgment debtor,
W.P.(C)NOS.27416 & 28342 of 2021
the Decree holder can file an Application under Rule 74(4) of the
Rules for impleading the legal representative/s in an existing
Application for execution filed under Rule 74(1) of the Rules.
22. Rules 104 to 106 of the Rules deal with death of parties and
abatement with respect to the proceedings before the Kerala
Co-Operative Tribunal. As per Rule 104, the impleading of legal
representatives of the deceased is to be made within 90 days
and in case of default the proceedings will be abated. As per
Rule 106, an application for setting aside the abatement can be
made within a period of sixty days from the date of abatement
and the provisions of Section 5 of the Limitation Act, 1963 is
made applicable. Whereas there is specific Rule 74(4) for
impleading the legal representatives in execution proceeds of
the Arbitration Award without any provision for a limitation period
and abatement. No provision is made for limitation period and
abatement in Rule 74(4) as the Legislature wanted it to be
similar to the provisions in the Code of Civil Procedure.
23. Learned Counsel for the petitioner submitted that in view of the
decision in Kuriako's case (supra) it is well settled that
execution proceedings would abate without impleadment of
legal representatives as required under Rule 74(4) of the Rules.
W.P.(C)NOS.27416 & 28342 of 2021
On perusal of the said decision, the sale in execution of an
Arbitration Award under the Act was set aside by the Learned
Single Judge of this Court finding that the legal representatives
of the deceased are not made parties before the sale in the
execution proceedings. The said decision is clearly
distinguishable on the facts of the present case. Here sale has
not taken place and the execution petition is still pending
consideration. The said decision does not speak anything about
abatement. Hence, I hold that there is no abatement in case the
legal representatives of the deceased judgment-debtor are not
impleaded in the execution proceedings to execute the
Arbitration Award passed under the Act and that there is no
impediment to implead the legal representatives in the
execution proceedings at any time irrespective of the date of
death of the deceased judgment debtor.
24. In the case on hand the 1 st respondent Bank is free to proceed
with the execution impleading the legal representatives of the
deceased judgment debtor Sri. Velayudhan.N.P at any time
25. In view of the aforesaid propositions law, I dismiss W.P©
No.27416/2021 and dispose of W.P.(C)No.28342/2021 directing
the first respondent Bank to proceed with the execution
W.P.(C)NOS.27416 & 28342 of 2021
proceedings pursuant to Ext.P2 Award only after impleading the
legal representatives of the deceased judgment debtor Sri.
Velayudhan M.P. The parties are at liberty to raise all other
contentions in the execution proceedings.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Shgx
W.P.(C)NOS.27416 & 28342 of 2021
APPENDIX OF WP(C) 27416/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE APPLICATION FOR LOAN DATED
10.06.2008 SUBMITTED BY LATE VELAYUDHAN.N.P.
EXHIBIT P2 TRUE COPY OF BOND (LOAN NO.OL NO.26412) DATED
14.07.2008 EXECUTED BY LATE VELAYUDHAN.N.P. IN
FAVOR OF THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE GEHAN DATED 02.07.2008 EXECUTED
BY LATE VELAYUDHAN N.P.BEFORE THE PETITIONER
EXHIBIT P4 TRUE COPY OF THE DOCUMENT NO. 993/1956 OF SUB
REGISTRY, ALUVA.
EXHIBIT P5 TRUE COPY OF AWARD DATED 28.11.2011 IN ARC
NO.3087/11 PASSED BY THE ARBITRATOR.
EXHIBIT P6 TRUE COPY OF NOTICE DATED 4TH OF MAY 2012 ISSUED
BY THE 2ND RESPONDENT
EXHIBIT P7 TRUE COPY OF LAWYER NOTICE DATED 01.10.2021
SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE ACKNOWLEDGMENT CARD SHOWING
RECEIPT OF EXT.P7 BY THE 5TH RESPONDENT
EXHIBIT P9 TRUE COPY OF REPRESENTATION DATED 11-11-2021 SENT
TO THE 2ND RESPONDENT BY THE PETITIONER.
EXHIBIT P10 TRUE COPY OF POSTAL RECEIPT SHOWING DISPATCH OF
EXT.P9 ON 11-11-2021.
EXHIBIT P11 TRUE COPY OF ACKNOWLEDGEMENT CARD SHOWING THE
RECEIPT OF EXHIBIT.P9 ON 12-11-2021.
W.P.(C)NOS.27416 & 28342 of 2021
APPENDIX OF WP(C) 28342/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE LAWYER NOTICE DT. 01/10/2021.
EXHIBIT P2 TRUE COPY OF THE AWARD IN ARC 3087 OF 2011 DT.
28/11/2011 PASSED BY THE ARBITRATOR ATTACHED TO
OFFICE OF 2ND RESPONDENT.
EXHIBIT P3 PHOTOGRAPH OF THE RESIDENTIAL BUILDING WHERE THE
PETITIONERS RESIDE.
RESPONDENT EXHIBITS
EXHIBIT R1(A) TRUE COPY OF THE APPLICATION FOR LOAN DATED
10.06.2008 SUBMITTED BY LATE VELAYUDHAN N.P.
EXHIBIT R1( B) TRUE COPY OF BOND(LOAN NO. OL NO. 26412) DATED
14.07.2008 EXECUTED BY LATE VELAYUDHAN N.P. IN
FAVOUR OF PETITIONER
EXHIBIT R1(C) TRUE COPY OF GETHAN DATED 02.07.2008 EXECUTED BY
LATE VELAYUDHANN.P. BEFORE THE PETITIONER
EXHIBIT R1(D) TRUE COPY OF DOCUMENT NO. 993/1956 OF SUB
REGISTRY, ALUVA.
EXHIBIT R1(E) TRUE COPY OF AWARD DATED 28.11.2011 IN ARC
3087/2011 PASSED BY THE ARBITRATOR.
EXHIBIT R1(F) TRUE COPY OF EA.A. NO. 208 OF 2012 FILED BEFORE
THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES,ALUVA.
EXHIBIT R1 (G) TRUE COPY OF DEMAND NOTICE DATED NOTICE DATED
04.05.2012 IN EA NO. 208 OF 2012 ISSUED BY THE
SALE OFFICER.
EXHIBIT R1(H) TRUE COPY OF REPRESENTATION DATED 24.02.2016
SUBMITTED BY THE 1ST PETITIONER BEFORE THE 1ST
RESPONDENT.
EXHIBIT R1 (I) TRUE COPY OF INTIMATION SENT BY THE 1ST RESPONDENT
TO THE 1ST PETITIONER SENT 14.05.2016
EXHIBIT R1(J) TRUE COPY OF THE ACKNOWLEDGMENT CARD OF EXT. R1
(I)
EXHIBIT R1 (K) TRUE COPY OF THE LOAN DETILS SENT TO THE 1ST
PETITIONER ALONG WITH THE COVERING LETTER SENT TO
THE 1ST PETITIONER ON 09.06.2016
EXHIBIT R1 (L) TRUE COPY OF THE LETTER DATED 20.07.2016 SENT BY
THE 1ST PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT R1 (M) TRUE COPY OF PETITION DATED 05.04.2022 FILED
BEFORE THE 2ND RESPONDENT.
W.P.(C)NOS.27416 & 28342 of 2021
EXHIBIT R1(N) TRUE COPY OF THE POSTAL RECEIPT OF EXT. R1 (M)
SENT ON 05.04.2022
EXHIBIT R1 (O) TRUE COPY OF THE POSTAL RECEIPT OF EXT. R1(M)
