Nafeesath vs The Special Sales Officer
2024 Latest Caselaw 13800 Ker

Kerala High Court

Nafeesath vs The Special Sales Officer on 28 May, 2024

Author: Devan Ramachandran

Bench: Devan Ramachandran

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
                       WP(C) NO. 36054 OF 2023
PETITIONER:

            NAFEESATH, AGED 65 YEARS,
            W/O. NOORDHEENKUNJU, KARUVANLAYYATHI HOUSE,
            ELAPPIKULAM MURI, KATTANAM,
            ALAPPUZHA DISTRICT, PIN - 690503.

            BY ADV A.SHAFEEK (KAYAMKULAM)


RESPONDENTS:

    1       THE SPECIAL SALES OFFICER
            OFFICER FOR ARBITRATION AND EXECUTION OFFICE/ASSISTANT
            REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES,
            MAVELIKKARA., PIN - 690101.

    2       KATTANAM SERVICE CO-OPERATIVE BANK
            BRANCH CODE NO. 120, KATTANAM
            REPRESENTED BY ITS SECRETARY., PIN - 690503.

            BY ADVS.
            GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
            MANU SRINATH(D/1420/2014)
            NIMESH THOMAS(K/1324/2018)
            SMT.C.S.SHEEJA, SR.GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 36054 OF 2023
                                      -2-

                                JUDGMENT

The petitioner asserts that Exts.P1 to P3

Awards have been issued against her

ex parte; and therefore, that they are vitiated

in law. She says that she has, therefore,

preferred Exts.P4 to P6 applications, to have

the said Awards set aside; but that these have

been refused to be considered by the 1 st

respondent - Special Sales Officer, as evident

from Exts.P7 to P9. The petitioner alleges that

the afore refusal of the 1st respondent is

illegal and unlawful; and therefore, that she

has been constrained to approach this Court

through this Writ Petition.

2. Sri.Shafeek A. - learned counsel for the

petitioner, argued that it has been well

settled, through a catena of judgments of this

Court and that of the Hon'ble Supreme Court,

that the statutory Arbitrator obtains power to WP(C) NO. 36054 OF 2023

set aside an ex parte Award, if sufficient cause

is shown. He submitted that, however, the said

Authority has refused to exercise jurisdiction,

but without citing any reason, which is evident

from Exts.P7 to P9, wherein, all which is stated

is that the applications cannot be considered.

He thus prayed that the 1st respondent be

directed to reconsider Exts.P4 to P6 and to

issue appropriate orders thereon.

3. In response, the learned Standing

Counsel for the respondent - Bank, Sri.George

Varghese Perumpallikuttiyil, submitted that,

though his client can take various technical

objections against the plea of the petitioner,

as projected in this Writ Petition, they do not

intend to do so, provided the petitioner is

directed to pay some amount in the loan accounts

because the same has remained in default for a

long period of time. He explained that Exts.P7 WP(C) NO. 36054 OF 2023

to P9 are not under challenge in this Writ

Petition and therefore, a plea for

reconsideration of Exts.P4 to P6 cannot be

normally asked for; but that the Bank will not

stand in the way of such orders being issued,

subject to the afore condition being imposed. He

submitted that he is making the afore

submissions because the total overdue in the

loan account is in excess of Rs.56 lakhs.

4. Smt.C.S.Sheeja - learned Senior

Government Pleader, submitted that the 1st

respondent was swayed by the fact that Exts.P4

to P6 applications did not merely ask for the ex

parte Awards to be set aside, but that they be

reviewed and certain alleged deficiencies

rectified. She submitted that law is well

established that the 1st respondent does not

obtain any power of Review, though she conceded

that, if the applications are permitted to be WP(C) NO. 36054 OF 2023

construed only as ones for setting aside the ex

parte Awards, they can be taken into account and

properly ordered. She added that the 1 st

respondent, therefore, will abide by any

direction to be issued by this Court.

5. When I evaluate and consider the afore

rival submissions, I find force in the

contentions of Sri.George Varghese

Perumpallikuttiyil, that, normally, without a

challenge to Exts.P7 to P9, the petitioner could

not have asked for a reconsideration of Exts.P4

to P6 applications.

6. That apart, when Exts.P4 to P6 contain

prayers which are not in conformity with the

Statutory Scheme, I cannot find full fault with

the 1st respondent in having issued Exts.P7 to

P9. However, since Sri.George Varghese

Perumpallikuttiyil makes a fair submission that

his client will not stand in the way of Exts.P4 WP(C) NO. 36054 OF 2023

to P6 applications being considered as ones

solely to have the ex parte Award set aside, but

on the condition that the petitioner be ordered

to pay some amount to the loan accounts, I am

certain that the same requires to be acceded to.

This is more so because, the learned Senior

Government Pleader also says that Exts.P4 to P6

can be reconsidered, provided they are allowed

to be construed only as the applications to have

the ex parte Awards set aside.

7. In fact Sri.Shafeek A. - learned counsel

for the petitioner, also conceded to the afore

course, offering that his client remit Rs.10

lakhs to the loan account within a period of two

weeks.

In the afore circumstances, this Writ

Petition is ordered with the following

directions:

(a) The petitioner will remit an amount of WP(C) NO. 36054 OF 2023

Rs.10 lakhs to the loan accounts on or before

10.07.2024.

(b) If the afore is done and the evidence of

such payment is produced before the 1st

respondent, the said Authority will take up

Exts.P4 to P6 and dispose of the same,

construing them to be the applications to have

Exts.P1 to P3 ex parte Awards set aside, but

without exercising any power of Review as prayed

for therein. The said Authority will act in

terms of law, but dehors Exts.P7 to P9,

adverting to the declarations by this Court and

that of the Hon'ble Supreme Court regarding his

power to consider an application to have the

ex parte Award set aside.

(c) Until such time as the 1st respondent

takes a fresh decision on Exts.P4 to P6 -

provided the petitioner complies with direction

(a) above - all further action for recovery WP(C) NO. 36054 OF 2023

based on Exts.P1 to P3 ex parte Awards will

stand deferred, but can be taken forward

thereafter, depending upon the decision to be

entered into.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C) NO. 36054 OF 2023

APPENDIX OF WP(C) 36054/2023

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE ORDER IN PETITION NO.

623/2021 DATED 31/3/2022 OF THE 1ST RESPONDENT

EXHIBIT P2 A TRUE COPY OF THE ORDER IN PETITION NO.

624/2021 DATED 31/3/2022 OF THE 1ST RESPONDENT

EXHIBIT P3 A TRUE COPY OF THE ORDER IN PETITION NO.

226/2022 DATED 16/5/2022 OF THE 1ST RESPONDENT

EXHIBIT P4 A TRUE COPY OF THE PETITION DATED NIL FILED BY THE PETITIONER TO REVIEW EXT. P1 ORDER

EXHIBIT P5 A TRUE COPY OF THE PETITION DATED NIL FILED BY THE PETITIONER TO REVIEW EXT. P2 ORDER

EXHIBIT P6 A TRUE OF THE PETITION DATED NIL FILED BY THE PETITIONER TO REVIEW EXT. P3 ORDER

EXHIBIT P7 A TRUE COPY OF THE LETTER DATED 22/2/2023 SEND BY THE 1ST RESPONDENT TO THE PETITIONER WITH RESPECT TO EXT. P4 PETITION

EXHIBIT P8 A TRUE COPY OF THE LETTER DATED 22/2/2023 SEND BY THE 1ST RESPONDENT TO THE PETITIONER WITH RESPECT TO EXT. P5 PETITION

EXHIBIT P9 A TRUE COPY OF THE LETTER DATED 22/2/2023 SEND BY THE 1ST RESPONDENT TO THE PETITIONER WITH RESPECT TO EXT. P6 PETITION