Jayakrishnan vs State Of Kerala
2024 Latest Caselaw 13873 Ker

Kerala High Court

Jayakrishnan vs State Of Kerala on 28 May, 2024

                        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                         PRESENT

                      THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM

                 TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946

                                WP(C) NO. 15557 OF 2013


PETITIONER/S:

                JAYAKRISHNAN
                AGED 31 YEARS
                S/O.RADHAKRISHNAN, SREEKRISHNA NIVAS, KADAMPAZHIPURAM,
                OTTAPALAM TALUK, PALAKKAD DISTRICT.


                BY ADV SRI.T.K.SANDEEP




RESPONDENT/S:

      1         STATE OF KERALA
                REPRESENTED BY THE SECRETARY TO CO-OPERATIVE DEPARTMENT, SECRETARIAT,
                THIRUVANANTHAPURAM-695 001.


      2         KERALA CO-OPERATIVE TRIBUNAL
                THIRUVANANTHAPURAM-695 001.


      3         OTTAPALAM TALUK RUBBER MARKETING CO-OPERATIVE SOCIETY
                NO.P.1027, KOTTAPURAM POST, OTTAPALAM TALUK, PALAKKAD DISTRICT,
                REPRESENTED BY MANAGING DIRECTOR, PIN-679 518.


      4         RAMACHANDRAN
                S/O. NARAYANAN, MUDAPLAVIL, VALAMBALIMANGALAM,
                OTTAPALAM TALUK-679 513.



OTHER PRESENT:

                SRI.V.VENUGOPAL-GP




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.05.2024, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.15557 OF 2013

                                  2




                            JUDGMENT

1. The petitioner has filed this writ petition contending that the

Petitioner and the Respondent No.4 had executed an

Agreement dated 26.12.2007 with the Respondent No.3 for

conducting a Supermarket; that there occurred a shortage

of Rs.3,32,828.75 between the period 01.12.2007 to

30.03.2008 and the Respondent No.3 respondent filed

Ext.P1/ARC 344/2009 under Section 69 of the Kerala Co-

operative Societies Act; that in Ext.P1, the transaction

alleged is only a loan transaction and no averment with

respect to the conduct of the supermarket or the shortage

therein is alleged; that the parties had appeared before the

Arbitrator and denied the loan transaction and submitted

that the claim of the Respondent No.3 may not be granted in

view of the pleadings in Ext.P1; that the Arbitrator rejected

the objection and decreed the ARC in favour of the

Respondent No.3 as per Ext.P2 Award; that the petitioner W.P.(C)No.15557 OF 2013

filed appeal before the Kerala Co-operative Tribunal,

Thiruvananthapuram, challenging Ext.P2 Award raising the

very same contention; that the Tribunal found merit in the

contention raised by the petitioner and entered into a

finding that there is no pleading supporting the evidence on

the basis of which finding was entered by the Arbitrator;

that though, by Ext.P3 judgment the Tribunal set aside

Ext.P2 Award, it remanded the matter back to the Arbitrator

for fresh adjudication with liberty to amend the pleadings

and adduce further evidence and directing the parties to

appear before the Arbitrator fixing a date. Petitioner has

filed this writ petition challenging Ext P3 on the ground that

the remand of the case ordered by the Tribunal illegal. The

contention is that after finding that there is no pleading with

respect to the conduct of the supermarket and shortage of

stock, the Tribunal ought to have dismissed the claim setting

aside Ext.P2 rather than remanding the matter back to the

Arbitrator.

2. Though the Respondent No.3 was served with notice, it has

not entered appearance in the writ petition. While admitting

the matter, this Court initially granted a stay of further W.P.(C)No.15557 OF 2013

proceedings in the ARC for one month and thereafter

extended the stay from time to time.

3. On hearing the learned counsel for the petitioner and

perusing Ext.P1 plaint, I find substance in the contention

raised by the learned counsel for the petitioner. Ext.P1 is a

printed form, which intend for filing Petition for realisation

of money under loan transaction. Since Ext.P1 does not

contain even a single word with respect to the conduct of

the supermarket and shortage of stock it is practically

impossible and legally not permissible to amend Ext.P1 to

incorporate the said cause of action. The claim on the basis

of shortage of stock in the supermarket could be raised only

by substitution of Ext.P1 Petition and not by amendment.

The amendment of the entire pleadings in Ext.P1 would

change the nature and character of the claim. So I find that

the remand order made by the Tribunal to enable the

Respondent No.3 to amend the pleadings and to adduce

further evidence is illegal and unsustainable and the

Tribunal ought not to have remanded the matter after

setting aside Ext.P2 order.

4. Accordingly, I allow this writ petition setting aside Ext.P3 W.P.(C)No.15557 OF 2013

Order to the extent to which it remand the matter back to

the Arbitrator. Since Ext.P1 relates to a loan transaction and

nothing is stated about the cause of action with respect to

the shortage while conducting the Supermarket, the

Respondent No.3 is free to initiate fresh proceedings for

realisation with proper pleadings, if it is permissible under

law.

Writ Petition is allowed.

Sd/-

M.A.ABDUL HAKHIM JUDGE Shg W.P.(C)No.15557 OF 2013

APPENDIX OF WP(C) 15557/2013

PETITIONER EXHIBITS

P1 : COPY OF THE PLAINT FILED IN ARC 344/09 FILED BY THE 3RD RESPONDENT.

P2 : COPY OF THE ORDER DTD.25.7.2012 IN ARC NO.344/09.

P3 : COPY OF THE JUDGMENT IN APPEAL NO.84/12 DTD.31.01.2013 BEFORE THE KERALA CO-

OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM.