Kerala High Court
Shibu vs The Ollukkara Service Co-Op Bank Ltd on 22 October, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
2024:KER:79004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946
WP(C) NO. 35889 OF 2024
PETITIONER:
SHIBU
AGED 51 YEARS
SACHARIA, MAILATHOTTATHIL HOUSE,
KAIRALY NAGAR DESOM, VELLANIKKARA VILLAGE,
THRISSUR TALUK, THRISSUR PIN - 680654.
BY ADVS.
N.L.BITTO
MITHUL T ANTO
RESPONDENTS:
1 THE OLLUKKARA SERVICE CO-OP BANK LTD
MANNUTHY P.O., THRISSUR DISTRICT REP BY
THE SECRETARY, MANNUTHY P.O., THRISSUR
DISTRICT, PIN - 680651.
2 ASSISTANT REGISTRAR FOR CO-OPERATIVE SOCIETIES
(GENERAL) OFFICE OF THE ASSISTANT REGISTRAR
FOR CO-OPERATIVE SOCIETIES, AYYATHOLE P.O.,
THRISSUR DISTRICT,, PIN - 680003.
3 SPECIAL SALE OFFICER
OFFICE OF THE ASSISTANT REGISTRAR FOR
CO-OPERATIVE SOCIETIES, AYYATHOLE P.O.,
THRISSUR DISTRICT PIN - 680003.
W.P.(C)No.35889 of 2024 2024:KER:79004
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BY ADVS.
SRI.ARJUN RAGHAVAN
SRI.T.R.HARIKUMAR
SMT.POOJA PANKAJ
SMT.NAYANZA FERIN C.P.
SMT.RESMI THOMAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.10.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C)No.35889 of 2024 2024:KER:79004
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JUDGMENT
Dated this the 22nd day of October, 2024
The petitioner is aggrieved by the coercive proceedings
initiated at the instance of the respondents without considering
the fact that there is an application filed by him which is
pending, to set aside ex-parte Award as petition No.2345 of
2024.
2. The petitioner obtained a loan of ₹8 lakhs in the year
2015 and failed to repay the amount as his business suffered
loss due to Covid-19 pandemic. The petitioner defaulted in
paying the instalments. The respondents proceeded against
the petitioner filing ARC No.1245 of 2021 and an ex-parte
Award was passed against the petitioner.
3. Now, the respondents are proceeding against the
properties of the petitioner and Execution Application is filed as
E.P No.671 of 2024, to sell the 2.43 Ares of residential property
W.P.(C)No.35889 of 2024 2024:KER:79004
of the petitioner. Actually, the petitioner was not granted any
time to file objection and there is a serious dispute regarding
the Award passed by the respondents. He was ex-parte as he
was laid up due to an operation. Hence, he filed an application
to set aside the ex-parte as petition No.2345 of 2024, but the
respondents are not considering the same, stating that there is
no provision for the same.
4. The issue is well settled by the judgments of this
Court. Even then, the 2nd respondent is not ready to consider
Ext.P2 application. Hence, the petitioner seeks a direction to
consider Ext.P2 application within a time frame, as per the
dictum laid down in Rema Devi v. Joint Registrar (General)
of Co-operative Societies and another [2016 (3) KHC 645].
In the mean time, no further proceedings shall be taken in
execution proceedings, contends the petitioner.
5. Standing Counsel entered appearance on behalf of
the 1st respondent and resisted the writ petition. The Standing
Counsel denied all the allegations made by the petitioner in the
W.P.(C)No.35889 of 2024 2024:KER:79004
writ petition. It is pointed out that the Award was passed on
25.04.2023 and the petitioner has filed Ext.P2 application to set
aside ex-parte Award only on 24.08.2024. There is
considerable delay. Ext.P2 application is therefore not
maintainable.
6. Heard.
7. It is the specific case of the petitioner that he
defaulted in payment during and due to the Covid-19
pandemic. The petitioner was not granted effective opportunity
to defend the Award. Had the petitioner given reasonable time,
the petitioner could have adduced evidence in the arbitration
proceedings. The respondents are proceeding against 2.43
Ares of residential property of the petitioner in E.P.
8. Taking into consideration the fact that the residential
property of the petitioner is proceeded against on the basis of
an ex-parte Award passed without defence, I am of the view
that the petitioner shall be granted opportunity to defend the
arbitration proceedings on merit and on strict conditions.
W.P.(C)No.35889 of 2024 2024:KER:79004
The writ petition is accordingly disposed of directing that if
the petitioner remits an amount of ₹3 lakhs with the
1st respondent within a period of one month from today, the 2 nd
respondent shall consider Ext.P2 application to set aside ex-
parte Award and take appropriate decision thereon in
accordance with law. While considering the application, the 2nd
respondent shall advert to the judgment of this Court in Rema
Devi v. Joint Registrar (General) of Co-operative Societies
and another [2016 (3) KHC 645].
Sd/-
N. NAGARESH
JUDGE
ams
W.P.(C)No.35889 of 2024 2024:KER:79004
APPENDIX OF WP(C) 35889/2024
PETITIONER EXHIBITS
Exhibit-P1 A TRUE COPY OF THE NOTICE IN EP.671 OF
2024 IN ARC.1245 OF 2021 PENDING BEFORE
THE 2ND RESPONDENT DATED 3/7/2024
Exhibit-P2 A TRUE COPY OF THE APPLICATION NO. 2345
OF 2024 IN ARC. 1245 OF 2021 TO SET
ASIDE EX-PARTE PENDING BEFORE THE 2ND
RESPONDENT DATED 24/8/2024
