Petitioner seeks quashing of award and execution proceedings due to alleged lack of notice service; court quashes award and orders fresh arbitration with notice.
quash award and order fresh arbitration with notice; direct bank to present papers; stay further execution proceedings
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE S.SIRI JAGAN
THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931
WP(C).No. 24638 of 2009(Y)
PETITIONER(S):
P.P.SHAJI, S/O.LATE PARAMESHWARAN ASHARI AGED 44 EDASSERRIL, KANJIRAMATTOM, THODUPUZHA.
BY ADV. SMT.R.RANJINI
RESPONDENT(S):
CO-OPERATIVE SOCIETY, THIRUVANANTHAPURAM.
CO-OPERATIVE SOCIETIES, IDUKKI, PAINAV.
GOVERNMENT PLEADER SRI. K.S. MUHAMMED HASHIM
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PETITIONER'S EXHIBITS: W.P.C.NO. 24638/2009
EXT.P1 PHOTOCOPY OF THE RECEIPTS. EXT.P2 APPLICATION DT. 30-3-2009. EXT.P3 REMINDED APPLICATION DT. 13-5-2009. EXT.P4 APPEAL PETITION DT. 8-7-2009. EXT.P5 PHOTOCOPY OF THE AWARD. EXT.P6 CIRCULAR DT. 3011-2006. EXT.P7 PHOTOCOPY OF DEMAND NOTICE.
RESPONDENTS' EXHIBITS:
EXT.R4(a) & (b) DEMAND NOTICE DT. 14-12-2001 AND 5-12-2002. EXT.R4(c) TRUE COP OF APPLICATION.
[TRUE COPY]
P.S TO JUDGE.
S. Siri Jagan, J.
W. P (C) No. 24638 of 2009
Dated this, the 15th October, 2009.
J U D G M E N T
The petitioner availed of a loan of Rs. 25,000/- from the 3rd respondent-bank in February, 1999. The petitioner defaulted repayment of the same. But the petitioner claims that the petitioner was not informed about any proceedings for recovery. Now the petitioner has been served with a notice regarding execution of an award passed by the 2nd respondent in an ARC filed by the 3rd respondent-bank. The petitioner challenges the proceedings inter alia on the ground that in the ARC, the petitioner was not given notice. The petitioner therefore seeks the following reliefs:
“(i) Call for the records leading to Ext. P5 and P7 and quash them by issuance of a writ of certiorari or any appropriate writ, order or direction.
(ii) issue appropriate direction to the respondents 3 and 4 to serve the copies of the documents, required to by the petitioner in Ext. P2 application.
(iii) issue a declaration that the rate of interest claimed in Ext. P5 award is highly unconscionable, excessive and arbitrary.
(iv) issue appropriate direction to the 3rd respondent to arrive at a just and fair calculation statement detailing the remittances already made by the petitioner and the amount actually due from the petitioner, in the light of the guidelines framed by the 1st respondent for fair recovery of loan from the creditors, and serve a copy of such statement to the petitioner.
(v) pass an order of stay of all further proceedings pursuant to Ext. P7 demand notice or any other steps to recover the amount demanded therein.”
W.P.C. No. 24638/09 -: 2 :-
that there is no concrete evidence to prove that notice has been served on the petitioner. But, an affidavit is filed by the arbitrator, who passed the award in ARC No. 1656/2000, wherein he has stated that he caused service of notice on the respondent. But, at the same, time, he also admits that the records are not available to prove the same. I am at a loss to understand how a person who has passed an award years ago can, with any amount of certainty, remember whether notice in that ARC had been served on the respondent. That being so, I am not inclined to accept the averments in the affidavit of the arbitrator at its face value. It is admitted that there is nothing on record to show that notice has been served on the petitioner in the ARC. That being so, the award in the ARC and the execution proceedings pursuant thereto are liable to be quashed.
Accordingly, I quash Exts. P5 and P7. The arbitrator is directed to adjudicate the ARC afresh after serving notice to the petitioner expeditiously. The 3rd respondent, who has not cared to appear before this Court in spite of receipt of notice, is directed to present all papers before the arbitrator for fresh proceedings , in view of the fact that records of the ARC are missing.
The writ petition is allowed as above.
Sd/- S. Siri Jagan, Judge.
Tds/
2 issues framed by the court
Whether the petitioner was duly served notice in the arbitration proceeding leading to the award being executed.
Whether the award and execution proceedings should be quashed due to lack of proof of notice service.
P.P. Shaji, S/O. Late Parameswaran Ashari
Registrar Cooperative Society, Thiruvanthapuram
Joint Registrar Cooperative Societies, Idukki
Thodupuzha Urban Bank (Group) No. 394, Thodupuzha, rep by its Secretary
Special Sale Officer Thodupuzha Urban Bank (Group)
Co-operative Assistant Registrar (GI Thodupuzha)
S. Siri Jagan
As recorded by the court registry
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