High Court of KeralaSingle Judgedisposed of with directions to the 2nd responde...

Ajayakumar K.K. and Shyamalakumariamma v Njeezoor Service Co-operative Bank Ltd. and The Assistant Registrar of Co-operative Societies (General), Arbitration and Execution General Office, Vaikom

Case / Petition Number:WP(C) NO. 39747 OF 2022; WP(C) NO. 40442 OF 2022; WP(C) NO. 42473 OF 2022

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Gopinath P.
Judgment Date
2023-04-10
Court Decision / Holding
The petitions are disposed of by directing the 2nd respondent to consider and pass orders on the separate applications filed by the petitioners in respect of the awards after affording an opportunity of hearing within two months from the date of receipt of a certified copy of the judgment. Further, recovery of amounts due under the awards shall be kept in abeyance if the petitioners pay 25% adjudicated under each award within one month from today, with such payments to be adjusted against the loan liability.
Final Disposition
disposed of with directions to the 2nd respondent to hear and decide the set-aside applications within two months and to keep execution in abeyance on deposit of 25% under each award within one month; deposits to be adjusted against liability.

Parties to the Case

Appellants / Petitioners

  • Ajayakumar K.K.
  • Shyamalakumariamma
  • Sreeja P.V.

Respondents

  • Njeezoor Service Co-operative Bank Ltd.
  • The Assistant Registrar of Co-operative Societies (General), Arbitration and Execution General Office, Vaikom

Legal Representation & Advocates

Counsels for Petitioners

  • • V. Visal Ajayan

Counsels for Respondents

  • • Karthikeyan M.G.
  • • Nireesh Mathew (K/973/1994)

Case Synopsis & Summary

The writ petitions—WP(C) Nos. 39747/2022, 40442/2022 and 42473/2022—arise from separate awards issued under the Kerala Cooperative Societies Act against the petitioners for defaults on loans from the Njeezoor Service Co-operative Bank. The petitioners (husband and wife in 39747/2022 and 40442/2022; Sreeja P.V. in 42473/2022) challenge the ex parte awards, seeking setting aside on grounds of lack of opportunity to present a defence and due process. They prayed that the 2nd respondent (Arbitration and Execution General Office) be directed to consider their applications for setting aside the ex parte awards after hearing and that execution of the awards be kept in abeyance pending disposal of those applications. The bank contends that the awards were passed in 2018 and that the petitioners have shown no bonafide basis to stall payment. The court cites Rema Devi and others v. Joint Registrar of (General) Co-operative Societies (2016) 3 KHC 645 to emphasize fair consideration of such applications. Ultimately, the court disposes of the petitions by directing the 2nd respondent to hear and decide within two months, and to suspend further recovery if the petitioners deposit 25% of adjudicated amounts within one month, with such deposits to be adjusted against the liability. The petitions’ exhibits include the awards (Exhs. P1–P3) and applications to set aside.

Provisions of Law Cited

Kerala Cooperative Societies Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that the ex parte awards should be tested on their merits. They filed separate applications to set aside the ex parte awards before the 2nd respondent and urged that, pending disposal, execution should be kept in abeyance. They relied on the principle that due process requires hearing and opportunity to defend, and invoked Rema Devi (2016 (3) KHC 645) to justify timely consideration. They asserted there was no deliberate attempt to evade liability and sought fair consideration with the possibility of a payment plan if warranted.

Contentions of Respondents

The respondents contended that the awards were issued in 2018 and that there is no demonstrable bonafide reason for delay in seeking setting aside. They urged that the petitions should be permitted to proceed only with timely action and that the bank be allowed to continue recovery where appropriate. They opposed indefinite delay and emphasized enforcing the liability as adjudicated, subject to any future legal challenge on merits.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Rema Devi and others v. Joint Registrar of (General) Co-operative Societies, Ekm and another2016 (3) KHC 645PositiveThe court cites and follows the principle in Rema Devi regarding setting aside ex parte awards and the need for providing hearing and proper consideration, guiding its disposition.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945** **WP(C) NO. 39747 OF 2022** ## **PETITIONERS:** 1 AJAYAKUMAR K.K., AGED 56 YEARS S/O KRISHNAPILLAI, KUTTIKKATTIL HOUSE, KOORAPPALLIL, KATTAMPACK, KOTTAYAM, PIN:686612 2 SHYAMALAKUMARIAMMA,, AGED 73 YEARS, W/O KRISHNAPILLAI, KUTTIKKATTIL HOUSE, KOORAPPALLIL, KATTAMPACK, KOTTAYAM, PIN:686612. BY ADV V.VISAL AJAYAN ## **RESPONDENTS:** 1 NJEEZHOOR SERVICE CO-OPERATIVE BANK REG.NO.136, NJEEZHOOR, KOTTAYAM,PIN:686612 REPRESENTED BY IT'S SECRETARY. 2 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENRAL), ARBITRATION AND EXECUTION GENERAL OFFICE, VAIKOM, PIN: 686141. BY ADVS. KARTHIKEYAN M.G. NIREESH MATHEW(K/973/1994) ## **OTHER PRESENT:** SMT. RESHMI THOMAS (GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.04.2023, ALONG WITH WP(C).40442/2022, 42473/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) Nos.39747, 40442 and 42473/2022 -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945** ## **WP(C) NO. 40442 OF 2022** ## **PETITIONERS:** 1 AJAYAKUMAR K.K. AGED 56 YEARS S/O. KRISHNAPILLAI, KUTTIKKATTIL HOUSE KOORAPPALLIL, KATTAMPACK, KOTTAYAM, PIN-686 612 2 SREEJA.P.V., AGED 48 YEARS W/O. AJAYKUMAR K.K.K., KUTTIKKATTIL HOUSE, KOORAPPALLIL, KATTAMPACK, KOTTAYAM,PIN-686 612 BY ADV V.VISAL AJAYAN ## **RESPONDENTS:** 1 NJEEZHOOR SERVICE CO-OPERATIVE BANK REG NO.136, NJEEZHOOR, KOTTAYAM ,PIN-686 612, REPRESENTED BY ITS SECRETARY. 2 THE ASSISTANT REGISTRAR CO-OPERATIVE SOCIETIES (GENERAL), ARBITRATION AND EXECUTIVE GENERAL OFFICE, VAIKOM, PIN -686 141 BY ADVS. KARTHIKEYAN M.G. NIREESH MATHEW(K/973/1994) ## **OTHER PRESENT:** SMT. RESHMI THOMAS (GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.04.2023, ALONG WITH WP(C).39747/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) Nos.39747, 40442 and 42473/2022 -3- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945** ## **WP(C) NO. 42473 OF 2022** ## **PETITIONER:** SREEJA P.V. AGED 48 YEARS W/O AJAYKUMAR KK, KUTTIKKATTIL HOUSE, KOORAPPALLIL, KATTAMPACK, KOTTAYAM, PIN:686612. BY ADV V.VISAL AJAYAN ## **RESPONDENTS:** 1 NJEEZHOOR SERVICE CO-OPERATIVE BANK LTD. REG.NO.136, NJEEZHOOR, KOTTAYAM, PIN:686612, REPRESENTED BY IT'S SECRETARY. 2 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENRAL) ARBITRATION AND EXECUTION GENERAL OFFICE, VAIKOM, PIN: 686141. BY ADVS. KARTHIKEYAN M.G. NIREESH MATHEW(K/973/1994) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.04.2023, ALONG WITH WP(C).39747/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) Nos.39747, 40442 and 42473/2022 -4- ## **J U D G M E N T** The petitioners in these cases are husband and wife. They availed separate loans from the 1[st] respondent society. On default being committed, proceedings were initiated against the petitioners under the provisions of the Kerala Cooperative Societies Act. Separate awards have been obtained against the petitioner in respect of the different loans. The awards were on record in these writ petitions as Exts.P1 (in all cases). The petitioners in these cases have filed separate applications for setting aside the _ex-parte_ award. The learned counsel for the petitioner would submit that the applications for setting aside the ex parte award may be directed to be considered by the 2[nd] respondent and till such time the execution of the awards may be kept in abeyance. 2. The learned counsel appearing for the 1[st] respondent society would submit that the awards were passed in the year 2018 and though no time limit has been fixed for filing applications for setting aside the ex parte award, the same should have been filed within a reasonable time and that there is absolutely no bonafides and the petitioners are clearly attempting to avoid payment of the liability determined in terms of the award. He therefore submits that the petitioners may be put on terms. 3. Having heard the learned counsel appearing for the petitioners in these cases and the learned counsel appearing for the 1[st] respondent bank and having regard to the law laid down by this court in _**Rema Devi and others v. Joint Registrar of (General) of Co-operative Societies, Ekm and another; 2016 (3) KHC 645**_ , these writ petitions will stand disposed of directing the 2[nd] respondent to consider and pass orders on the separate applications filed by the W.P (C) Nos.39747, 40442 and 42473/2022 -5- petitioners in these cases in respect of the awards issued determining the amounts payable by them after affording an opportunity of hearing to the petitioners and the 1[st] respondent bank within a period of 2 months from the date of receipt of a certified copy of this judgment. Further proceedings for recovery of the amounts due under the awards shall be kept in abeyance if the petitioners pay to the bank a sum equivalent of 25% adjudicated under each of the awards within a period of one month from today. The amounts paid shall be adjusted against the loan liability. Sd/- **GOPINATH P. JUDGE** AMG W.P (C) Nos.39747, 40442 and 42473/2022 -6- ## **APPENDIX OF WP(C) 40442/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AWARD PASSED BY THE 2ND RESPONDENT IN ARC NO.531/2022 DATED 23.03.2022 Exhibit P2 TRUE COPY OF THE APPLICATION TO SET ASIDE THE EXPARTE AWARD FILED BY THE 1ST PETITIONER IN ARC NO.531/2022 BEFORE THE 2ND RESPONDENT DATED 13.12.2022 Exhibit P3 TRUE COPY OF THE RECEIPT OF THE REGISTERED POST DATED 13.12.2022 W.P (C) Nos.39747, 40442 and 42473/2022 -7- ## **APPENDIX OF WP(C) 42473/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AWARD OF THE 2ND RESPONDENT IN ARC NO.1197/2021 DATED 30.11.2021. Exhibit P2 TRUE COPY OF THE APPLICATION TO SET ASIDE THE EXPARTE AWARD FILED BY THE PETITIONER IN ARC NO.1197/2021 BEFORE THE 2ND RESPONDENT DATED 22.12.2022. Exhibit P3 TRUE COPY OF THE RECEIPT OF THE REGISTERED POST DATED 22.12.2022. W.P (C) Nos.39747, 40442 and 42473/2022 -8- ## **APPENDIX OF WP(C) 39747/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AWARD OF THE 2ND RESPONDENT IN ARC NO.2856/2020DATED 28.01.2021. Exhibit P2 TRUE COPY OF THE APPLICATION TO SET ASIDE THE EX-PARTE AWARD FILED BY THE PETITIONER IN ARC NO.2856/2020 BEFORE THE 2ND RESPONDENT DATED 7.12.2022. Exhibit P3 TRUE COPY OF THE RECEIPT OF THE REGISTERED POST DATED 28.11.2022.