Express Publications (Madurai) Limited vs Express Group Employees Credit Co-Operative Society Limited

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 10TH DAY OF JANUARY 2020 / 20TH POUSHA, 1941** **WA.No.10 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 33138/2018(N) DATED 9.10.2019** ## **APPELLANTS/PETITIONERS:** **1 EXPRESS PUBLICATIONS(MADURAI)LIMITED EXPRESS GARDENS, AMBATHUR INDUSTRIAL ESTATE, CHENNAI-600058, REPRESENTED BY ITS CHAIRMANCUM-MANAGING DIRECTOR, REPRESENTED BY POWER OF ATTORNEY HOLDER P.VISHNU KUMAR, DEPUTY GENERAL MANAGER, KERALA, EXPRESS PUBLICATIONS (MADURAI) LTD., EXPRESS HOUSE, KALOOR, KOCHI.** **2 CHAIRMAN-CUM-MANAGING DIRECTOR, EXPRESS PUBLICATIONS (MADURAI) LTD., EXPRESS GARDENS, AMBATHUR INDUSTRIAL ESTATE, CHENNAI-600058, REPRESENTED BY POWER OF ATTORNEY HOLDER P.VISHNU KUMAR, DEPUTY GENERAL MANAGER, KERALA, EXPRESS PUBLICATIONS (MADURAI) LTD., EXPRESS HOUSE, KALOOR, KOCHI.** - **3 THE DEPUTY GENERAL MANAGER, KERALA, EXPRESS PUBLICATIONS (MADURAI) LTD., EXPRESS HOUSE, KALOOR, KOCHI.** **BY ADVS.** **SRI.B.S.SWATHY KUMAR SMT.ANITHA RAVINDRAN** **W.A.10/2020** 2 ## **RESPONDENTS/RESPONDENTS:** **1 EXPRESS GROUP EMPLOYEES CREDIT CO-OPERATIVE SOCIETY LIMITED NO.E-720** **FORTUNE TOWER, JUDGES AVENUE, KALOOR, KOCHI, PIN-682017, REPRESENTED BY ITS CONVENOR, ADMINISTRATIVE COMMITTEE.** **2 THE ARBITRATOR/ DEPUTY REGISTRAR, ADMINISTRATION, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KAKKANAD, KOCHI-682020.** ## **SR.G.P.RENIL ANTO KANDAMKULATHY** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.10/2020** 3 ## **JUDGMENT** _Ravikumar, J._ This intra court appeal is directed against judgment dated 9.10.2019 in W.P.(C) No.33138 of 2019. The petitioners/appellants herein filed the writ petition challenging Ext.P6 order and seeking for a declaration that Ext.P1 petition is not maintainable. The further prayer was for issuance of a writ of certiorari quashing Exts.P1 and P6. The first respondent herein raised a dispute under section 69 of the Kerala Co-operative Societies Act (for short, the 'KCS Act'). It is pending before the Arbitrator, the second respondent, as ARC No.581/2017. The same was filed seeking an award permitting the plaintiff to realise Rs.81,22,883/- with interest at the rate of 17.5% per annum thereon till actual payment from the defendants/appellants. In the arbitration case, the appellants filed I.A No.1 of 2018 raising objection regarding the maintainability of Ext.P1 besides raising the question of limitation. In fact, the contention of the petitioners is that the dispute is not one referable to section 69 of the KCS Act. Since **W.A.10/2020** 4 the said objection was not considered, the appellants herein approached this Court by filing W.P.(C) No.4149 of 2018. Same was disposed of as per Ext.P4 judgment dated 7.02.2018. Obviously, the appellants/petitioners were given liberty to raise the said issues before the second respondent. Furthermore, it was directed that in case the petitioners/appellants herein raise such an objection, the second respondent shall consider the same and pass appropriate orders after hearing the appellants and the first respondent herein before proceeding further. Evidently, Ext.P6 order was passed by the second respondent in pursuance of Ext.P4 judgment. It is being aggrieved by Ext.P6 that W.P.(C).No.33138 of 2018 has been filed by the petitioners seeking the aforementioned prayers. 2. As per the impugned judgment, the learned Single Judge held that not withstanding the impugned Ext.P6 order, the appellants would be free to raise all their objections at the time of final hearing. The impugned order would reveal that such a liberty was granted taking note of the fact that the Arbitrator had not considered the twin grounds **W.A.10/2020** 5 raised by the petitioners in I.A No.1 of 2018 in ARC No.581/2017. That apart, this Court directed the Arbitrator to dispose of the arbitration case as expeditiously, at any rate, within a period of three months. It is on being aggrieved by the aforesaid judgment that the captioned appeal has been preferred. 3. Heard the learned counsel for the appellants and also the learned Government Pleader. As noticed hereinbefore, in I.A.No.1 of 2018, the appellants/petitioners had raised two grounds before the Arbitrator. The first ground is that Ext.P1 in ARC is not maintainable as the dispute raised thereunder is not one referable to section 69 of the KCS Act. The second ground is that the claim raised thereunder is barred by limitation. With respect to the issue of limitation, to drive home their contention, the petitioners/appellants relied on a decision of a Division Bench of this Court in which one among us was a member (CTR (J)) in **Abdulla v. Ismalutty Master [2018 (5) KHC 426 (DB)]** . In the said decision, this Court virtually relied on a decision of the Hon'ble Apex Court in **Ramesh B. Desai and others** **W.A.10/2020** 6 **v. Bipin Vadilal Mehta and others [2006 KHC 837]** rendered after referring to the decision in **Balasaria Construction (P) Ltd. v. Hanuman Seva Trust [2006 KHC 838]** . In the said decision, after referring to Order14 Rule 2 of the Code of Civil Procedure, the Hon'ble Apex Court held that the Code did not confer jurisdiction to decide a mixed question of fact and law as a preliminary issue unless the facts are clear from the plaint itself. A mixed question of fact and law can be decided on the principle of demurrer. Furthermore, it was held therein that whether a decision on an issue of law depends upon the decision of fact, it could not be tried as a preliminary issue. Obviously, the attempt on the part of the appellants is to canvass the position that facts are clear from the complaint viz., Ext.P1 itself and therefore it is only just and proper to decide the question as a preliminary issue. 4. We have carefully considered the contentions. Obviously, the dictum laid down in **Abdulla** 's case (supra) is that the question whether an issue can be decided as a preliminary question depends **W.A.10/2020** 7 upon various factors. In the absence of any specific enactment which is a valid legislation making it mandatory to decide the question of limitation as a preliminary issue, the court is bound to consider all the issues and question of limitation cannot be decided as a preliminary issue. Obviously, the contention of the petitioners is that since the facts are very clear from the pleadings in the arbitration case the question of limitation would be considered as preliminary issue. In that context, it is to be noted that question of limitation, as rightly held by the learned Single Judge, is a mixed question fact and law. To consider the question of limitation, necessarily, the starting point of limitation has to be decided and that question is nothing but a factual issue. That apart, on going through the judgment in W.P.(C).No.4149 of 2018, it is evident that taking note of the fact that the issues raised in I.A No.1/2019 were not considered by the second respondent notwithstanding the passing of Ext.P6 order, this Court granted liberty to the appellants to raise all their objections at the time of final hearing. In this context, it is relevant to take note of the fact that the **W.A.10/2020** 8 other contention of the appellants is that the dispute raised under Ext.P1 is not one which is referable to section 69 of the KCS Act. Necessarily, to consider that question also, the Arbitrator has to consider the pleadings and provide opportunity to parties to let in evidence. Taking into account the case raised under Ext.P1 and the contentions raised by the appellants herein to resist the contentions in Ext.P1, we do not find any legal infirmity or illegality in the impugned judgment whereunder the learned Single Judge taking note of the fact that the Arbitrator had failed to consider the objections in detail, granted liberty to the appellants to raise all their objections. Needless to say that when such liberty was granted by this Court notwithstanding Ext.P6, Arbitrator is bound to consider those specific objections raised by the appellants/petitioners. We are of the view that the appellants/petitioners cannot therefore, contend that it should be decided as a preliminary question in the circumstances. We are also at a loss to understand in what manner the appellants are aggrieved by the impugned judgment. When liberty was granted to raise all the **W.A.10/2020** 9 objections including the twin contentions raised specifically by way of objection, the appellants/petitioners cannot contend that the impugned judgment, in any way, is adverse to them. Merely because the learned Single Judge declined to issue a direction to consider those points as preliminary issues, it cannot be said that the appellants/petitioners are aggrieved by impugned judgment or it is prejudicial to the interest of the appellants. 5. The learned counsel for the appellants would further contend that the fixation of time limit viz., three months for the disposal of the arbitration case would adversely affect the appellants/petitioners inasmuch as it might deprive them the opportunity to let in evidence properly. It is contended by the learned counsel for the appellants that application was made to the first respondent for getting copies of certain documents. The appellants are yet to receive the copies of such documents. Delay in supplying such documents would adversely affect the interest of the appellants and it might ultimately prove fatal. At this juncture, the learned counsel for the first respondent submitted **W.A.10/2020** 10 that documents sought for can be supplied. Be that as it may, in case of any inordinate delay in the matter of supplying such documents, it will be open to the appellants/petitioners to move the Arbitrator for getting time to file written statement. At the same time, we may caution that even while considering any such request, the second respondent shall see to it that the proceedings are not protracted. In view of the above conclusions and findings, we do not find any reason to interfere with the judgment in W.P.(C) No. 33138 of 2018. Hence, subject to what is held as above, this appeal is dismissed. **Sd/-** **C.T.RAVIKUMAR JUDGE Sd/N.NAGARESH JUDGE** **spc/**