Federal Bank Limited v. Biji George and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** ## **OP(C) NO. 1099 OF 2013** **AGAINST THE ORDER/JUDGMENT OS 31/2006 OF SUB COURT / COMMERCIAL** ## **COURT, PATHANAMTHITTA** ## **PETITIONER:** **THE FEDERAL BANK LIMITED, ELANTHOOR BRANCH REPRESENTED BY ITS SENIOR MANAGER, PIN 689 643. BY ADVS. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHY SMT.REENA THOMAS** ## **RESPONDENTS:** **1 BIJI GEORGE S/O.LATE GEORGE VARGHESE (SR) AMBATTU HOUSE, MELUKARA MURI, KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. 689 641. 2 K.V.VARGHESE S/O.K.V.VARGHESE, KARAMVELIL HOUSE, KARAMVELIL MURI ELANTHOOR VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. 689 643.** - **3 VALSA GEORGE D/O.LATE GEORGE VARGHESE (SR), AMBATTU HOUSE, MELUKARA MURI, KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. 689 641.** **4 JOSEPH GEORGE S/O.LATE GEORGE VARGHESE (SR), AMBATTU HOUSE, MELUKARA MURI, KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. 689 641.** **O.P.(C)NO.1099 of 2013** **2** **5 DR.THRESSIAMMA W/O.LATE GEORGE VARGHESE (JR), AMBATTU HOUSE, MELUKARA MURI, KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. 689 641.** **6 SEN THERES GEORGE, D/O DR.THRESSIAMMA, AMBATTU HOUSE, MELUKARA MURI, KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. 689 641. 7 SARA, W/O.LATE SALIM GEORGE, PUTHEN VEETTIL, MELECHERI P.O, KIDANGOOR, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. 689 541. 8 JIBIN, AGED 11 YEARS, S/O.LATE SALIM GEORGE, REPRSENTED BY HIS MOTHER, SARO, W/O.LATE SALIM GEORGE, PUTHEN VEETTIL, MELECHERI P.O, KIDANGOOR, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. 689 541** **BY ADV SRI.C.P.SAJI** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(C)NO.1099 of 2013** **3** ## **JUDGMENT** ## **Dated this the 20[th] day of October, 2022** Aggrieved by Ext.P6 award passed by the Pathanamthitta District Legal Service Authority, the plaintiff in O.S.No.31/2006 of the Court of the Subordinate Judge, Pathanamthitta, has filed the original petition. The defendants in the suit are the respondents. 2. The skeletal facts, relevant for the determination of the original petition, are: the petitioner had filed the suit against the respondent to recover an amount of Rs.5,29,330/-. The suit was included in the special list. The petitioner filed its proof affidavit and the suit was decreed on 27.06.2009, as per Ext.P2. The petitioner laid the decree to execution by filing E.P.No.170/2009, to realise Rs.9,62,795/-. Then, the 1st respondent filed I.A.No.919/2009 (Ext.P4) to set aside the ex-parte **O.P.(C)NO.1099 of 2013** **4** decree. The court below allowed the application by Ext.P5 order. On the request made by the learned counsel appearing for the respondents, the parties were referred to the Adalath. On 17.06.2010, the petitioner and the 1st respondent settled the dispute in the Adalath. award was Consequentially, Ext.P6 passed, by granting substantial reduction to the decree amount. The respondents committed default in paying the award amount within the stipulated time. The petitioner again filed E.P.No.42/2011. Then, the respondents objected to the execution petition, inter alia, contending that all of them had not joined the compromise, therefore, Ext.P6 award is bad and unenforcible against them. Accepting the contentions of the respondents, the court below dismissed the execution petition by Ext.P8 order. Even though the petitioner filed I.A.Nos.569/2012, 570/2012, to set aside the award and restore the suit to file, the court below held that it has no jurisdiction to entertain the **O.P.(C)NO.1099 of 2013** **5** application. The petitioner is left no remediless. Hence, the original petition. 3. Heard; Sri.Mohan Jacob George, the learned counsel appearing for the petitioner and Sri.C.P.Shaji, the learned counsel appearing for the respondents. 4. The question is whether Ext.P6 award is to be set aside. 5. The petitioner had filed the suit as against the respondents, for realisation of money. The suit was once decreed and the petitioner had filed E.P.No.170/2009 to execute the decree. Later, the decree was set aside. At the instance of the 1[st] respondent, the parties were referred to the Lok Adalath and the petitioner and the 1[st] respondent arrived at an understanding, wherein the 1[st] respondent agreed to pay the petitioner an amount of Rs.6 Lakh/- on or before 31.10.2010. Consequently Ext.P6 award was passed. But, the 1[st] respondent defaulted in paying the agreed amount. Thus, the **O.P.(C)NO.1099 of 2013** **6** petitioner filed E.P.No.42/2011 to execute the award. The respondents objected to the execution petition contending that as they are not signatories to the compromise, the award is not binding on them. The court accepted the objection and dismissed E.P.No.42/2011. Even though the petitioner filed an application to restore the suit, the said application was also dismissed. 6. This Court in **Rajagopala Rao G.K. and Another v. State Police Chief and Others [2016 (3) KHC 917]** and **Sunil K.S v. Sherly and Another [2016 (4) KHC 397],** has categorically held that a casual approach shall not be adopted while passing awards by the Lok Adalath. It is necessary that all the parties to the proceeding join in the compromise and due care is taken by the Adalaths before passing an award. 7. In the case at hand, admittedly, it is only the petitioner and the 1[st] respondent, who have joined and **O.P.(C)NO.1099 of 2013** **7** signed the compromise petition. The Adalath without insisting the presence and signatures of the respondents 2 to 8 has passed Ext.P6 award in a casual manner. Thereafter, when Ext.P6 award was laid to execution, the respondents 2 to 8 have raised a objection that the award is unenforcible as against them, as they are not signatories to the compromise. Thus, the petitioner is left high and dry, and remediless. 8. In the light of the law laid down by this Court in the aforecited decisions, I am of the definite view that Ext.P6 award is bad, irregular and improper, and is therefore liable to be set aside, and consequentially the suit be restored back to file, which would render complete justice. In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I allow the original petition in the following manner:- **O.P.(C)NO.1099 of 2013** **8** i) Ext.P6 award passed by the District Legal Services Authority, Pathanamthitta, is set aside. ii) O.S.No.31/2006 of the Court of the Subordinate Judge, Pathanamthitta is restored back to file. iii) The parties are directed to appear before the court below through counsel on 21.11.2022. iv) The court below shall, keeping in mind the fact that the suit is of the year 2006, proceed with O.S.No.31/2006 from the stage it was referred to the Adalath, and dispose of the same, in accordance with law, as expeditiously as possible. **Sd/C.S.DIAS Judge** **==> picture [412 x 69] intentionally omitted <==** NR/20/10/2022 ## **O.P.(C)NO.1099 of 2013** ## **9** ## **APPENDIX** **PETITIONER'S EXHIBITS Exhibit P1 COPY OF THE PLAINT IN OS 31/2006 OF THE SUB COURT, PATHANAMTHITTA.** **Exhibit P2** **COPY OF THE JUDGMENT DATED 27.6.2009.** **Exhibit P3** **COPY OF EP 170/2009 FILED BY THE PLAINTIFF DECREE HOLDER.** **Exhibit P4 COPY OF THE IA NO.919/2009.** **Exhibit P5 COPY OF THE ORDER DATED 9.2.2010 IN IA NO.919/2009.** **Exhibit P6 COPY OF THE AWARD PASSED BY THE ADALATH.** **Exhibit P7 COPY OF THE ORDER DATED 18.6.2010 IN OS NO.31/2006.** **Exhibit P8 COPY OF THE ORDER DATED 15.3.2012 IN EP NO.42/2011 IN OS NO.31/2006.**