Nileshwar Block Co-operative Housing Society Ltd. v. E.V. Varghese and Soosamma Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **THURSDAY, THE 26TH DAY OF JULY 2012/4TH SRAVANA 1934** ## **WP(C).No. 7022 of 2011 (C)** ## **--------------------------** ## **PETITIONER(S):** ## **-------------** **THE NILESHWAR BLOCK CO-OPERATIVE HOUSING SOCIETY LTD.NO.C.833, REP. BY ITS, SECRETARY SRI.P.RAMESHAN NAIR, S/O.LATE KORAN NAIR NILESHWAR POST, HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADV. SRI.GRASHIOUS KURIAKOSE** **RESPONDENT(S):** **--------------** **1. SRI.E.V.VARGHESE, S/O.VARGHESE,** **M.NO.2159, ETTIYADATH HOUSE, KAMMADAM** **BEEMANADI VILLAGE, MANDAPAM POST** **VIA. NILESHWAR 671 326.** **2. SMT.SOOSAMMA VARGHESE, W/O.E.V.VARGHESE, M.NO.1234, ETTIYADATH HOUSE, KAMMADAM, MANDAPAM POST BEEMANADI VILLAGE, HOSDURG TALUK KASARAGOD DISTRICT 671 326.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 7022 of 2011 (C)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF THE CLAIM PETITION FILED BY THE PETITIONER.** **EXT.P2: TRUE COPY OF THE AWARD DATED 26.9.2001 OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES.** **EXT.P3: TRUE COPY OF THE REVISION PETITION NO.111/08 FILED BY THE PETITIONER BEFORE THE TRIBUNAL, DATED 4.7.2007** **EXT.P4: TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER BEFORE THE TRIBUNAL.** **EXT.P5:TRUE COPY OF THE ORDER DATED 28.8.2010 IN RP NO.111/2008 OF THE KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM.** ## **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P A TO JUDGE** ## **K.SURENDRA MOHAN,J. --------------------------------------------WP(C).No. 7022 of 2011 ---------------------------------------------Dated this the 26[th] day of July, 2012** ## **J U D G M E N T** A co-operative society registered under the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as 'the Act' for short) is the petitioner. This writ petition is filed challenging Ext.P5 order of the Kerala Cooperative Tribunal, Thiruvananthapuram in R.P.No.111 of 2008. The petitioner had filed the revision petition challenging an award of the Arbitrator dated 26.09.2001, Ext.P2. The petitioner had raised various grounds challenging Ext.P2. But, according to the petitioner, Ext.P5 has been passed mainly on the ground of limitation. Accordingly the petitioner’s revision has been dismissed. The senior counsel Mr.Grashious Kuriakose, who represents the petitioner submits that the question as to whether the petitioner has satisfactorily explained W.P.(C)No.7022 /2011 : 2 : the delay in the revision petition has not been specifically adverted to or considered by the Tribunal, in Ext.P5. The fact that the petitioner is a co-operative society that works on a limited profit, utilizing the funds advanced by their financing agencies and disallowing their claim for the entire amount advanced would cause loss to them, that would ultimately result in winding up of the society itself, was not considered. Since no specific time limit is prescribed for preferring a revision petition, it is contended that the Tribunal exceeded its jurisdiction in dismissing the petitioner’s revision petition on the ground of delay. 2. I have heard the counsel for the petitioner at length. I have also perused the documents produced along with the writ petition and considered the contentions advanced before me, anxiously. 4. A reading of Ext.P5 shows that dismissal of the petitioner's revision is not merely on the ground of delay. I notice that the Tribunal has gone into the merits of the W.P.(C)No.7022 /2011 : 3 : contentions of the petitioner to hold that the Arbitrator had passed the award allowing the plaintiff to realize an amount of `51,930/- with interest thereon at the rate of 15.7% from 01.04.2010 onwards with the subsequent interest and costs alone being disallowed. 5. The learned senior counsel takes strong exception to the action of the Tribunal in not interfering with the award, though there is a specific finding that the subsequent interest was not awarded by the Arbitrator. However, it is to be noticed that on the question as to whether it was necessary to interfere with the award on the said limited ground was considered by the Tribunal with reference to the conduct of the petitioner thereafter. 6. It has been noticed that an Execution Petition had been filed by the petitioner as E.P.No.242 of 2003 for realization of the amount awarded with interest and costs. Though the Execution Petition was not subsequently pressed, it has been noticed by the Tribunal that the entire amount due to the petitioner had been W.P.(C)No.7022 /2011 : 4 : paid in the meantime and that was the reason for not pursuing the Execution Petition subsequently. Thereafter, it appears that a notice was issued by the respondents calling upon the petitioner to refund the excess amount that was allegedly paid by them. It was thereafter that the petitioner had filed the revision petition. From the above facts, taken note of in the impugned order, the Tribunal has come to a conclusion that the petitioner was well aware of the passing of the award and that in spite of the said knowledge, the revision petition was filed only after a lapse of more than seven years of the passing of the award. It has also been noticed that no evidence whatsoever has been produced by the petitioner before the Arbitrator substantiating the contentions raised in the revision petition. For the above reasons, it has been found by the Tribunal that the delay has not been satisfactorily explained. Considering the manner in which the entire issue has been examined by the Tribunal, I am not satisfied that there is any infirmity W.P.(C)No.7022 /2011 : 5 : in Ext.P5 justifying an interference with the same. 7. The learned senior counsel has placed reliance on the decision of this Court reported in **Thajuddin - Shameer v. Secretary Coastal Urban Co operative Bank Ltd. (2004(1) KLT909)** . In the said judgment, this Court had considered the issue as to whether a revision filed beyond a reasonable period of ninety days could be entertained without being supported by a petition for condonation of delay. This Court has held that it is sufficient that the delay is explained satisfactorily in the revision petition itself. 8. Paragraph 9 of the said judgment reads as follows:- 9. Since there is no binding decision on this point under S.84, I think the principle laid down by this Court under S.20 of the Buildings (Lease and Rent Control) Act can be safely followed in this case also. So, if a revision is filed beyond a reasonable time limit, say 90 days, the petitioner should explain in the revision, the reason for the delay. Since there is no limitation prescribed, there need not be any separate petition to condone the delay. The facts which will explain the W.P.(C)No.7022 /2011 : 6 : reasons for the delay should be pleaded in the Revision Petition. If the Tribunal is satisfied that the petitioner was prevented by good reasons from approaching it earlier, the revision can be entertained. 9. It is clear from the above that, the petitioner has to explain the reason for the delay to the satisfaction of the Tribunal before he could claim that the revision petition should be entertained. In the present case, as already found above, there is no satisfactory explanation for the delay. Therefore, the dictum laid down in the above decision cannot help the petitioner **.** For the above reasons, I am not satisfied that the petitioner is entitled to any of the reliefs sought for in this writ petition. The same is accordingly dismissed. Sd/- **K.SURENDRA MOHAN, JUDGE** kkj //True copy// PA to Judge.