Njanamuthan C., s/o Chellappan v. Thiruvananthapuram District Co-operative Bank Ltd. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930** **WP(C).No. 15878 of 2008(M)** **---------------------------------------** **PETITIONER:** - **------------------** **NJANAMUTHAN.C., S/O.CHELLAPPAN, VIJESH BHAVAN, THETTIVILA, AADUMANKADU, PURASUVAIKKAL P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.S.MOHAMMED AL RAFI** **RESPONDENTS:** - **----------------------** **1. THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD., REP. BY ITS GENERAL MANAGER, FORT PO, THIRUVANANTHAPURAM.** **2. ASSISTANT REGISTRAR/ARBITRATOR, THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD., THIRUVANANTHAPURAM.** **3. VIJAYAKUMARI, D/O.THANKAYYAN, PILLAVEETTUVILAKOM PUTHEN VEEDU, PARASUVAIKKAL P.O., PARASALA, TRIVANDRUM.** **4. SYLAKUMARI.K., PILLAVEETTUVILAKOM PUTHEN VEEDU, PARASUVAIKKAL P.O., PARASALA, TRIVANDRUM.** **R2 BY SR. GOVERNMENT PLEADER SMT.ANU SIVARAMAN R1 BY ADV. SRI.V.G.ARUN R1 BY ADV. SRI.T.R.HARIKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).15878/2008-M** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE JUDGMENT DATED 30/09/2005 IN O.P. NO.1068/2004 . EXT.P2: COPY OF THE ARBITRATION CASE NO.127/07. EXT.P3: COPY OF THE ARBITRATION CASE NO.128/07. EXT.P4: COPY OF THE WRITTEN STATEMENT IN ARBITRATION CASE 127/07. EXT.P5: COPY OF THE WRITTEN STATEMENT IN ARBITRATION CASE 128/07. EXT.P6: COPY OF THE APPLICATION FILED IN ARBITRATION CASE NO.127/07. EXT.P7: COPY OF THE APPLICATION FILED IN ARBITRATION CASE NO.128/07. EXT.P8: COPY OF THE ORDER DATED 22/04/2008 IN ARBITRATION CASE NO.127/2007. EXT.P9: COPY OF THE ORDER DATED 22/04/2008 IN ARBITRATION CASE NO.128/07.** ## **RESPONDENT'S EXHIBITS: NIL** **/ TRUE COPY //** ## **P.S. TO JUDGE** **Rs/** ## THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C)No.15878 of 2008-M = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25[th] day of July, 2008. ## JUDGMENT **==> picture [37 x 13] intentionally omitted <==** 1.The petitioner is arrayed as a defendant in two arbitration cases filed before the second respondent by the first respondent with respondents 3 and 4 also as defendants. The marriage between the petitioner and the third respondent no more survives in view of the divorce granted as per Ext.P1 order. The petitioner contended before the Arbitrator that the transaction is a fraudulent one and that the documents in favour of the bank were created by respondents 3 and 4 by offering 4.15 Ares of land jointly owned by the petitioner and the third respondent without his knowledge and signatures were forged and the documents are fabricated by respondents 3 and 4. He filed the applications before the Arbitrator to send the disputed WP(C)15878/2008 -: 2 :- documents for expert opinion regarding the signatures. The Arbitrator, as per the impugned orders, held that the Arbitrator exercising the powers under Section 69 of the Kerala Cooperative Societies Act, 1969, does not have the authority to issue such orders and relegated the parties to have a decision obtained from the civil court regarding the binding nature of the document. This is under challenge. - 2.I have heard the learned counsel for the petitioner and the learned counsel for the bank. - 3.Section 69 of the Act provides an exclusionary clause and confers exclusive jurisdiction on the Arbitrator to decide matters which are enumerated as disputes for the purpose of that provision. The Arbitrator so constituted, has all the trappings of a civil court for the purpose of carrying out the process of adjudication, having regard to the different powers conferred for obtaining attendance of witnesses, production and WP(C)15878/2008 -: 3 :- summoning of documents etc. There is also bar of jurisdiction for the civil court to decide on matters which fall under the KCS Act. Obviously, therefore, the power to adjudicate disputes between a creditor and a debtor in relation to a transaction or a matter affecting the business of the society is a matter which the arbitrator has to resolve fully. In doing so, he has necessarily to answer the questions raised, including whether a transaction relied on by the plaintiff is one on which a decree would follow. A defence based on an allegation that the alleged transaction is a fraudulent one and that the documents offered in evidence are fabricated documents is essentially one on which the adjudicator of such a dispute can go into. As regards the nature of jurisdiction of the Tribunal and Arbitrator, profitable reference could be made to the judgments of this Court in Ebrahim Ismail Kunu v. Phasila Beevi [1991 (1) KLT 861], Thankam R. Pillai v. Arbitrator [1996 (1) KLT 225] and Paul v. Asst. Registrar [1998 (2) KLT 449]. I may WP(C)15878/2008 -: 4 :- quote from Ebrahim Ismail Kunu (supra): “A Tribunal should be facilitated to do all that a court could do in similar situations; and much more than that. Greater speed and the total liberation from the tentacles of technicalities, give a better look and greater efficience for effectively manned Tribunals. If there be no statutory prohibition, the Tribunal should therefore normally be in a position to ordain its affairs and modulate its procedures in such a manner as to best subserve the interest of the public, and in particular the litigant public.” 4.The adjudicator, whether the Tribunal or Arbitrator, has to pass an order which would better serve the interest of the litigant and of the Tribunal. The litigant is entitled to a just decision in accordance with law and it is the interest of the Tribunal or Arbitrator to ensure that a just decision is arrived at. For that, apart from facts and law, proper analysis of WP(C)15878/2008 -: 5 :- evidence is necessary. When there is a dispute regarding the credibility of documentary evidence tendered by one party; it being challenged as fabricated, the adjudicator has to decide whether the aid of an expert is required to reach at the conclusion which is just and in accordance with law. It is within the domain of the adjudicator to decide on the dispute placed for adjudication. It is in that process that he uses the aid of experts to come to the conclusion. Therefore, when one of the parties requests the adjudicator to have the documents examined by an expert, to tender evidence by way of expert opinion, the adjudicator cannot shy jurisdiction. In deciding a dispute under Section 69 of the KCS Act, the arbitrator appointed under Section 70 of that Act, has the power to entertain an application to bring in expert evidence, including by sending documents to obtain opinion of experts. Such jurisdiction being available, it is for the arbitrator to consider the applications for such matters, on their merits. Also, the evidentiary WP(C)15878/2008 -: 6 :- value of such opinion, if obtained, is also a matter to be evaluated by the arbitrator, who has to decide on the issue by himself, may be, with the aid of the expert opinion. - 5.The learned arbitrator has gone under a misconception that only the civil court can decide on such an issue. For the aforesaid reasons, the impugned orders are quashed and the writ petition is allowed directing the arbitrator to take up the applications filed by the petitioner, namely, Exts.P6 and P7 and pass orders afresh in the light of what is stated above. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/300708