OP(C) Nos. 3080/2017 & 3103/2017 — Rajan S/o Lakshmanan v. ELSI Augustine; Boby Augustine; Abi Augustine; and Sasidharan S/o Sreedharan v. ELSI Augustine; Boby Augustine; Abi Augustine

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940** ## **OP(C).No. 3080 of 2017** **AGAINST THE ORDER/JUDGMENT IN RP 25/2013 of KERALA CO-OP.TRIBUNAL, THIRUVANANTHAPURAM. DATED 25-08-2017** ## **PETITIONER/S:** **RAJAN S/O.LAKSHMANAN, VELUKKATHAL PARAMBU VEEDU, KOOTHATTUKULAM POST, KIDAMANGALAM, ERNAKULAM DT.** **BY ADVS. SRI.N.K.SUBRAMANIAN SRI.B.A.EASWAR PRASAD SRI.K.C.KURIYAN SRI.S.ANANTHAKRISHNAN** ## **RESPONDENT/S:** |**1**|**ELSI AUGUSTINE**| |---|---| ||**W/O.LATE AUGUSTINE, PANIKULANGAR,**| ||**VIVEKANANDA NAGAR ROAD,MANNAM, PARAVOOR TALUK,**| ||**ERNAKULAM DT.-683520.**| |**2**|**BOBY AUGUSTINE**| ||**S/O.LATE AUGUSTINE, PANIKULANGAR,**| ||**VIVEKANANDA NAGAR ROAD,MANNAM, PARAVOOR TALUK,**| ||**ERNAKULAM DT.-683520.**| |**3**|**ABI AUGUSTINE**| ||**S/O.LATE AUGUSTINE, PANIKULANGAR,**| ||**VIVEKANANDA NAGAR ROAD,MANNAM, PARAVOOR TALUK,**| ||**ERNAKULAM DT.-683520.**| ||**BY ADVS.**| ||**SMT.INDU SUSAN JACOB**| ||**SRI.LIJU.V.STEPHEN**| **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 31.07.2018, ALONG WITH OP(C).3103/2017, THE COURT ON 17.10.2018 PASSED THE FOLLOWING:** _OP(C)Nos.3080 & 3103 of 2017_ 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940** **OP(C).No. 3103 of 2017** **AGAINST THE ORDER/JUDGMENT IN RP 23/2013 of KERALA CO-OP.TRIBUNAL, THIRUVANANTHAPURAM.** ## **PETITIONER/S:** **SASIDHARAN S/O. SREEDHARAN,MANAPURATHU VEEDU, KEEZHAKPRA MURI,KOTTUVALLY VILLAGE, PARAVOOR TALUK, ERNAKULAM DT.** **BY ADVS. SRI.N.K.SUBRAMANIAN SRI.B.A.EASWAR PRASAD SRI.K.C.KURIYAN SRI.S.ANANTHAKRISHNAN** ## **RESPONDENT/S:** **1 ELSI AUGUSTINE W/O. LATE AUGUSTINE,PANIKULANGAR, VIVEKANANDA NAGAR ROAD,MANNAM, PARAVOOR TALUK, ERNAKULAM DT.- 683520. 2 BOBY AUGUSTINE S/O. LATE AUGUSTINE,PANIKULANGAR, VIVEKANANDA NAGAR ROAD,MANNAM, PARAVOOR TALUK, ERNAKULAM DT.- 683520. 3 ABI AUGUSTINE S/O. LATE AUGUSTINE,PANIKULANGAR, VIVEKANANDA NAGAR ROAD,MANNAM, PARAVOOR TALUK, ERNAKULAM DT.- 683520. BY ADVS. SMT.INDU SUSAN JACOB SRI.LIJU.V.STEPHEN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 31.07.2018, ALONG WITH OP(C).3080/2017, THE COURT ON 17.10.2018 PASSED THE FOLLOWING:** _OP(C)Nos.3080 & 3103 of 2017_ 3 ## **JUDGMENT** ## **[OP(C) 3080/2017, OP(C)3103/2017]** These Original Petitions are filed under Article 227 of the Constitution of India challenging the order of the Kerala Co-operative Tribunal in two applications, I.A.Nos.73(a) & 76(a) of 2016, in which the Tribunal had restored Revision Petition Nos.23 & 25 of 2013. The respondents herein are common in both the Original Petitions, while the petitioners are different. 2. The facts relies on for the disposal of these Petitions in brief are thus: The respondents herein would contend that they stood surety for the debts incurred by the petitioners. The Bank filed Arbitration Cases against the petitioners and their sureties, the respondents. On filing the Execution Petitions, the respondents discharged the decree debts. Thereafter, they filed suits before the civil court. Those suits were found not maintainable in view of specific bar under section 69 of the Kerala Co-operative Societies Act. On dismissal of the suits, the respondents filed A.R.C.Nos. 2754, 2755 & 2756 of 2008 for 4 _OP(C)Nos.3080 & 3103 of 2017_ realisation of the amounts from the petitioners herein. The Arbitrator dismissed the cases. The orders in the A.R.Cs. were challenged by the respondents herein by filing three Revision Petitions, R.P.Nos.23, 24 & 25 of 2013. In these Original Petitions, this Court is concerned with R.P.Nos.23 & 25 of 2013. The Revision Petitions were dismissed for default. The respondents herein filed I.A.Nos.1 & 2 of 2016 for getting the Revision Petitions restored to file. They defaulted in appearance in those applications as well, and thus the applications were also dismissed. Hence, they filed I.A.Nos.73(a) & 76(a) of 2016 to get those applications restored. The Co-operative Tribunal allowed those applications vide Ext.P7 order. The connected R.P.No.24/2013 restored and allowed much earlier vide Ext.P6 order. It is on the basis of that, both these Revision Petitions were also restored to file by the Tribunal. 3. The petitioners are aggrieved and have filed these petitions. The learned Counsel appearing for the petitioners would argue that Ext.P7 is not a speaking order, a one-liner and it does not indicate any reason 5 _OP(C)Nos.3080 & 3103 of 2017_ for allowing the petitions after condonation of delay. Hence, interference of this Court under Article 227 is required to undo the injustice done to the petitioners. The order in both the Revision Petitions are almost similar. In I.A.No.76(a)/2016 the order is thus: _“Heard. Restored to file R.P.25/13 as it is connected to R.P.24/13. Issue notice to respondent 12-10-2017.”_ The order in I.A.No.73(a)/2016 reads thus: _“Connected with R.P.24/13. Restored R.P.23/13 for hearing. Issue notice to respondent in R.P. for hearing 12-10-2017.”_ Both these orders were passed on the same day. 4. The petitioners would contend that they had availed the debts from the Paravoor Co-operative Bank Ltd. in order to help one Augustine. Though he had undertaken to repay the loan, he died before he could repay the debts. The Bank proceeded against the petitioners and the respondents herein, who stood sureties, for realisation of the amount and admit that the respondents discharged the debts as they are the legal heirs of the above-mentioned Augustine. The Revision Petitions filed by the respondents herein were dismissed for default. R.P.No.24/2013 was, however, _OP(C)Nos.3080 & 3103 of 2017_ 6 restored and in the absence of both sides, allowed on merit vide Ext.P6 order. Review petition was filed and Ext.P6 order stands reviewed, submits the Counsel for the petitioners. However, without going into these factual situation, the Tribunal restored the other R.Ps. under the premise that connected R.P.No.24/13 was allowed vide impugned orders as extracted above. 5. _Per contra_ , the learned Counsel appearing for the respondents would points out to Section 84 of the Kerala Co-operative Societies Act, 1969 provides for revision by the Tribunal, which reads thus: _“_ _**84.Revision by Tribunal** :- The Tribunal may call for and examine the record of any proceedings in which an appeal lies to it for the purpose of satisfying itself as to the legality or propriety of any decision or order passed and if in any case it shall appear to the Tribunal that any such decision or order should be modified, annulled or revised, the Tribunal may pass such order thereon as it may deed fit:_ _Provided that the Tribunal shall not take any action under this section if:-_ _(a) the time for appeal against the decision or order has not expired; or_ _(b) the decision or order has been made the subject matter of an appeal:_ _Provided further that no order shall be made under this section unless notice has been given to all interested parties and they have been given a reasonable opportunity of being heard.”_ _OP(C)Nos.3080 & 3103 of 2017_ 7 A reading of the Section would indicate that what is required for the Tribunal to interfere in a revision is the legality or propriety of any decision or order passed. It is pointed out by the learned Counsel for the respondents that no separate petition for condonation of delay is necessary and that apart, the Arbitrator has no power to dismiss the Arbitration Case for default, since Order I, Rule 9 of C.P.C. is not applicable. In support of his contention that no separate petition for condonation of delay is necessary in a matter coming under the Co-operative Societies Act, he relies on the decision reported in _**Tajuddin Shameer v. Secretary, Coastal Urban Co-operative Bank Ltd.2004 (1) KLT 909.**_ 6. Relying on Rule 114 of the Co-operative Societies Rules, 1969 (Kerala), the learned Counsel for the respondents argues that when an application is disposed of exparte against any absentee party, he can apply to the Tribunal, within thirty days from the date of communication of the order, for restoring the proceedings and all that is necessary for him is to prove to the satisfaction of the Tribunal that he was prevented _OP(C)Nos.3080 & 3103 of 2017_ 8 from sufficient cause from appearing before the Tribunal, the Tribunal would call on for hearing and the provision of these rules would also apply to application for restoration. The learned Counsel would argue that the 30 days time is fixed under Rule 114 for filing of appeal, but there is no such time provided for filing of revision, because the revision would be dismissed for default, is the argument of the learned Counsel. 7. Rule 114 of the Rules reads as thus: “ _**114. Restoration of appeals and applications** :- (1) Where a principal application is disposed of ex-parte any absentee party, if aggrieved, may apply to the Tribunal, within 30 days from the date of communication of the order, for restoring such proceeding to the file and where it is shown to the satisfaction of the Tribunal that he was prevented by sufficient cause from appearing when the proceeding was called on for hearing, the Tribunal shall restore the same and proceed with it. Provided that where the other party had appeared at the hearing such party shall be given notice and an opportunity of bearing heard before the order for restoration of the appeal or application is made._ _(2) The provisions of these rules relating to appeals or applications shall mutatis mutandis apply to application for restoration.”_ A reading of the aforesaid Rule would indicate that it will applicable only to appeals and applications and also for restoration. But it does not apply to revisions as _OP(C)Nos.3080 & 3103 of 2017_ 9 argued by the learned Counsel for the respondents. If that be so, it is essential for the Tribunal to dispose the Revision Petitions on merits and not on default. The fact that the petitions were dismissed for default itself would indicate that the dismissal was not proper and hence there is absolutely nothing wrong in the Revisions Petitions being restored to file by the Tribunal, even though it is by means of a cryptic one-lined order referred to above. Because when the dismissal itself is improper, it has to be corrected by the Court for the wrong of the Court, as it should not harm anyone. Hence, I find no reason, whatsoever, to interfere with the restoration of R.P.Nos.23 & 25 of 2013 by the Tribunal. The Original Petitions are dismissed. No order as to costs. **Sd/-** **ASHOK MENON JUDGE** _dkr_ _OP(C)Nos.3080 & 3103 of 2017_ 10 ## **APPENDIX OF OP(C) 3080/2017** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF I.A.NO.2/16 DT.31-12-15. EXHIBIT P2 TRUE COPY OF COUNTER AFFIDAVIT DT.29-3-16. EXHIBIT P3 TRUE COPY OF I.A.NO.76(A)/16 DT.4-7-16. EXHIBIT P4 TRUE COPY OF DELAY PETITION DT.4-7-16. EXHIBIT P5 TRUE COPY OF COUNTER AFFIDAVIT DT.17-3-17. EXHIBIT P6 TRUE COPY OF ORDER IN R.P.24/13 DT.29-8-17. EXHIBIT P7 TRUE COPY OF ORDER IN I.A.NO.76(A)/16 DT. 25-8-17.** ## **APPENDIX OF OP(C) 3103/2017** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF I.A.NO.1/16 DT. 30.12.15. EXHIBIT P2 TRUE COPY OF COUNTER AFFIDAVIT DT. 29.3.16. EXHIBIT P3 TRUE COPY OF I.A.NO.76(A)/16 DT. 4.7.16. EXHIBIT P4 TRUE COPY OF DELAY PETITION DT. 4.7.16. EXHIBIT P5 TRUE COPY OF COUNTER AFFIDAVIT DT. 17.3.17. EXHIBIT P6 TRUE COPY OF ORDER IN R.P.24/13 DT. 29.8.17. EXHIBIT P7 TRUE COPY OF ORDER IN I.A.NO.73(A)/16 DT. 25.8.17.**