Saji Mattathil v. Joint Registrar of Co-operative Societies, Arbitrator, Kerala State Co-operative Bank Ltd. and Kerala State Co-operative Bank Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 30TH DAY OF MARCH 2016/10TH CHAITHRA, 1938 WP(C).No. 32925 of 2015 (M) ---------------------------------------------- PETITIONER: SAJI MATTATHIL, AGED 48, S/O.GEROGE, MATTATHIL HOUSE, KANAKAPPILLY P.O., PARAPPA, KASARAGOD DISTRICT. BY ADV. SRI.T.K.VIPINDAS RESPONDENTS: 1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ARBITRATOR, KERALA STATE CO-OPERATIVE BANK LTD., HEAD OFFICE, CO-BANK TOWERS, VIKAS BAHVAN P.O., THIRUVANANTHAPRUAM-33. 2. THE KERALA STATE CO-OPERATIVE BANK LTD., HEAD OFFICE, C0-BANK TOWERS, VIKAS BAHVAN P.O., THIRUVANANTHAPRUAM-33, REPRESENTED BY ITS MANAGING DIRECTOR. R1 BY SR.GOVT. PLEADER SRI.V.VIJULAL R2 BY ADV. SRI.GEORGE POONTHOTTAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN WP(C).No. 32925 of 2015 (M)** PETITIONER'S EXHIBITS: EXT.P1.TRUE COPY OF THE PLAINT IN ARC 35/2013 ON THE FILE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, KERALA. EXT.P2.TRUE COPY OF THE SUMMONS ISSUED TO THE PETITIONER IN ARC 35/2013. RESPONDENT'S EXHIBITS: /TRUE COPY/ P.S. TO JUDGE Dama Seshadri Naidu, J. ------------------------------------------- W.P.(C)No.32925 of 2015 M -------------------------------------------- Dated this the 30[th] day of March, 2016 ## **JUDGMENT** The petitioner borrowed certain amount from the respondent Bank and defaulted in its repayment. The respondent Bank, as a result, initiated recovery proceedings before the first respondent—the Arbitration Court. 2. As seen from the record, the first respondent issued Exhibit P2 summons requiring the petitioner to attend the enquiry/trial on 18.08.2015 at Kannur Branch of the respondent Bank. The petitioner participated. The second hearing also took place on 29.09.2015 at Kannur. Subsequently, the first respondent decided to have the next hearings at Thiruvananthapuram, where the Head Office of the respondent Bank is situated. Aggrieved, the petitioner has filed the present writ petition. WPC 32925/15 2 3. The petitioner's singular grievance is that he lives far away from Thiruvananthapuram and that for every hearing he has to travel over twelve hours. According to him, having held the initial two hearings at Kannur, the respondent Bank ought to have had its camp sittings for a further hearing at the same place. 4. The learned counsel for the petitioner has specifically contended that the first respondent is estopped from shifting the venue of hearing for it offends the common law principle of forum non conveniens. To support his submissions, the learned counsel has placed reliance on **Sterling Agro Industries Ltd. v. Union of India**[1] , apart from Sections 69 and 70A of the Kerala Co-operative Societies Act ('the Act') and Rule 67 of the Kerala Cooperative Societies Rules ('the Rules'). Eventually, the learned counsel has drawn my attention to sub-rule (11) of > 1 AIR 2011 Delhi 174 WPC 32925/15 3 Rule 67 to contend that if the first respondent is to permit the petitioner to engage a counsel, it will obviate the difficulty because the counsel could attend the hearing and defend the petitioner dispensing with his presence. 5. Per contra, the learned Standing Counsel for the respondent Bank has submitted that, without the petitioner ever asking for any concession, the first respondent had the initial sitting twice in Kannur Branch. It was only to avoid any hardship to the borrowers, including the petitioner, in Kannur. He has further submitted that the first respondent has subsequently found that there were few cases pending in Kannur region to have a camp sitting. Accordingly, the said authority has decided to hold further hearings at Thiruvananthapuram, where the Head Office of the respondent Bank is situated. 6. In elaboration of his submissions, the learned Standing Counsel has strenuously contended that none of WPC 32925/15 4 the statutory provisions referred to by the learned counsel for the petitioner, i.e. Sections 69 and 70A of the Act and Rule 67 of the Rules mandates that hearing should take place at the door steps of the borrower. 7. In response to the submissions made by the learned counsel for the petitioner that the petitioner be permitted to have legal assistance, the learned Standing Counsel has submitted that sub-rule (11) of Rule 67 imposes no absolute embargo on a person's right to engage a counsel. According to him, such a facility is discretionary to be allowed based on the facts and circumstances of each case. At any rate, he has submitted that it is for the petitioner to file an application before the first respondent seeking the said authority's leave to engage a counsel to defend him in the proceedings. 8. Heard the learned counsel for the parties on either side, apart from perusing the record. WPC 32925/15 5 9. Though the writ petition raises an issue as regards the venue of adjudication—to be precise, the seat of arbitration—the learned counsel for the petitioner has laid a heavy emphasis on the principle of forum non conveniens. Nevertheless, any elaborate adjudication on it is obviated given the petitioner's diluted demand: He be allowed to engage a counsel. 10. As seen from the scheme of things, Rule 67(11) imposes no absolute embargo on a party engaging a counsel. Sections 69 and 70A of the Act as well as Rule 67 of the Rules do not, I reckon, throw much light on the controversy: where should be the seat of arbitration. 11. In my considered view, the principle of forum non conveniens can be pressed into service if territorial jurisdiction is conferred on multiple places. The courts have uniformly held that convenience of all parties should be considered while determining the place of adjudication. The WPC 32925/15 6 doctrine of dominus litus yields to the principle of forum non conveniens keeping in view it is always the petitioner who chooses the forum in the first instance. 12. To curtail further discussion on the issue, I may mention that the petitioner is satisfied if he is permitted to engage a counsel on his behalf to represent him in the arbitration proceedings before the first respondent. True, it obviates the personal appearance or repeated presence of the petitioner before the Arbitration Court. 13. Sub-rule (11) of Rule 67 of the Rules reads to the following effect: “In the proceedings before the Co-operative Arbitration Court or Registrar or such other person deciding the dispute or the Arbitrator, legal practitioners shall not be entitled, as a matter of right, to appear to represent parties.” 14. As has been rightly contended by the learned Standing Counsel, the provision referred to above imposes no absolute embargo against a party engaging a counsel. WPC 32925/15 7 The learned Government Pleader, having taken pains, on short notice to locate the relevant provisions, has appreciatively drawn my attention to Circular No.33/1971, which reads to the following effect: “It has been represented that some departmental officers who are appointed as Arbitrators to decide dispute do not allow the parties to engage legal practitioners to present their cases. According to sub-rule (8) of Rule 67 of the Kerala Co-operative Societies Rules in the proceedings before the Registrar or such other person deciding the dispute or the Arbitrator, legal practitioners shall not be entitled, as matter of right, to appear or represent parties. That does not however mean that legal practitioners should be completely excluded. Though this is entirely within the discretion of the person hearing the dispute, there is no point in denying this privilege to the parties when they specifically request permission to engage Advocates. In the case of important and complicated references, the services of legal practitioners will be of great help to the Arbitrators in arriving at correct conclusions and to dispose of the references more conveniently and expeditiously. All the departmental officers are therefore informed that normally requests for permission to engage legal practitioners to present parties in arbitration cases shall not be denied.” 15. From the above circular, it is beyond cavil that the petitioner can as well engage a counsel to defend him before the Arbitration Court. All that he has to do is file a WPC 32925/15 8 formal application in that regard. In the facts and circumstances, saving up the issue of forum non conveniens to be decided in an appropriate case in future, I dispose of the writ petition clarifying that the petitioner is free to apply before the first respondent under Rule 67(11) of the Rules read with Circular No.33/1971 seeking its leave to engage a legal practitioner. If such an application is filed, the first respondent shall consider it in accordance with law, especially keeping in view the provisions referred to above. It is hoped that the first respondent will conclude the proceedings expeditiously. No order on costs. Dama Seshadri Naidu, Judge tkv