High Court of KeralaSingle Judge2018-11-28Petition disposed of with direction to consider...

SINI RAJAN v. Ponnani Co-operative Urban Bank Ltd. and Kerala Co-operative Development Welfare Fund Board

Case / Petition Number:WP(C).No. 16986 of 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran
Judgment Date: 2018-11-28
Court Decision / Holding: This writ petition is disposed of by directing the 1st respondent to consider and pass appropriate orders on Ext.P10 representation dated 19/3/2018, by the petitioner, with notice to the petitioner, and after affording her an opportunity of being heard. The Court noted that the petitioner must challenge the ex parte award in accordance with law, and without prejudice to such right, the bank should address Ext.P10 in a due process manner.
Final Disposition: Petition disposed of with direction to consider Ext.P10 representation with notice and opportunity of hearing; interim stay not granted; petition kept open to challenge the award as per law.

Parties to the Case

Appellants / Petitioners

Sini Rajan

Respondents

The Ponnani Co-operative Urban Bank Ltd., M.372 Branch, Perumpadappu (represented by its Secretary)
Kerala Cooperative Development Welfare Fund Board Regional Office, Thrissur, Wadakkanchery P.O., Thrissur (represented by its Secretary)

Legal Representation & Advocates

Counsels for Petitioners

• Adv. SMT.K.NANDINI

Counsels for Respondents

• Adv. Sri.D.SREEKUMAR, SC, Ponani Cooperative Urban Bank Limited

Case Synopsis & Summary

This writ petition under Article 226 of the Constitution of India challenges Ext.P10, a representation dated 19 March 2018 made by the petitioner before the 1st respondent Bank seeking return of documents offered as security for a loan availed by her late husband from the bank (loan No. ML 527). The petitioner also sought to keep in abeyance the recovery proceedings in respect of loan account ML 527. The background is that the loan was granted on 19 March 2012 for Rs. 5,00,000; the borrower died on 23 September 2015; during pendency of proceedings the bank obtained an ex parte award dated 21 March 2013 in ARC No.406 of 2013 under Section 70 of the Kerala Co-operative Societies Act, resulting in a liability of Rs. 5,43,051 plus interest. The petitioner argues that Ext.P10 remains pending before the bank; She contends that the bank should re-consider and provide relief. The bank contends Ext.P10 cannot be considered because of the ex parte award; The Court found that the remedy for setting aside the ex parte award lies in appropriate proceedings and that Ext.P10 can be considered only after due process; The court disposed of the petition by directing the bank to consider Ext.P10 with due notice and hearing, without prejudice to the petitioner’s right to challenge the award and other remedies.

Provisions of Law Cited

Article 226 of the Constitution of IndiaSection 70 of the Kerala Co-operative Societies Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P10 should be acted upon by the 1st respondent Bank, including disposal of the representation and return of security documents; she seeks to keep in abeyance the recovery proceedings and to ensure fair consideration of Ext.P10; she asserts she only learned of the ex parte award late and that though a remedy to set aside the ex parte award exists, Ext.P10 should not be precluded; she prays for mandamus to compel fair consideration and action by the Bank.

Contentions of Respondents

The 1st respondent Bank contends that Ext.P10 cannot be entertained while recovery proceedings are based on an ex parte award; the remedy is to challenge the ex parte award; without challenging the award, extension of Ext.P10 is not warranted; concerns of security documents and recovery must be addressed in accordance with law; the petition lacks merit and should be dismissed or left to be dealt with in appropriate proceedings.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Rema Devi and others v. Joint Registrar (General) of Cooperative Societies, Ernakulam and another	2016 (3) KHC 645	Positive	The court in Rema Devi held that the Arbitrator has the power to set aside ex parte awards and such power is inherent in the jurisdiction of a quasi-judicial body, supporting the petitioner's argument that there exists a remedy to challenge ex parte arbitration awards.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 28TH DAY OF NOVEMBER 2018 / 7TH AGRAHAYANA, 1940** ## **WP(C).No. 16986 of 2018** ## **PETITIONER/S:** **SINI RAJAN AGED 38 YEARS W/O. (THE LATE) RAJAN,PULIKKATHARA HOUSE,VANNERI P.O.,PERUMPADAPPU,MALAPPURAM DISTRICT.** **BY ADV. SMT.K.NANDINI** ## **RESPONDENT/S:** **1 THE PONNANI CO-OPERATIVE URBAN BANK LTD.NO.M.372 BRANCH PERUMPADAPPU,REPRESENTED BY ITS SECRETARY-679 583. 2 THE KERALA CO-OPERATIVE DEVELOPMENT WELFARE FUND BOARD REGIONAL OFFICE,THRISSUR,WADAKKANCHERY P.O.,THRISSUR680 582. REPRESENTED BY ITS SECRETARY. BY ADVS. SRI.D.SREEKUMAR, SC, PONNANI COOPERATIVE URBAN BANK LIMITED** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 16986 of 2018** **2** ## **JUDGMENT** The petitioner's husband, who availed a loan from the 1[st] respondent Bank on 19.03.2012 for a sum of Rs.5,00,000/-, died on 23.09.2015, as evident from Ext.P1 death certificate issued by Kunnamkulam Municipality. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent Bank to dispose of Ext.P10 representation dated 19.03.2018, whereby she has requested the Bank to return the documents offered as security in respect of the aforesaid loan availed by her husband. The petitioner has also sought for a writ, order or direction commanding the 1[st] respondent to keep in abeyance the recovery proceedings pertaining to Ext.P3 loan account No.ML 527, till the final disposal of this writ petition. 2. On 31.05.2018, when this writ petition came up for consideration, this Court granted an **WP(C).No. 16986 of 2018** **3** interim direction to the respondents to keep in abeyance further proceedings pursuant to Ext.P3, on condition that the petitioner remits an amount of Rs.1,00,000/- within two weeks. 3. The petitioner has complied with the above condition, though belatedly, and the said fact is not in dispute. During the pendency of this writ petition, the learned counsel for 1[st] respondent Bank has produced a copy of the award dated 21.03.2013 of the Arbitrator in A.R.C.No.406 of 2013. A perusal of the said award would show that an ex-parte award was passed against the petitioner and other legal heirs of the deceased borrower, for a sum of Rs.5,43,051/- together with interest at the rate of 19% from 19.03.2012 for a sum of Rs.4,81,491/-. 3. Heard the learned counsel for the petitioner and also the learned counsel for the respondent Bank. 4. As already noticed, the only relief sought **WP(C).No. 16986 of 2018** **4** for in this writ petition is disposal of Ext.P10 representation dated 19.03.2018 made by the petitioner before the 1[st] respondent Bank and to keep in abeyance the recovery proceedings pertaining to the loan account No.ML 527. Now, as borne out from records, the recovery proceedings initiated against the petitioner is based on an award passed by the Arbitrator dated 21.03.2013 in ARC No.406 of 2013. The said award is one issued in exercise of the powers under Section 70 of the Kerala Co-operative Societies Act. 5. The fact that the award in ARC No.406 of 2013 is an ex-parte award, is not in dispute. If the petitioner and other legal heirs of the deceased borrower are feeling aggrieved by the said award, their remedy is to file an application before the Arbitrator to set aside the same, in view of the decision of this Court in **Rema Devi and others v. Joint Registrar (General) of Cooperative Societies, Ernakulam and another [2016** **WP(C).No. 16986 of 2018** **5** **(3) KHC 645]** , wherein it was held that the Arbitrator has the power to set aside those exparte awards and such a power is inherent in exercise of the jurisdiction by a quasi judicial body. 6. The learned counsel for the petitioner would point out that the petitioner came to know about the award in ARC No.406 of 2013 only when a copy of the same is produced before this Court along with the memo dated 28.09.2018 filed by the learned counsel for the 1[st] respondent Bank. 7. When the recovery proceedings initiated against the petitioner is in terms of an award passed by the Arbitrator under Section 70 of the Kerala Co-operative Societies Act, it is for the petitioner to challenge the same in accordance with law. Without raising any challenge against the award, she cannot seek an order to keep in abeyance the recovery proceedings pursuant to that award. **WP(C).No. 16986 of 2018** **6** 8. The learned counsel for the petitioner would point out that Ext.P10 representation made by the petitioner is even now pending consideration before the 1[st] respondent Bank. 9. The learned counsel for the 1[st] respondent Bank would point out that in view of the award passed by the Arbitrator, the petitioner is not legally entitled for considering her request in Ext.P10. 10. Having considered the submissions made by the learned counsel on both sides, this Court finds that the rival contentions need not be gone into, at this point out of time, since it is for the petitioner to take appropriate step, in accordance with law, against the ex-parte award passed by the Arbitrator in ARC No.406 of 2013. Without prejudice to the aforesaid right of the petitioner, this writ petition is disposed of by directing the 1[st] respondent to consider and pass appropriate orders on Ext.P10 representation made **WP(C).No. 16986 of 2018** **7** by the petitioner, with notice to the petitioner, and after affording her an opportunity of being heard. **Sd/-** **ANIL K.NARENDRAN,JUDGE** AV/30/11 **WP(C).No. 16986 of 2018** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXT.P1: TRUE COPY OF THE DEATH CERTIFICATE ISSUED FROM THE KUNNAMKULAM MUNICIPALITY DATED 23.09.2015. EXT.P2: TRUE COPY OF THE DISCHARGE SUMMARY DATED 5/8/2015 ISSUED BY DR.REGHUNATH M., ASSISTANT PROFESSOR,NEPHROLOGY,AMALA INSTITUTE OF MEDICAL SCIENCES, THRISSUR. EXT.P3: TRUE COPY OF THE RELEVANT PAGE OF THE LOAN PASSBOOK OF LOAN NO.M.L.527. EXT.P4: TRUE COPY OF THE COMMUNICATION DATED 22/7/2016 FROM THE 2ND RESPONDENT TO THE PETITIONER. EXT.P5: TRUE COPY OF THE D.D.DATED 23/3/2017. EXT.P6: TRUE COPY OF THE CHEQUE BEARING NO.10183819 DATED 25/5/2017. EXT.P7: TRUE COPY OF THE RELEVANT PAGES OF THE PASS BOOK BEARING "SAVINGS BANK ACCOUNT NO.3483". EXT.P8: TRUE COPY OF THE JUDGMENT DATED 1/6/2017 IN W.P.(C) NO.38137/2016 OF THIS HONOURABLE COURT. EXT.P9: TRUE COPY OF THE COUNTERFOIL FROM FEDERAL BANK DATED 21/7/2017 FOR AN AMOUNT OF RS.50,000/- IN FAVOUR OF THE 1ST RESPONDENT. EXT.P9(A): TRUE COPY OF TRANSFER RECEIPT DATED 22/6/2017 FOR AN AMOUNT OF RS.50,000/IN FAVOUR OF THE 1ST RESPONDENT. EXT.P9(B): TRUE COPY OF DD RECEIPT DATED 24/7/2017 FOR AN AMOUNT OF RS.30,000/-. EXT.P9(C): TRUE COPY OF DD RECEIPT DATED 12/9/2017 FOR AN AMOUNT OF RS.30,000/-.** **WP(C).No. 16986 of 2018** **9** |**EXT.P9(D):**|**TRUE COPY OF DD RECEIPT DATED 25/1/2018**| |---|---| ||**FOR AN AMOUNT OF RS.25,000/-.**| |**EXT.P9(E):**|**TRUE COPY OF DD. DATED 13/6/2017 FOR AN**| ||**AMOUNT OF RS.50,000/-.**| |**EXT.P10:**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**19/3/2018.**| |**EXT.P10(A):**|**TRUE COPY OF RECEIPT OF EXT.P10.**|