Thomas Abraham v. Biju Varghese and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933** ## **WP(C).No. 30332 of 2011(N)** **-------------------------OS.259/2010 of SUB COURT,KOTTARAKKARA** **....................** ## **PETITIONER(S):** **----------------------** **THOMAS ABRAHAM, S/O. SRI. THARIAN ABRAHAM, PERMANENTLY R/A. PALAKKAL VEEDU, ANDOOR MURI, KOLLAM DIST. (EMPLOYED IN GULF)** **BY ADVS. SRI. T. M. CHANDRAN SRI. S. SUJITH SRI. V. A. SASIDHARAN SRI.J OSEPH ALBIN NEDUMTHALLY** ## **RESPONDENT(S):** **-------------------------** **1. BIJU VARGHESE, S/O. M. C. VARGHESE, MAVILAYIL, KARUVATTAMURI, ADOOR P.O., KOLLAM-691523** **2. M. C. VARGHESE, S/O. CHACKO MAVILAYIL, KARUVATTAMURI, ADOOR P.O, KOLLAM-691523** **3. ANNAMMA VARGHESE, W/O. M. C. VARGHESE, MAVILAYIL, KARUVATTAMURI, ADOOR P.O, KOLLAM-691523** **4. AJMAL, S/O. USMAN SAHIB, UMMASERIL VEEDU, KOTTANKARA CHERRY, CHANDANATHOPPE P.O., KOLLAM-691014** **5. BIJU P.CHACKO, S/O. C. I. CHACKO, PUTTUR HOUSE, KULAYETTIKARA P.O., ARYANKAVU, ERNAKUAM DIST-682315** **WP(C).No. 30332 of 2011(N)** **6. LOK ADALATH LEGAL SERVICE COMMITTEE, KOTTARAKKARA PIN - 691506** **R1 TO R3 BY ADVS. SRI. V. M. KURIAN SRI. MATHEW B. KURIAN SRI. K. T. THOMAS** **R4 BY ADVS. SRI. C. RAJENDRAN SMT. R. S. SREEVIDYA** **R5 BY ADV. SRI. JACOB SEBASTIAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PN** **WP(C).No. 30332 of 2011(N)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** |**EXT. P1:-**|**COPY OF THE PLAINT DTD 7/10/2010**| |---|---| |**EXT. P2:-**|**COPY OF WRITTEN STATEMENT DTD 7/4/2011.**| |**EXT. P3:-**|**COPY OF SPECIAL POWER OF ATTORNEY DTD 7/10/2010**| |**EXT. P4:-**|**COPY OF CERTIFIED COPY OF AWARD DTD 21/10/2011**| ## **RESPONDENTS' EXHIBITS ; NIL** **/TRUE COPY/ P. A. TO JUDGE** **PN** ## **ANTONY DOMINIC, J** ....................................................... W.P.(C).30332/2011 .............................................. Dated this the 12[th] day of December, 2011 ## **JUDGMENT** Ext.P4 is the Award passed by the Lok Adalat which was organized by the Taluk Legal Services Committee, Kottarakkara. Petitioner herein had filed O.S.259/2010 before the Sub Court, Kottarakkara, against respondents 1 to 4. The Suit was for specific performance or for the return of Rs.88,26,325/- which according to the petitioner, was paid towards the advance for the sale of the property which was the subject matter of the Suit. The Suit was referred for to the Lok Adalat and on 21.10.2011 the matter was compromised and Ext.P4 Award was passed. The relevant portion of the settlement between the parties incorporated in the Award reads as under:- _Both parties present. Suit taken up, discussed and settled. Plaintiff agreed to return the original deed to the defendants. Accordingly the Suit is disposed off. Refund the court fee paid to the plaintiff.”_ It is there upon that this writ petition has been filed challenging Ext.P4 Award. W.P.(C).30332/11 2 2. The contention raised by the learned counsel for the petitioner is that the Award is vitiated for fraud. It is also his case that contrary to the provisions of Sections 20 and 21 of the Legal Services Authorities Act, 1987, and the Regulations framed thereunder, the Award does not reflect a compromise or settlement between the parties. The learned counsel also placed reliance on **Shashi Prateek v. Charan Singh Verma (AIR 2009 (Alahabad),109)** , **Krishnakumari v. Venugopal (2005 (2) KLT, 185)** , **Bhimapa v. Allisab (2006 (4) KLT, Sh.N 28, Case.No.42)** , **State of Punjab v. Jalour Singh (2008 (2) KLT, 236 (SC))** and **Sreedharan v. S.I of Police (2009 (1) KLT 58)** , in support of his contentions. 3. Having regard to the nature of the controversy particularly the ground 'fraud' urged by the petitioner which is incapable of resolution in a proceedings under Article 226 of the Constitution of India, this Court was reluctant to entertain the writ petition on the first day itself. However, the learned counsel for the petitioner submitted that in case the respondents appear, there is a possibility of an amicable settlement of the dispute and therefore, W.P.(C).30332/11 3 notice on admission was ordered to the respondents by order dated 28.11.2011. Accordingly, respondents 1 to 3 and 5 entered appearance through their respective counsel. 4. The learned counsel for respondents 1 to 3 submitted that in total, they had received Rs.60 Lakhs from the petitioner based on an agreement dated 5.12.2007 for the sale of the property consisting of 50 cents in favour of the petitioner. It is stated that the petitioner committed breach of contract and therefore, the property was agreed to be sold to the fourth respondent. Despite refunding the amount received, petitioner filed O.S.259/2010 before the Sub Court. It is stated that before the Sub Court, an application was made by his Power of Attorney holder for referring the Suit to the Lok Adalat and it was accordingly, the Suit was referred for settlement to the Lok Adalat. There were four postings in the Lok Adalat, and on the fourth occasion, the dispute was settled and the terms of settlement were incorporated and Ext.P4 Award was rendered which was signed by his Power of Attorney holder, who was prosecuting the Suit. It is also submitted that subsequently, respondents 1 to 3 have paid further amount of W.P.(C).30332/11 4 Rs.25 Lakhs to the petitioner's Power of Attorney holder which has been acknowledged by him on 29.10.2011. 5. According to the learned counsel for the Power of Attorney holder, the fifth respondent, Rs.25 Lakhs received from respondents 1 to 3 have paid over to the petitioner on 10.11.2011 and that receipt has been obtained in that behalf. 6. The learned counsel for the petitioner disputes the claim made on behalf of the respondents. 7. I have considered the submissions made. 8. As per Section 21 of the Legal Services Authorities Act, 1987, “every award of the Lok Adalat shall be deemed to be a decree of a Civil Court, and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under subsection (1) of Section 20, the Court-fee paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870”. It is also provided that “every award made by the Lok Adalat shall W.P.(C).30332/11 5 be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award”. The procedure for effecting compromise or settlement at Lok Adalat, has been laid down in Regulation 33 of the Kerala State Legal Services Authority Regulations which read as under :- ## _**Procedure for effecting compromise or settlement at Lok Adalat**_ _(1). Every Award of the Lok Adalat shall be signed by the parties to the dispute and the panel constituting the Lok Adalat._ _(2). The original Award shall form part of the judicial records and a copy of the Award shall be given to each of the parties free of cost duly certified to be true by the panel constituting the Lok Adalat._ 9. A reading of Ext.P4 shows that the requirements of Section 21 of the Act and Regulation 33 have been complied with and insofar as the petitioner is concerned, his Power of Attorney holder who was prosecuting the Suit has duly signed the award. Thus, there is no defect insofar as the Award is concerned. Then, what was urged before me is that an Award should reflect the compromise or settlement. According to the petitioner, the Award does not satisfy this requirement and it was to substantiate this W.P.(C).30332/11 6 contention that the judgments in **Krishnakumari v. Venugopal (2005 (2) KLT, 185), Bhimapa v. Allisab (2006 (4) KLT, S.N 28, Case.No.42)** and **Sreedharan v. S.I of Police (2009 (1) KLT 58)** , were relied on by the learned counsel. 10. On facts, I am unable to agree with the learned counsel. I have already extracted the relevant portion of the award, in which the terms of settlement between the parties have been incorporated. The Act only requires that there shall be a compromise or settlement between the parties and the Act does not provide that the compromise should be in any particular manner or that it should be beneficial to both sides. I am convinced that Ext.P4 Award satisfies the requirements of the Act insofar as it incorporates the terms of compromise or settlement between the parties. 11. Then what remains is the claim of the petitioner that the Award is vitiated for 'fraud'. I have made reference to the submissions made by both sides only to demonstrate that this is a case which involves seriously disputed questions of fact. These W.P.(C).30332/11 7 are not issues which can be appreciated or adjudicated in a writ petition where issues are resolved on the basis of facts filed by the interested parties. Therefore, in my view, fraud is not a ground, which is capable for resolution in a writ petition. 12. Therefore, I do not find any merit in the writ petition. It is accordingly dismissed. Needless to say that the judgment will not stand in the way of the petitioner in availing any other remedy. **ANTONY DOMINIC, Judge** mrcs