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1978 DIGILAW 187 (KER)

CHEMPAZHANTHI SERVICE CO-OP. SOCIETY LTD. v. CO-OPERATIVE TRIBUNAL

1978-07-26

V.KHALID

body1978
Judgment :- 1. The petitioner is a Co-operative Society. The first respondent is the Kerala Co-operative Tribunal and respondents 3 to 10 are the legal representatives of one late Sri. G. Kuttan Pillai who was the Secretary of the Society for some time. The said Pillai had instituted a suit as A.S. No. 172 of 1972 claiming certain amounts against the petitioner-society, towards arrears of salary, bonus, share value, security deposit, gratuity etc. It is seen that the petitioner-society also had filed suit No. 9 of 1972 against him for certain amounts that he owed to the society. In the suit filed by Pillai, the petitioner-society disputed all. the claims except the salary for a short period of 9 days. The late Pillai had filed Arbitration Suit No. 10 of 1970 earlier claiming arrears of salary from November 1969 till 31-7-1970 and also for October 1970. A portion of the claim was decreed in the said suit and, according to the petitioner, the claim for the remaining portion was negatived as he failed to prove that he was entitled to that amount. The case of petitioner here is that the second suit out of which this writ petition arises, covers amounts covered by the earlier suit also. The second respondent, the Circle Officer (Cooperative) Administration, Trivandrum, decreed the suit in favour of respondents 3 to 10 as per Ext. P1 award. The petitioner-society filed an appeal, Appeal No. 36 of 1974, before the first respondent. The first respondent dismissed the appeal as per Ext. P2 judgment dated 28 21975. The challenge in this writ petition is against Ext. P-2. 2. The questions that arise for consideration and decision in this writ petition are (1) whether the second suit before the Arbitrator is barred by the principles of res judicata and Order II R.2 CPC. and (2) whether the award made without the production of a succession certificate under S.214 of the Indian Succession Act, is enforceable. 3. According to the respondents' counsel the objections raised are not sustainable on the ground that the Arbitrator is not a court. Neither S.214 of the Succession Act nor S.11 CPC. or Order II R.2 CPC. applied to proceedings before an Arbitrator. The bar under S.11 is sought to be reinforced with a plea that S.41 to 43 of the Evidence Act, which incorporate in a different manner the principles contained in S.11 CPC. Neither S.214 of the Succession Act nor S.11 CPC. or Order II R.2 CPC. applied to proceedings before an Arbitrator. The bar under S.11 is sought to be reinforced with a plea that S.41 to 43 of the Evidence Act, which incorporate in a different manner the principles contained in S.11 CPC. are excluded directly by S.3 of the Evidence Act. I shall now deal with these questions in brief. 4. S.214 of the Indian Succession Act reads as follows: "214. (1) No Court shall (a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof; or (b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming, of (i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or (ii) a certificate granted under S.31 or S.32 of the Administrator General's Act, 1913, and having the debt mentioned therein, or (iii) a. succession certificate granted under Part X and having a debt specified therein, or (iv) a certificate granted under the Succession Certificate Act, 1889, or (v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the first day of May, 1889, having the debt specified therein. (2) The word "debt" in sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes." A mere reading of S.214 shows that it cannot apply to a proceeding before an Arbitrator. Two conditions have to be satisfied for the application of S.214. (1) The proceedings should be before a Court and (2) the ultimate order to be passed should be a decree. The petitioner's counsel forcefully contended that an Arbitrator is a Court, and in this desperate attempt sought refuge in the dictionary meaning of the word 'court'. In certain dictionaries the word 'court' takes within its ambit an Arbitrator also. But in matters of construction of statutes, courts should not be prisoners of dictionary, though sometimes support may be had from dictionaries also. In certain dictionaries the word 'court' takes within its ambit an Arbitrator also. But in matters of construction of statutes, courts should not be prisoners of dictionary, though sometimes support may be had from dictionaries also. A Judge should steer clear of all the ambiguities that dictionary meanings create when the statute admits of no doubt. To adopt the dictionary meaning in this case will be doing injustice both to the Co-operative Societies Act, hereinafter referred to as the Act, and to the Indian Succession Act. 5. Reference to S.76 of the Co-operative Societies Act makes it clear that an Arbitrator under the Act cannot be a civil court. It is by virtue of S.76 that awards made by a Registrar is rendered executable in the same manner as a decree of a civil court. In other words, the award of an Arbitrator assumes the character of a decree by the deeming provision contained in S.76, in whose absence it will lose that character. It is useful to remember that S.76 makes the award by an Arbitrator a decree for the limited purpose of execution and not for any other purpose. 6. The conclusion that an Arbitrator under the Act cannot be a court, can be strengthened with reference to certain other enactments. The Rent Control Court or the Rent Controller under the Kerala Buildings (Lease and Rent Control) Act is not a Court. The order of a Rent Controller is not a decree. It is only by virtue of S.14 of the said that an order passed by the Rent Controller can be executed through a civil court. But for this specific provision in the Rent Control Act, the order by the Rent Controller cannot get the colour or the character of a decree since the Rent Controller is not a court. 7. Nor does the Appellate Authority under the Rent Control Act, who is normally the Subordinate Judge, a court. A Full Bench of this Court in Jokkim Fernandez v. Amina Kunhi Umma (1973 KLT. 138 (F.B.) held that the Appellate Authority under the Kerala Buildings (Lease and Rent Control) Act is not a court and therefore S.5 of the Limitation Act did not apply to the proceedings before the Appellate Authority. This was followed by a Division Bench of this Court in Sreedharan v. Mohammed Kunhi (1978 KLT. 20) which reiterated the earlier dictum. 138 (F.B.) held that the Appellate Authority under the Kerala Buildings (Lease and Rent Control) Act is not a court and therefore S.5 of the Limitation Act did not apply to the proceedings before the Appellate Authority. This was followed by a Division Bench of this Court in Sreedharan v. Mohammed Kunhi (1978 KLT. 20) which reiterated the earlier dictum. Of course in these two cases the Full Bench and the Division Bench of this court, while considering the applicability of S.5 of the Limitation Act. held against its applicability on the ground that the Rent Control Court and the Appellate Authority are not courts. However, in Mohd. Ashfeq v. S.T.A.T.U.P. (AIR. 1976 SC. 2161) the Supreme Court held that the provisions of the Limitation Act would apply for applications for renewal of permit before the Regional Transport Authority under S.58 (3) of the Motor Vehicles Act, but for S.29 (2) of the Limitation Act, 1963. Whether this case strikes a discordant rote or not, is a matter for consideration in an appropriate case. The inference deducible from the Supreme Court decision is that S.5 of the Limitation Act would apply to an authority like the Regional Transport Authority, but for the specific provision contained in S.58 (3) of the Act. That is by the way. 8. Poti J. had to consider the applicability of the provisions of the Limitation Act to Arbitrators under the Co-operative Societies Act in Thilakan v. M.C.V. Co-op. Society (AIR. 1975 Kerala 14;1974 KLT. 657). The learned judge followed the earlier cases of this court and held that the provisions of the Limitation Act will not apply to proceedings before the Arbitrator under the Co-operative Societies Act. 9. From the foregoing discussion, I have necessarily to come to the conclusion that the contention that an award made by the Arbitrator without the production of a succession certificate is not enforceable, is not well founded-. 10. The question, that arises next for consideration is whether the principles of resjudicata are applicable to the award by an Arbitrator. Though an Arbitrator is not a court, he or she is a quasi-judicial authority discharging functions under the Act. 10. The question, that arises next for consideration is whether the principles of resjudicata are applicable to the award by an Arbitrator. Though an Arbitrator is not a court, he or she is a quasi-judicial authority discharging functions under the Act. There was a faint feeler put forward by the respondent's counsel that since an Arbitrator is not governed by the provisions of the Civil Procedure Code or the Evidence Act, he has to decide cases according to equity, justice and good conscience and therefore the finality provisions built in S.11 C. P. C. or the general principles of res judicata are not applicable to awards made by them. I have perforce to discountenance this contention. From the scheme of the Act, it is clear that the Arbitrator decides various disputes of civil nature. He is governed by the provisions of the Act in coming to this decision. Therefore it has to be found that he is a quasi-judicial authority. 11. On this finding the petitioner's counsel pressed into service a decision of the Full Bench of this Court reported in Koran v. Kamala Shetty (1977 KLT. 358 (F.B.). In that case the Full Bench had to consider the applicability of S.11 of the Civil Procedure Code to the decisions of the Land Tribunal constituted under the Kerala Land Reforms Act. The court held that a second application under S.80B was not maintainable when two prior applications for purchase were dismissed. The ratio of the said decision is that the principle of finality or conclusiveness of a prior decision is applicable even to quasi-judicial bodies, like the Land Tribunals functioning under the Kerala Land Reforms Act. According to me this is authority for the position that awards by Arbitrators under the Act also are governed by the principles of res judicata, since law enjoins upon courts and quasi-judicial authorities the necessity of finality or conclusiveness of their decisions. 12. Even conceding that an Arbitrator is a quasi-judicial authority, discharging quasi-judicial functions, the petitioner cannot succeed in this writ petition. S.11 CPC. and Order II R.2 CPC. are pressed into service in this case on the ground that a portion of the claim in the second suit forms the cause of action for the earlier suit also. But this is how the claim is disposed of by Ext. S.11 CPC. and Order II R.2 CPC. are pressed into service in this case on the ground that a portion of the claim in the second suit forms the cause of action for the earlier suit also. But this is how the claim is disposed of by Ext. P-3: "For the period from 26 111969 to 3171970 the Advocate for the petitioner was not able to produce any evidence to show that the leave was sanctioned to him. Hence payment of salary for this period does not arise now" According to me this is keeping alive the claim. This cannot be said to be a direction negativing the claim. The claim is left at large. Therefore it cannot be said that the finding concludes the claim regarding the said period. 13. The respondent's counsel also contended before me that in exercising jurisdiction under Art.226 this court will be slow in upsetting the findings of fact entered by the departmental proceedings except for compelling reasons. He brought to my notice the decision reported in Hari Vishnu v. Ahmad Ishaque (AIR.1955 SC.233) where it was held that a certiorari will issue only for correcting errors of jurisdiction when an inferior court or Tribunal has acted without jurisdiction or in excess of it or fails to exercise it. That jurisdiction will not be exercised to re-hear the case and substitute its own findings in certiorari proceedings when the findings already entered are plausible. In this case both the Appellate Authority and the original authority have, on the materials available, found the claim tenable. I will be therefore not justified in interfering with these facts. In the result the writ petition has to fail and is dismissed but without costs. Dismissed.