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2006 DIGILAW 64 (KAR)

G. v. REVANNA VS ARBITRATOR (CO-OPERATIVE DEVELOPMENT OFFICER), TUMKUR

2006-01-17

N.K.PATIL

body2006
ORDER The petitioners, questioning the legality and validity of the impugned award dated 11th November, 2003 in Dispute No. 126 of 2003-04 on the file of the Assistant Registrar of Co-operative Societies, Tumkur Sub Division, Tumkur and also the order dated 25th November, 2005 in Appeal No. 974 of 2004 on the file of the Karnataka Appellate Tribunal at Bangalore vide Annexures-C and E respectively, have presented the instant writ petition. 2. The first petitioner is the principal borrower and second petitioner is the surety for the loan availed by the first petitioner from the second respondent-Sacred Heart Credit Co-operative Society Limited (hereinafter called 'Society') for a sum of Rs. 2,75,000/- (Rupees Two Lakhs Seventy-five Thousand Only) for the purpose of improvement of his business. When petitioners committed default in payment of instalments as agreed upon in the agreement executed by petitioners in favour of second respondent-Society, the second respondent-Society was constrained to raise a dispute before the Competent Authority as envisaged under Section 70(1) of the Karnataka Co-operative Societies Act, 1959 ('Act' for short). The Competent Authority, in turn has referred the matter to the Departmental Arbitrator-first respondent herein and the first respondent hereinafter conducting enquiry and after affording an opportunity to both parties and in view of the admission made by second petitioner that, they availed the loan for a sum of Rs. 2,75,000/- with interest at 18% and penal interest at 2% and after considering the documentary evidence made available by second respondent-Society, has passed the impugned award dated 11th November, 2003 in Dispute No. 126 of 2003-04 vide Annexure-C. Assailing the correctness of the said award passed by the first respondent, petitioners herein have filed an appeal in Appeal No. 974 of 2004 on the file of the Karnataka Appellate Tribunal at Bangalore (hereinafter called 'Tribunal') and the said appeal filed by the petitioners had come up for consideration on 25th November, 2005. The Tribunal, after hearing both sides and after thorough evaluation of the original records made available by State representative, has given a specific finding in para 9 of its order, holding that, they do not find any error or illegality as such in the award passed by the Departmental Arbitrator. The said award is a well-considered order and as such, there is no need to conduct an enquiry in the same and the appeal filed by petitioners was dismissed. The said award is a well-considered order and as such, there is no need to conduct an enquiry in the same and the appeal filed by petitioners was dismissed. Being aggrieved by the said award passed by the Departmental Arbitrator and the order passed by the Tribunal, referred above, vide Annexures-C and E, petitioners herein felt necessitated to present the instant writ petition. 3. The principal submission canvassed by learned Counsel for petitioners, Sri G. Ravishankar is that, in pursuance of the notice issued by Departmental Arbitrator, first petitioner has filed the objection through his Counsel on 11th November, 2003 vide Annexure-A to the writ petition. It is the case of petitioners that, the said objection filed by first petitioner through his Counsel is neither considered nor any finding is given on that nor petitioners have been afforded with an opportunity to adduce the evidence nor permitted them to cross-examine the officials of second respondent-Society. Therefore, the Departmental Arbitrator erred in proceeding to pass the impugned award and the same is not in accordance with law. Therefore, it is liable to be set aside for not conducting proper enquiry and for non-compliance of the principles of natural justice. Further, he has taken me through the order passed by the Tribunal and vehemently submitted that, the Tribunal has also committed the Same error in not taking into consideration the stand taken by petitioners in their objections, except making reference of the documents. The appeal filled by the petitioners were dismissed confirming the order passed by the Departmental Arbitrator. Therefore, both the orders passed by the authorities suffer from errors apparent on the face of record and for not affording an opportunity to petitioners and for not conducting proper enquiry. Hence, they are liable to be set aside. 4. Per contra, learned Counsel appearing for second respondent Society, inter alia, contended and submitted that, the impugned orders passed by both the authorities are in accordance with law. To substantiate the said submission, in pursuance of the direction issued by this Court, he has produced the entire original records before this Court including the statement of accounts showing the payments made by petitioners from 7th December, 2000 to 8th November, 2001, in all, for a sum of Rs. 97,194/- which includes the principal amount of Rs. 49,604/- + interest of Rs. 43,422/- + penal interest of Rs. 4,168/-. 97,194/- which includes the principal amount of Rs. 49,604/- + interest of Rs. 43,422/- + penal interest of Rs. 4,168/-. The said statement of account produced along with the memo is duly signed by the Manager of the second respondent-Society, who is present before the Court along with the records. Therefore, he submitted that, both the authorities after appreciation of oral and documentary evidence available on file, have recorded concurrent finding of fact against the petitioners. Therefore, the writ petition filed by petitioners is liable to be rejected at the threshold itself by imposing exemplary cost on the ground that, petitioners have not at all made out any good grounds for interference in the well-considered orders passed by both authorities. 5. After hearing learned Counsels appearing for the parties for considerable length of time and after thorough evaluation of the original records made available by learned Counsel appearing for second respondent-Society and also the statement of accounts, produced by him along with the memo dated 17th December, 2006, including the award passed by the Departmental Arbitrator vide Annexure-C and the order passed by Tribunal in Appeal No. 974 of 2004 vide Annexure-E, it is manifest on the face of the records and the orders passed by both the authorities that, they have not committed any error much less material irregularity as such in passing the same. It is significant to note that, in pursuance of the notice issued by the Departmental Arbitrator, the first petitioner has engaged the services of a Counsel and filed his objections on 11th November. 2003. The same was taken on record and the second petitioner was also present personally and he has also stated in unequivocal terms that, they have availed the loan of Rs. 2,75,000/- with interest at the rate of 18% and penal interest at 2% and they are ready to pay the said amount. The said specific admission made by petitioners has been recorded in the order sheet maintained by the Departmental Arbitrator which is produced by the learned Counsel along with the writ petition vide Annexure-B, at page 14 of the writ petition. The said specific admission made by petitioners has been recorded in the order sheet maintained by the Departmental Arbitrator which is produced by the learned Counsel along with the writ petition vide Annexure-B, at page 14 of the writ petition. From the same, it can be seen that, the Departmental Arbitrator, after considering the oral evidence of the representative of second respondent-Society and in view of the admission made by second petitioner, regarding the loan availed by them and that they are ready to pay the said amount, and with reference to the entire relevant documents made available by second respondent-Society, has passed the impugned award. The said facts have been reiterated by the Tribunal and the Tribunal, with reference to the entire original records made available by Stat" representative on behalf of the first respondent, has given a finding by observing that, the obtaining of loan by petitioners is admitted with 18% interest and 2% penal interest and the Departmental Arbitrator has recorded the deposition of the second respondent-Society which is at page 32 of the LCR; the Counsel for first petitioner has filed his objections and the same is available in original records at page 30 and further, the Departmental Arbitrator has verified the loan documents namely, the On Demand Pro-note which is at page 12 of the LCR; Memorandum of Deposit of Title deeds on a stamped paper pages 1 to 10; Application for loan pages 14 to 16; the final notice sent by the second respondent-Society addressed to the petitioners herein by RP AD pages 17 and 18 and after perusing the deposition of the representative of second respondent and after verification of loan documents produced by the representative of second respondent, has passed the award for recovery of the amount with interest as per the contract. The Tribunal after observing as above has opined that, the Departmental Arbitrator has passed a well-considered order and as such there is no need for them to interfere with the same. The said reasoning given by the Tribunal, after appreciation of oral and documentary evidence, available on file and after appreciation of credible document.ary evidence, at paragraph 9 of its order is just and proper. The said reasoning given by the Tribunal, after appreciation of oral and documentary evidence, available on file and after appreciation of credible document.ary evidence, at paragraph 9 of its order is just and proper. Hence, I do not find any illegality as such committed by the Departmental Arbitrator or the Tribunal inasmuch as both the authorities after proper verification of the entire original records available on file have passed the impugned orders. Both the authorities, after critical evaluation of the oral and documentary license, have recorded concurrent finding of fact against the petitioners. Hence, interference by this Court in the well-considered orders passed by both authorities is not justifiable under Articles 226 and 227 of the Constitution of India, as held by Apex Court and this Court in catena of neither judgments nor petitioners have made out any good grounds to entertain the instant writ petition. 6. Having regard to the facts and circumstances of the case, as stated above, the Writ petition filed by petitioners is dismissed as devoid of any merits.