K. Chandra Bose v. Methala Ksheerolpadaka Sahakarana Sangham Ltd represented by its President N. P. Sunil Kumar
2013-11-19
A.V.RAMAKRISHNA PILLAI
body2013
DigiLaw.ai
Judgment : 1. The prayer in this writ petition is to quash Exts.P1 award, P2 judgment and P3 demand notice. There is a further prayer for restraining the respondents from initiating any proceedings against the petitioners for recovery of the alleged award amount. 2. The 1st petitioner was the Secretary of the 1st respondent Society. Respondents 1 and 2 filed arbitration proceedings against the petitioners for realization of a sum of 1,04,668.63/-, which is said to have been misappropriated by the 1st petitioner. The arbitrator passed the award allowing the respondents to realize the award amount of 1,00,183.65 with interest @ 18% and costs by auctioning the scheduled property in the award. This was confirmed by the Co-operative Tribunal. The 3rd respondent initiated proceedings to recover the amounts as per the award. It is in this context, the petitioners have come up before this Court. 3. A detailed counter affidavit has been filed by respondents 1 and 2 supporting Exts.P1 award and P2 judgment of the Co-operative Tribunal. 4. I have heard the learned counsel for the petitioners and the contesting respondents. 5. Following are the arguments advanced by the learned counsel for the petitioners: a) There is no arbitrable dispute to be arbitrated as contemplated under Section 69 of the Co-operative Societies Act and Rule 67 of the Co-operative Societies Rules. b) The 2nd petitioner is the owner of the property scheduled in the arbitration award and he is living with his wife in the house therein with the income taken from that property. The 2nd petitioner has executed a settlement deed in the year 1992 in the name of the 1st petitioner and; the 2nd and 3rd petitioners are not having any right over the scheduled property other than the right stipulated in the settlement deed. Therefore, the award confirmed by the Co-operative Tribunal that the award amount could be recovered by auctioning the properties scheduled in the award is illegal and unsustainable. c) Though the respondents raised disputes and filed claim statement seeking relief against the 1st petitioner, the arbitrator found the 4th and 5th petitioners as jointly and severally liable along with the 1st petitioner. d) The award passed by the arbitrator charging liabilities on the property is without jurisdiction. 6.
c) Though the respondents raised disputes and filed claim statement seeking relief against the 1st petitioner, the arbitrator found the 4th and 5th petitioners as jointly and severally liable along with the 1st petitioner. d) The award passed by the arbitrator charging liabilities on the property is without jurisdiction. 6. Though it was argued by the learned counsel for the petitioners that 1st petitioner was not given an opportunity for cross-examining the witnesses, the records would show that in fact, there was no request for the same. The contention regarding the inclusion of other petitioners as parties also will not stand. The respondents have impleaded the other parties by way of abundant caution to avoid multiplicity of proceedings and; in fact, they got an opportunity to defend their case. The argument that there is no arbitrable dispute is also not convincing. The dispute comes well within Section 69 of the Co-operative Societies Act. 7. It is relevant to note that this Court is not sitting in an appeal over the decision of the arbitrator or the Co-operative Tribunal. The interference of this Court under Article 226 of the Constitution of India is very limited. 8. The only scope for interference in this writ petition with the impugned award, which was confirmed by the Co-operative Tribunal, is regarding the further interest allowed on the award amount of 1,00,183.65/-. The aforesaid sum is inclusive of interest. By the impugned award, interest @ 18% per annum is charged again over the amount awarded. That is unjustifiable and, therefore, the award, which is confirmed by the impugned judgment, requires a modification. In all other respects, the award and the judgment of the Co-operative Tribunal shall stand. Therefore, the writ petition is allowed in part. The direction in Ext.P1 award so far as it imposes an additional interest on the amount of 1,00,183.65/- is hereby set aside. The respondent Society shall work out the exact amount and; the statement showing the same shall be served on the petitioners within a period of one month from today. On receipt of such statement, the petitioners shall pay off the amount in nine equal monthly installments. If the petitioners fail to pay off any of the monthly installments, it shall be open to the respondent Society to proceed with the execution proceedings.