Secretary, A. 2591, Madura Coats Employees' Co-operative Housing Society Ltd. , P. P. Chavadi, Madurai v. Principal District Judge, District Court Buildings, Madurai
2014-08-04
S.NAGAMUTHU
body2014
DigiLaw.ai
Judgment : 1. Challenge in this writ petition is to the order of the Co-operative Tribunal cum Principal District Judge, Madurai, in C.M.A.(C.S.).No.17 of 2008, dated 24.09.2010. 2. The facts of the case would be as follows; The petitioner is a co-operative society, governed by the Tamil Nadu Co-operative Societies Act. The respondents 2 & 3 are the members of the said society. They had borrowed a sum of Rs.3,30,000/- from the petitioner society, promising to repay the same with interest at the rate of 17.5% per annum. In this regard, they had also executed a mortgage deed. But, they failed to repay the said amount. Therefore, the petitioner initiated arbitration proceeding in ARC No.2024/02-03 before the Arbitrator, under Section 90 of the Tamil Nadu Co-operative Societies Act. The Arbitrator finally by award, dated 17.10.2007, directed the respondents 2 & 3 to pay a sum of Rs.7,93,019/- with interest at the rate of 14.5% from 17.10.2007. As against the said award, the respondents 2 & 3 filed an appeal before the Co-operative Tribunal cum Principal District Judge, Madurai, in C.M.A.(C.S.) No.17 of 2008. By order dated 24.09.2010, the learned Tribunal allowed the appeal, thereby setting aside the award of Arbitrator and remanded the same back to the Arbitrator for passing fresh award, after affording sufficient opportunity to the respondents 2 & 3. Challenging the same, the petitioner is before this Court with this writ petition. 3. I have heard the learned counsel for the petitioner and the learned counsel appearing for the second respondent. I have also perused the records carefully. 4. The learned counsel for the petitioner, by taking me through the grounds raised in the writ petition, would submit that the respondents 2 & 3 did not avail the benefit of waiver of interest granted by the Government under a scheme. The learned counsel would point out that as per the scheme, for waiver of interest the respondents 2 & 3 should have paid the stipulated amount within the time prescribed. Since they did not pay, they are not entitled for waiver of interest. The learned counsel would further submit that there was no dispute in respect of the principal amount and interest, and therefore, the award cannot be found fault with. 5.
Since they did not pay, they are not entitled for waiver of interest. The learned counsel would further submit that there was no dispute in respect of the principal amount and interest, and therefore, the award cannot be found fault with. 5. When a specific query was made as to whether the petitioner has got any dispute with regard to the two receipts, dated 31.05.2005, produced by the respondents 2 & 3 before the Tribunal for Rs.25,000/- and Rs.3,100/-, the learned counsel for the petitioner submitted that the petitioner has got no dispute at all in respect of those two payments made. The learned counsel would submit that when the waiver scheme announced by the Government was not availed of by the respondents 2 & 3, when there was no dispute with regard to the interest to be paid, as per the terms of the mortgage, the Tribunal ought not to have remanded the matter back for fresh award. 6. The learned counsel appearing for the second respondent would refute to these allegations. According to him, the respondents 2 & 3 are entitled for the benefit of the waiver scheme, as propounded by the Government. He has further submitted that since the details of the scheme were not produced before the Tribunal by the petitioner, the Tribunal remanded the matter back to the Arbitrator for fresh consideration of the issue. He would further submit that there is no infirmity in the order of the Tribunal, warranting interference at the hands of this Court. 7. I have considered the rival submissions. 8. At the outset, I should say that the Arbitrator, who is a quasi judicial authority, is expected to pass a detailed order considering the claims and objections, and evidence let in by the parties before him. The award so passed, undoubtedly, should be a speaking order. But, in the instant case, the award of the arbitrator, dated 17.10.2007, does not satisfy these elementary requirements of an award. A perusal of the same, vide page No.18 of the typed set of papers of the petitioner, would go to show that the Arbitrator has got a printed format with certain blanks, such as name of the parties, number of the case, amounts claimed and amount awarded, etc.
A perusal of the same, vide page No.18 of the typed set of papers of the petitioner, would go to show that the Arbitrator has got a printed format with certain blanks, such as name of the parties, number of the case, amounts claimed and amount awarded, etc. The blanks have been subsequently filled up with pen signed by the Arbitrator and the same is stated to be the award passed by the Arbitrator. 9. In my considered opinion, this shows the total non application of mind on the part of the Arbitrator. The Arbitrator, as I have already pointed out, ought not to have used a printed format with blanks so as to fill up the blanks and to produce the same as award. The award should be a speaking order containing the claims and objections. Assuming that there was no objection from the respondents before the Arbitrator and assuming the worst that the defendant did not appear before the Arbitrator, even then an ex parte award should also be a speaking award and the same should not be drawn in a mechanical passion by filling up the blanks in a printed format. This only would go to show that the arbitrator has not discharged his duty as a quasi judicial authority, as expected of by law. Though the Tribunal has not considered this point, in my considered opinion, on this ground also, the Tribunal ought to have set aside the award of the Arbitrator. 10. Now, turning to the order of the Tribunal, I should to say that the writ proceedings cannot be converted either as a revision or as a second appeal, so as to reappreciate the entire evidence and to substitute the views of this Court in the place of the views expressed by the Tribunal. In other words, in a writ proceeding, the powers of this Court to appreciate the evidence are very limited. Unless it is shown to this Court that the finding of the Tribunal is perverse or the same on the face of it is erroneous, it is not possible for this Court to interfere with the same. In this case, I do not find any such ground in favour of the petitioner. 11.
Unless it is shown to this Court that the finding of the Tribunal is perverse or the same on the face of it is erroneous, it is not possible for this Court to interfere with the same. In this case, I do not find any such ground in favour of the petitioner. 11. The Tribunal has held that the question as to whether the respondents 2 & 3 are entitled for the benefit of waiver of interest or not is a matter to be gone into by the Arbitrator. A perusal of the award of the Arbitrator would go to show that there is no consideration of the waiver scheme. The Arbitrator has not stated that the respondents 2 & 3 are not entitled for the waiver scheme. The waiver scheme was issued on 15.04.2005, whereas the award of the Arbitrator was passed on 17.10.2007. Therefore, by all means, it would have been appropriate for the Arbitrator to consider the waiver scheme and to give a finding as to whether the respondents 2 & 3 are entitled for waiver scheme and whether they are entitled for waiver of the interest. 12. Though the learned counsel for the petitioner would contend before this Court that the respondents 2 & 3 are not entitled for the benefits of the waiver scheme, since they did not comply with the terms and conditions of the scheme, I do not find any such finding in the award of the Arbitrator. When that be so, it is not permissible for the petitioner to improve his case before this Court by saying that the respondents 2 & 3 are not entitled for the benefit of the waiver scheme. The Tribunal has rightly held that it is a matter to be decided by the Arbitrator. I do not find any error in it. 13. Similarly, some amount was paid by the respondents 2 & 3 on 31.05.2005 under two separate receipts. They were produced before the Tribunal. Even before this Court, when a specific query was made as to whether there is any dispute regarding the receipts produced by the respondents 2 & 3, the learned counsel for the petitioner submitted that there is no dispute over the same. A perusal of the award would go to show that the receipt of these two payments have not been considered.
A perusal of the award would go to show that the receipt of these two payments have not been considered. It is for this reason also the Tribunal found that it is for the Arbitrator to consider as to what exactly is the principal amount and interest which is bound to be paid by the respondents 2 & 3. In this conclusion, arrived at by the Tribunal also, I do not find anything erroneous. 14. Above all, the award of the Tribunal was on 24.09.2010, whereas the writ petition was filed only on 07.02.2011. There is no explanation for the said delay. I hold, on this score, that the petitioner is guilty of latches also. In my considered opinion, by this time, the petitioner would have got an award before the Arbitrator, as directed by the Tribunal. But, instead of adopting the said course, the petitioner has rushed to this Court with this writ petition. In my considered opinion, the said attempt is unwarranted and the same is a clear abuse of process of law. 15. In view of all the above, I find no merit in this writ petition. This writ petition fails and the same is accordingly dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs.