Arbitrator Has Powers To Set Aside Ex-Parte Award Kerala High Court
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Live LawIN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
MONDAY, THE 6TH DAY OF JULY 2015/15TH ASHADHA, 1937
OP(C).No. 14 of 2015 (O)
------------------------AGAINST THE JUDGMENT IN APPEAL NO. 11/2014
OF KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM
AGAINST THE ORDER IN IA NO. 14/2013 IN ARC.NO. 147/2009
OF CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM
--------------------PETITIONER :
--------------------KERALA STATE CO-OPERATIVE CONSUMER FEDERATION LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR, GANDHI NAGAR
ERNAKULAM.
BY ADVS.SRI.A.SUDHI VASUDEVAN
SMT.K.PUSHPAVATHI
SRI.R.SYLESHWAREN NAIR
SRI.JOSE JONES JOSEPH
RESPONDENT(S) :
---------------------------1. K.VASU
PRANAVAM, GAYATHRI ENCLAVE, MARADU POST
ERNAKULAM - 682 304.
2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES
THIRUVANANTHAPURAM - 695 001.
3. M.NIZAR (NOT PARTY IN APPEAL)
PRASANTH NAGAR, ULLOOR, MEDICAL COLLEGE P.O.
THIRUVANANTHAPURAM - 695 001.
R1 BY ADV. SRI.P.N.MOHANAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06-07-2015, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
Mn
...2/-
OP(C).No. 14 of 2015 (O)
---------------------------------APPENDIX
PETITIONERS' EXHIBITS :
------------------------------------EXT. P1 -
A TRUE COPY OF THE EX-PARTE AWARD DT. 09.2.12 PASSED BY THE
ARBITRATION COURT IN ARC 147/2009.
EXT. P2 -
A TRUE COPY OF THE IA NO. 14/2013 FILED BY THE PETITIONER
HEREIN, IN ARC 147/2009 BEFORE THE ARBITRATION COURT.
EXT. P3 -
TRUE COPY OF IA NO. 25/2013 FILED BY THE PETITIONER BEFORE
THE ARBITRATION COURT FOR IMPLEADING.
EXT. P4 -
TRUE COPY OF THE ORDER DT. 10.10.13 PASSED BY ARBITRATION
COURT IN IA 14/2013 IN ARC 147/2009.
EXT. P5 -
TRUE COPY OF THE JUDGMENT DT. 29.10.14 PASSED BY THE KERALA
CO - OPERATIVE TRIBUNAL IN APPEAL 11/2014.
RESPONDENT(S)' EXHIBITS :
NIL
--------------------------------------------------------------//TRUE COPY//
P.A. TO JUDGE
Mn
[CR]
B. KEMAL PASHA, J.
`````````````````````````````````````````````````````````````
O.P.(C) No.14 of 2015
`````````````````````````````````````````````````````````````
Dated this the 6th day of July, 2015
JUDGMENT
~~~~~~~~~
An Arbitrator under the Co-operative Societies
Act, 1969, has passed an ex-parte award. The defendant
against whom the ex-parte award was passed, has
approached
the
Arbitrator
through
I.A.14/2013
in
ARC.147/2009 to get the ex-parte award set aside. The
Arbitrator has taken the view that the defeated defendant
ought to have filed an appeal before the Tribunal, and an
application filed for getting the ex-parte award set aside was
not maintainable.
2.
Heard learned counsel for the petitioner and
learned counsel for the respondent.
3.
The position is covered by the decision in Cheru
OPC.14/2015
:2 :
Ouseph v. Kunjipathumma
[1981 KLT 495], wherein it
was held as follows:All powers which are not specifically
denied by the statute or the statutory rules
should be vouchsafed to a Tribunal that it
may effectively exercise its judicial function.
The said decision in Cheru Ouseph (Supra) has been
upheld by the Division Bench of this Court in Thankam R.
Pillai v. Arbitrator [1996 KHC 49].
5.
In Ebrahim Ismail Kunju v. Phasila Beevi [1991
(1) KLT 861], it was held:A Tribunal should be facilitated to do all
that a court could do in similar situations; and
much more than that. Greater speed and the
total
liberation
from
the
tentacles
of
technicalities, give a better look and greater
efficience for effectively manned Tribunals. If
there be no statutory prohibition, the Tribunal
should therefore normally be in a position to
ordain its affairs and modulate its procedures
in such a manner as to best subserve the
interest of the public, and in particular the
OPC.14/2015
:3 :
litigant public. Looked that way, even in the
absence of an enumerated head of statutory
power on the conjoint reading of S.23 and the
enumerated provisions of the C.P.C. Referred
to in that section, this court would have
permitted the Tribunal to pass an Order which
would better serve the interest of the litigant
and of the Tribunal.
6.
In Thankam R. Pillai (supra), it was held that the
Arbitrator functioning under the Co-operative Societies Act is
an adjudicatory body coming within the meaning of the term
'Tribunal', which is a quasi judicial adjudicatory body and,
therefore, the principles laid down by the Supreme Court in
Rameshwar Manjhi v. Management of Sangramgarh
Colliery [AIR 1994 SC 1176] are equally applicable to a
proceeding pending before the Arbitrator.
It was held
therein that even though there is no specific provision in the
Act for enabling the Arbitrator to bring on record the legal
representatives of the deceased party, the Arbitrator being
an adjudicatory body, which has quasi judicial powers, has
OPC.14/2015
:4 :
got the authority to implead the legal representatives, even
though no specific power for the same is prescribed in the
Co-operative Societies Act.
7.
It is true that a power to set aside an ex-parte
award has not been expressly given to the Arbitrator as per
the Co-operative Societies Act. At the same time, from all
the above, it is evident that the Arbitrator has powers to set
aside an ex-parte award, as such a power is inherent in the
exercise of jurisdiction by such a quasi judicial adjudicatory
body. The Arbitrator ought to have exercised his powers to
deal with the question as to whether the ex-parte award
passed was liable to be set aside or not. Instead of it, it
seems that the Arbitrator has simply passed Ext.P4 order by
finding that the party ought to have filed an appeal and not
an IA for getting the ex-parte award set aside. The whole
approach made by the Arbitrator seems to be illegal in view
of the decisions noted above.
In the result, this O.P.(Civil) is allowed. Ext.P4 order
OPC.14/2015
:5 :
stands set aside and consequently, Ext.P5 passed by the
Kerala
Co-operative
Tribunal
is
also
set
aside.
IA
No.14/2013 in ARC.147/2009 stands allowed. The ex-parte
award stands set aside. The Arbitrator is directed to proceed
with the matter accordingly.
Sd/(B.KEMAL PASHA, JUDGE)
aks/06/07
// True Copy //
PA to Judge
