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C.K. Damodaran and anr. Vs. the Kerala Co-operative Tribunal, Trivandrum and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration;Limitation
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 45 of 1979
Judge
Reported inAIR1980Ker227
ActsKerala Co-operative Societies Act, 1969 - Sections 82; Kerala Co-operative Societies Rules, 1969 - Rule 68
AppellantC.K. Damodaran and anr.
RespondentThe Kerala Co-operative Tribunal, Trivandrum and ors.
Appellant Advocate M. Krishnakumar, Adv.
Respondent AdvocateGovt. Pleader
DispositionAppeal allowed
Cases ReferredLucknow v. Nand Singh
Excerpt:
- - 5. the learned single judge dismissed the writ petition on the short ground that no interference was called for with the order passed by the co-operative tribunal on the basis of the finding of fact arrived at by it that the petitioners had failed to furnish a satisfactory explanation for the delay. it is now well established that the mere writing of an order or award and keeping it in the file or office of the arbitrator will not render the award effective and it is only when the award is made known to the defendants concerned by some recognised mode of communication that it becomes operative. one such well recognised mode of putting the parties in knowledge of the award is to pronounce it in their presence in open court......28-1-1975. producing the said certified copy, the petitioners filed an appeal before the kerala co-operative tribunal, trivandrum under section 82 of the act on 17-2-1975 together with an application praying that the delay, if any, in the presentation of the said appeal should be condoned.2. the co-operative tribunal rejected the application for condonation of delay by its order ext. p-1 dated 28th feb., 1976. the tribunal took the view that the period of limitation of 60 days for filing the appeal prescribed by section 82 of the act started running from the very date on which the award was passed by the arbitrator and even after excluding the time spent by the petitioners (26 days) in getting the certified copy from the office of the arbitrator there was a delay of 16 days in filing the.....
Judgment:

Balakrishna Eradi, C.J.

1. The two writ petitioners in O. P. Mo. 2392 of 1976 are the appellants before us. They figured as defendants in an arbitration case instituted by the second respondent - the Liquidator, Puthupally Coir Vyavasaya Co-operative Society Limited before the Special Officer for Coir, Trivandrum, who had been empowered to exercise the powersof a Registrar under the Co-operative Societies Act and to function as the arbitrator under Section 69 of the said Act. Subsequently, the case was transferred from the file of the Special Officer for Coir, Trivandrum to that of the 3rd respondent -- the Assistant District Industries Officer (Coir) Kayamkulam who had also been invested with the powers of a Registrar under Section 69 of the Act. The arbitrator passed an award in the case on 7-11-1974. A notice of the award was issued to the petitioners under Rule 68 of the Kerala Co-operative Societies Rules on 20-12-1974 and it was actually served on the petitioners on 30-12-1974. The petitioners thereafter applied for the grant of a certified copy of the award on 2-1-1975 and the copy was furnished to them on 28-1-1975. Producing the said certified copy, the petitioners filed an appeal before the Kerala Co-operative Tribunal, Trivandrum under Section 82 of the Act on 17-2-1975 together with an application praying that the delay, if any, in the presentation of the said appeal should be condoned.

2. The Co-operative Tribunal rejected the application for condonation of delay by its order Ext. P-1 dated 28th Feb., 1976. The Tribunal took the view that the period of limitation of 60 days for filing the appeal prescribed by Section 82 of the Act started running from the very date on which the award was passed by the arbitrator and even after excluding the time spent by the petitioners (26 days) in getting the certified copy from the office of the arbitrator there was a delay of 16 days in filing the appeal. The Tribunal further held that the petitioners had not furnished any proper explanation for the said delay and hence the prayer for condonation of the delay could not be granted. On this reasoning the Tribunal rejected the petitioners' application for condonation of the delay in filing the appeal. The challenge in the writ petition (O. P. No. 2392 of 1976) was directed against the order Ext. P-l.

3. The main ground taken by the Writ petitioners in the Original Petition was that the Co-operative Tribunal had committed a manifest error of law in thinking that the period of limitation had to be reckoned from the very date on which the award was passed by the arbitrator irrespective ofwhether it had been made known to the defendants (petitioners) either by its pronouncement in their presence or by its being communicated to them. The petitioners have made a categorical averment in the Original Petition that the award was not pronounced by the arbitrator in their presence and that they came to know about the award only on receipt of the notice dated 20-12-1974 which reached them on 30-12-1974.

4. A counter-affidavit has been filed on behalf of the 2nd respondent by the present incumbent of the post of Liquidation Inspector (Coir) Alleppy who is also functioning as the liquidator of the Puthupally Coir Vyava-saya Co-operative Society Limited. Therein it has been averred that the award was , pronounced by the arbitrator on 7-11-1974, and that the petitioners were present at the time. The source of knowledge of the deponent of the counter-affidavit regarding the facts submitted therein is mentioned in para 1 as follows:

'I am conversant with the facts of this case as revealed from the relevant records.'

It is not contended before us that the deponent of the counter-affidavit was functioning as the liquidator of the cooperative society in question at the relevant point of time when the arbitration case was decided by the arbitrator. He could not therefore have any personal knowledge as to the presence or otherwise of the petitioners before the arbitrator at the time of pronouncement of the award. The files produced by the Government Pleader no doubt show that on 7-11-1974 an application had been filed before the arbitrator by the writ petitioners praying for the grant of an opportunity to them to produce certain documents and adduce some additional evidence. There is a reference in the penultimate paragraph of the award to the said request made by the defendants (writ petitioners) and it is stated by the arbitrator that he had rejected that request. These facts would however only show that at some stage of the proceedings before the arbitrator on 7-11-1974 the petitioners were present Whether they continued to be present before the arbitrator at the time when the award was actually pronounced cannot be satisfactorily determinedwith reference to the flies produced before us.

5. The learned single Judge dismissed the writ petition on the short ground that no interference was called for with the order passed by the Co-operative Tribunal on the basis of the finding of fact arrived at by it that the petitioners had failed to furnish a satisfactory explanation for the delay.

6. In our opinion, there is force in the contention urged by the counsel for the petitioners that any question of condonation of delay would arise in the case only in case the presentation of the appeal was found to be beyond the period of 60 days prescribed by Section 82 of the Act, and this would depend on whether the period of limitation is to be reckoned from the date of passing of the award itself or only from the date on which the award was made known to the defendants either by its being pronounced in their presence or by its being communicated to them. With respect, we consider that the omission to deal with the aforesaid point has vitiated the judgment of the learned single Judge. It is now well established that the mere writing of an order or award and keeping it in the file or office of the arbitrator will not render the award effective and it is only when the award is made known to the defendants concerned by some recognised mode of communication that It becomes operative. One such well recognised mode of putting the parties in knowledge of the award is to pronounce it in their presence in open Court. If that is not done, the gist of the award has to be communicated by arbitrator to the defendants by post as prescribed by Rule 68 of the Co-operative Societies Rules. The date of pronouncement of the award in the presence of the parties or the date of commu-nication of the gist of the award to the parties under Rule 68 alone would constitute the starting point of limi-tation for filing an appeal under Section 82 of the Act. The recent pronouncement of the Supreme Court in Asstt. Transport Commr., Lucknow v. Nand Singh (AIR 1980 SC 15) is clear authority for this position.

7. Since the Tribunal has approached the case on a misconception that limitation started running against the defendants from 7-11-1974 itself irrespective of any question as to whether they had knowledge of the award on that date, it has not conducted any investigation into the question as to whether the defendants (petitioners) were present before the arbitrator at the time of pronouncement of the award. We consider that this crucial question has to be gone into and determined by the Tribunal before it can be said whether the appeal filed by the petitioners was barred by time. As already observed by us, the materials available on the files produced before us by the Government Pleader are not sufficient to enable us to satisfactorily determine the aforesaid question of fact. In the circumstances we consider it necessary to remit the case back to the Co-op. Tribunal for fresh determination of the question as to whether the appeal was presented by the petitioners beyond the period of sixty days prescribed by Section 82, such period being calculated in the manner as indicated above, namely, commencing from the date on which the petitioners had knowledge about the passing of the award.

8. The judgment of the learned single Judge will stand set aside and the order Ext. P-1 will stand quashed. The Writ Appeal is disposed of with the aforesaid direction given to the Tribunal to which the case will stand remanded. The parties will bear their respective costs in this appeal.


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