Kerala High Court
Anthony vs The Thrissur Service Co-Operative Bank on 15 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 15TH DAY OF FEBRUARY 2022/26TH MAGHA, 1943
OP(C) NO.295 OF 2022
AGAINST THE ORDER DATED 04.01.22 IN RP 40/2021 OF KERALA
CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM IN ARC
NO.447/2016 ON THE FILES OF ARBITRATOR
PETITIONERS/DEFENDANTS:
1 JOSHI, AGED 40 YEARS, S/O. GEORGE,
KIDACHIRA HOUSE, POOVANCHIRA VILLAGE,
PANACHERI TALUK, PIN - 680652.
2 ANTHONY, AGED 71 YEARS, S/O.VARKI,
NAMBALAMPARA VEETIL, POOVANCHIRA VILLAGE,
PANACHERI TALUK, PIN - 680652.
3 MERI, AGED 65 YEARS, W/O.ANTHONY,
NAMBALAMPARA VEETIL, POOVANCHIRA VILLAGE,
PANACHERI TALUK, PIN - 680652.
4 LIJO, AGED 38 YEARS, S/O.ANTHONY,
NAMBALAMPARA VEETIL, POOVANCHIRA VILLAGE,
PANACHERI TALUK, PIN - 680652.
5 LIBIN, AGED 36 YEARS, S/O.ANTHONY,
NAMBALAMPARA VEETIL, POOVANCHIRA VILLAGE,
PANACHERI TALUK, PIN - 680652.
BY ADV. SRI.A.MUHAMMED MUSTHAFA
RESPONDENT/PLAINTIFF:
THE THRISSUR SERVICE CO-OPERATIVE BANK,
R.NO.1094, REPRESENTED BY ITS SECRETARY,
BINU, S/O.VISHWANATHAN, NELLIPARAMBIL HOUSE,
ALAPPAD DESOM, ALAPPAD VILLAGE,
THIRISSUR TALUK, PIN - 680564.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
15.02.2022, ALONG WITH OP(C).296/2022 AND OP(C).297/2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) Nos.295, 296 & 297 of 2022
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
OP(C) NO. 296 OF 2022
AGAINST THE ORDER IN RP 42/2021 OF KERALA CO-OPERATIVE
TRIBUNAL, THIRUVANANTHAPURAM IN ARC NO.445/2016 ON THE
FILES OF ARBITRATOR
PETITIONERS/DEFENDANTS:
1 LIBIN, AGED 36 YEARS, S/O. ANTHONY,
NAMBALAMPARA VEETIL, POOVANCHIRA VILLAGE,
PANACHERI TALUK, PIN - 680652.
2 ANTHONY, AGED 71 YEARS, S/O.VARKI,
NAMBALAMPARA VEETIL, POOVANCHIRA VILLAGE,
PANACHERI TALUK, PIN - 680652.
3 MERI, AGED 65 YEARS, W/O.ANTHONY,
NAMBALAMPARA VEETIL, POOVANCHIRA VILLAGE,
PANACHERI TALUK, PIN - 680652.
4 LIJO, AGED 38 YEARS, S/O.ANTHONY,
NAMBALAMPARA VEETIL, POOVANCHIRA VILLAGE,
PANACHERI TALUK, PIN - 680652.
5 JOSHI, AGED 40 YEARS, S/O. GEORGE,
KIDACHIRA HOUSE, POOVANCHIRA VILLAGE,
PANACHERI TALUK, PIN - 680652.
BY ADV. SRI.A.MUHAMMED MUSTHAFA
RESPONDENT/PLAINTIFF:
THE THRISSUR SERVICE CO-OPERATIVE BANK,
R.NO. 1094, REPRESENTED BY ITS SECRETARY,
BINU, S/O.VISHWANATHAN, NELLIPARAMBIL HOUSE,
ALAPPAD DESOM, ALAPPAD VILLAGE,
THRISSUR TALUK, PIN - 680564.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
15.02.2022, ALONG WITH OP(C).295/2022 AND OP(C).296/2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) Nos.295, 296 & 297 of 2022
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
OP(C) NO. 297 OF 2022
AGAINST THE ORDER IN RP 48/2021 OF KERALA CO-OPERATIVE
TRIBUNAL, THIRUVANANTHAPURAM IN ARC NO.450/2016 ON THE
FILES OF ARBITRATOR
PETITIONER/DEFENDANTS:
1 ANTHONY, AGED 71 YEARS, S/O.VARKI,
NAMBALAMPARA VEETIL, POOVANCHIRA VILLAGE,
PANACHERI TALUK, PIN - 680652.
2 MERI, AGED 65 YEARS, W/O.ANTHONY,
NAMBALAMPARA VEETIL, POOVANCHIRA VILLAGE,
PANACHERI TALUK, PIN - 680652.
3 LIJO, AGED 38 YEARS, S/O.ANTHONY,
NAMBALAMPARA VEETIL, POOVANCHIRA VILLAGE,
PANACHERI TALUK, PIN - 680652.
4 LIBIN, AGED 36 YEARS, S/O.ANTHONY,
NAMBALAMPARA VEETIL, POOVANCHIRA VILLAGE,
PANACHERI TALUK, PIN - 680652.
5 JOSHI, AGED 40 YEARS, S/O.GEORGE,
KIDACHIRA HOUSE, POOVANCHIRA VILLAGE,
PANACHERI TALUK, PIN - 680652.
BY ADV. SRI.A.MUHAMMED MUSTHAFA
RESPONDENT:
THE THRISSUR SERVICE CO-OPERATIVE BANK,
R.NO.1094, REPRESENTED BY ITS SECRETARY,
BINU, S/O.VISHWANATHAN, NELLIPARAMBIL HOUSE,
ALAPPAD DESOM, ALAPPAD VILLAGE,
THRISSUR TALUK, PIN - 680564
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
15.02.2022, ALONG WITH OP(C).295/2022 AND 296/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) Nos.295, 296 & 297 of 2022
4
JUDGMENT
Common order passed by the Kerala Co- operative Tribunal, Thiruvananthapuram in Revision Petition Nos.36, 38 and 42 of 2021 dated 04.01.2022, is under challenge in these Original Petitions filed under Article 227 of the Constitution of India.
2. In these cases, the petitioners, who are the respondents in A.R.C.Nos.445/2016, 447/2016 and 450/2016, before the Arbitrator denied execution of the documents alleging availing of loan and, thereby they sought to send the documents for getting expert opinion. The learned Tribunal dismissed the said prayer. Thereafter, the matter has been taken before the Kerala Co-operative Tribunal, Thiruvananthapuram by way of revision. As per the common order dated 04.01.2022, the Kerala State Co-operative Tribunal dismissed the said plea.
OP(C) Nos.295, 296 & 297 of 2022 5
3. Heard the learned counsel for the petitioners.
4. The learned counsel for the petitioners submitted that the Kerala Co- operative Tribunal has power to get expert opinion in cases, where the genuineness of the documents alleged to be executed by the petitioners is under challenge. According to the learned counsel, the Arbitrary Tribunal as well as the Co-operative Tribunal ought to have alleged the petition so as to prove the contention raised by the petitioners herein and to substantiate the onus in this regard caused upon them.
5. He submitted further that the revision petitioners has filed written statement before the Arbitrary Tribunal contending that the documents are forged and, therefore, appointment of an expert is necessary. According to the learned counsel, the reason OP(C) Nos.295, 296 & 297 of 2022 6 stated by the Arbitrary Tribunal as well as the Co-operative Tribunal, are not justifiable while dismissing application for sending the documents for expert opinion.
6. I have perused the copies of the written statement filed by the petitioners herein before the Arbitrary Tribunal. It has been stated therein that the documents alleged to have been executed for availing the loan by the petitioners are forged. At the same time, the petitioners raised contention that those documents were forged by using blank signed papers given by the petitioners under the guise of taking membership in the Bank. When I have perused Ext.P3 series, I could gather that Gehan deed also was alleged to be executed by the petitioners herein as per the case put up by the Bank. Apart from that in Ext.P1 series the loan agreement also, the signatures of the petitioners could be found. OP(C) Nos.295, 296 & 297 of 2022 7 On going through the signatures in Ext.P3 series with title 'Form for creating Gehan/ Mortgage/Hypothecation' therein, description of the scheduled property could be found. Apart from that the thumb impressions of the parties along with their signatures could be gathered therefrom. But in the petition, there is no prayer at the instance of the petitioners to compare the thumb impression therein. Apart from that, the contention of the petitioners is that documents were created by using the signed blank papers issued by them. Therefore, they admitted the signatures in the documents. However, their contention is that the age of the signatures required to be proved by getting an expert opinion. In the petition filed by the petitioners, nothing stated with regard to the name of the lab, where such facility is available.
7. Going by the documents and the nature OP(C) Nos.295, 296 & 297 of 2022 8 of contentions raised, petitioners admitted their signatures in the documents alleged to be executed by the petitioners, with a rider that those documents forged in blank signed paper given for getting membership. But the petitioner not stated anything with regard to the thumb impressions in the said documents. I do not think that for getting membership in Co-operative Society, this much numbers of papers affixed with thumb impression would given by any man of ordinary prudence. Thus the defence canvassed by the petitioners even not digestible to prudence. Therefore, I can not justify the contentions raised by the learned counsel for the petitioners to unsettle the concurrent findings entered into by the Arbitrary Tribunal as well as the Co- operative Tribunal in the matter of refusing the opinion evidence as sought for.
It is relevant to note that proving OP(C) Nos.295, 296 & 297 of 2022 9 documents to support the contentions is the burden of the party, who relies on the same and substantiate evidence is more relevant and cogent than opinion evidence in such cases. Going by the above discussion, I find no merits in these petitions and accordingly, these Original Petitions are dismissed.
Sd/-
A.BADHARUDEEN, JUDGE.
ww OP(C) Nos.295, 296 & 297 of 2022 10 APPENDIX OF OP(C) 295/2022 PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE PLAINT, DATED 31.05.2016 IN ARC 447/16.
EXHIBIT P1(A) A TRUE COPY OF THE MORTGAGE DEED ALLEGED TO BE EXECUTED.
EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT, DATED 04.12.2017.
EXHIBIT P3 A TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT, DATED 19.08.2020. EXHIBIT P3(A) A TRUE COPY OF THE GEHAN NUMBERED AS 981/17 PRODUCED BY THE RESPONDENT BANK.
EXHIBIT P3(B) A TRUE COPY OF THE GEHAN NUMBERED AS 982/17 PRODUCED BY THE RESPONDENT BANK.
EXHIBIT P4 A TRUE COPY OF IA 2185A/2021 ALONG WITH THE AFFIDAVIT FILED IN SUPPORT OF THE SAID APPLICATION.
EXHIBIT P5 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT BANK IN IA 2185A/2021.
EXHIBIT P6 A TRUE COPY OF THE ORDER, DATED 07.09.2021 IN IA 2185A OF 2021. EXHIBIT P7 A TRUE COPY OF THE REVISION PETITION RP 40/2021 IN ARC 447/16.
EXHIBIT P8 A TRUE COPY OF THE COMMON ORDER, DATED 04.01.2022 IS IN RP 40/2021.
OP(C) Nos.295, 296 & 297 of 2022 11 APPENDIX OF OP(C) 296/2022 PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE PLAINT, DATED 31.05.2016 IN ARC 445/16.
EXHIBIT P1(A) A TRUE COPY OF THE MORTGAGE DEED ALLEGED TO BE EXECUTED.
EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT, DATED 04.12.2017.
EXHIBIT P3 A TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT, DATED 19.08.2020. EXHIBIT P3(A) A TRUE COPY OF THE GEHAN NUMBERED AS 981/17 PRODUCED BY THE RESPONDENT BANK.
EXHIBIT P3(B) A TRUE COPY OF THE GEHAN NUMBERED AS 982/17 PRODUCED BY THE RESPONDENT BANK.
EXHIBIT P4 A TRUE COPY OF IA 2185A/2021 ALONG WITH THE AFFIDAVIT FILED IN SUPPORT OF THE SAID APPLICATION.
EXHIBIT P5 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT BANK IN IA 2185A/2021.
EXHIBIT P6 A TRUE COPY OF THE ORDER, DATED 07.09.2021 IN IA 2185A OF 2021. EXHIBIT P7 A TRUE COPY OF THE REVISION PETITION RP 42/2021 IN ARC 445/16.
EXHIBIT P8 A TRUE COPY OF THE COMMON ORDER, DATED 04.01.2022 IS IN RP 42/2021.
OP(C) Nos.295, 296 & 297 of 2022 12 APPENDIX OF OP(C) 297/2022 PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE PLAINT, DATED 31.05.2016 IN ARC 450/16 .
EXHIBIT P1(A) A TRUE COPY OF THE MORTGAGE DEED ALLEGED TO BE EXECUTED.
EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT, DATED 04.12.2017.
EXHIBIT P3 A TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT, DATED 19.08.2020. EXHIBIT P3(A) A TRUE COPY OF THE GEHAN NUMBERED AS 981/17.
EXHIBIT P3(B) A TRUE COPY OF THE GEHAN NUMBERED AS 982/17.
EXHIBIT P4 A TRUE COPY OF IA 2185A/2021 ALONG WITH THE AFFIDAVIT FILED IN SUPPORT OF THE SAID APPLICATION.
EXHIBIT P5 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT BANK IN IA 2185A/2021.
EXHIBIT P6 A TRUE COPY OF THE ORDER, DATED 07.09.2021 IN IA 2185A OF 2021. EXHIBIT P7 A TRUE COPY OF THE REVISION PETITION RP 38/2021 IN ARC 450/16.
EXHIBIT P8 A TRUE COPY OF THE COMMON ORDER, DATED 04.01.2022 IS IN RP 38/2021.