Madras High Court
R. Pounthai, Wife Of G. Rajaram vs The Co-Operative Tribunal (Special ... on 29 July, 1994
Equivalent citations: (1994)2MLJ424
Author: Shivaraj Patil
Bench: Shivaraj Patil
ORDER Shivaraj Patil, J.
1. The facts of the case briefly stated are the following:
The petitioner borrowed a sum of Rs. 16,000 from the third respondent Co-operative Society to construct a house by mortgaging the property. When she failed to repay the amount of loan with interest in installments, an Arbitration Suit was filed against her for recovery of a sum of Rs. 26,301.24 p. An ex parte award/decree was passed against the petitioner, when the petitioner failed to appear before the Arbitrator, in spite of service of summons. The third respondent took up the execution proceedings in E.P. No. 35/82-83 and contained an order for auctioning the house for realisation of the the amount due under the award. The petitioner filed an Appeal in C.M.A. No. 52 of 1985 before the first respondent, challenging the proposed auction sale. The said Appeal also was dismissed on 12.2.1986. Hence, this Writ Petition is filed contending that as required under Rule 56(6) of the Tamil Nadu Co-operative Societies Rules, 1963 (hereinafter referred to as the Rules), copy of the award was not supplied free of cost to the petitioner. In the absence of the supply of such copy of the award, no appeal could be filed and hence the award cannot be executed, more so when it was passed without hearing her; so long as the copy of the award of the Arbitrator was not furnished the subsequent execution proceedings were unwarranted and illegal. The petitioner in this writ petition has prayed for quashing the order, dated 12.2.1986 passed by the first respondent in C.M.A. No. 52 of 1985.
2. The case of the third respondent, as can be gathered from the affidavit filed in support of Writ Miscellaneous Petition No. 11182 of 1987 is that there is absolutely no merit in the writ petition and the petitioner has abused the process of the court with a view to delay the recovery of the ward amount, which would exceed Rs. 31,500as on date. It is the further case of the third respondent that the writ petition filed is highly belated; the award was passed as early as on 7.10.1982 by the Deputy Registrar of Co-operative Societies, the second respondent herein in Claim No. 232/81-82. The first respondent tribunal dismissed the appeal, C.M.A. No. 52 of 1985 filed by the petitioner on 12.2.1986. The petitioner has filed the writ petition, after a lapse of fourteen months and that the petitioner has not come to the Court with clean hands invoking jurisdiction under Article 226of the Constitution of India. The petitioner availed of the loan of Rs. 16,000 as early as on 11.4.1974 by executing a mortgage deed for the purpose of construction of her house. She was highly irregular in the payment of monthly instalments. When the petitioner inspite of several notices failed to repay the amount, the third respondent raised a dispute in Claim No. 232/81-82 under Section 73 of the Tamil Nadu Co-operative Societies Act, 1961 on the file of the second respondent; despite service of notice, the petitioner did not appear before the second respondent. The second respondent having been satisfied with the service of notice on the petitioner passed an award directing her to pay a sum of Rs. 24,301.74 p. with interest thereon at 12 per cent per annum from the date of award; even thereafter inspite of demand, when the award amount was not paid the third respondent filed C.E.P. No. 35/82-83 on the file of the second respondent for realisation of the award amount with interest. The sale Officer directed sale of the property on 25.5.1984. The petitioner accepting the liability under the award remitted a sum of Rs. 4,000 on 25.5.1984 and secured adjournment of the sale, assuring to pay the remaining amount by 25.6.1984. Since the amount was not paid as assured, auction was directed to be held once again. It is against this order directing auction sale for the second time, the petitioner filed an appeal in C.M.A. No. 52 of 1985 before the first respondent Tribunal, challenging the order passed in C.E.P. No. 35/82-83. Before the Tribunal, the petitioner sought to challenge the award indirectly contending that before passing award no notice had been served on her and that no opportunity was given to her. The first respondent, having considered the material before it, rejected all the contentions of the petitioner and dismissed the appeal. It is further submitted that the petitioner having not raised the contention that because of non-supply of the copy of the award the execution proceedings could not be taken up before the first respondent; it is not open to her for the first time to raise the same in this writ petition. It is too late for the petitioner to contend that the award passed by the Arbitrator is not binding or invalid. In other words, it is not open to her at this stage to challenge the award passed by the second respondent. It is asserted that the copy of the award had been sent to the petitioner and factually also, the third respondent had called upon the petitioner to remit the award amount. The petitioner having come to know about it has also paid a sum of Rs. 4,000 on 25.5.1984 and got the sale postponed, undertaking to pay the remaining amount by 25.6.1984. This being the position, the petitioner is estopped from raising the contentions, challenging the award. Having kept quiet for more than four years, the petitioner is trying to challenge the award in the execution proceedings, which is not permissible in law. According to the third respondent all is not well with the petitioner; the amount due under the award was Rs. 31,500 by June, 1987 itself. The sole intention of the petitioner appears to be only to delay the recovery of the award amount. Thus, on these grounds, the third respondent sought for the dismissal of this writ petition.
3. I have heard the learned Counsel for the parties. Mr. N. Ganapathy, learned Counsel appearing for the petitioner urged that in the absence of supply of copy of the award of the arbitrator free of cost to the petitioner, the award is not conclusive and binding on the petitioner so as to enforce or execute it against her. This is the only point urged. In support of this submission, learned Counsel placed reliance on the decision of the Supreme Court in the case of Collector of Central Excise v. M.M. Rubber Co. , in particular, he drew my attention to paragraph 13 of the said decision. The said paragraph reads:
So far as the party who is affected by the order or decision for seeking his remedies against the same, he should be made aware of passing such order. Therefore, courts have uniformly laid down as a rule of law that for seeking the remedy the limitation starts from the date on which the order was communicated to him or the date on which it was pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of knowing of passing of the order and what it contains. The knowledge of the party affected by such a decision, either actual or constructive is thus an essential element which must be satisfied before the decision can be said to have been concluded and binding on him. Otherwise, the party affected by it will have no means of obeying the order or acting in conformity with it or of appealing against it or otherwise having it set. This is based upon, as observed by Rajamannar, C.J., in Muthia Chettiar v. Commissioner of Income Tax (1951) 1 M.L.J. 417 : I.L.R. 1951 Mad. 815 : 64 L.W. 270 : 19 I.T.R. 402, "a salutary and just principle". The appreciation of this rule so far as the aggrieved party is concerned is not dependent on the provisions of the particular statute, but is so under the general law.
4. Mr. E. Padmanabhan, learned Counsel representing the third respondent made his submissions in support and justification of the impugned order. He strongly contended that the petitioner having not challenged the award dated 7.10.1982 cannot find fault with the same in an execution proceeding, more so, when she herself accepting the liability under the award remitted a sum of Rs. 4,000 on 25.5.1984, while assuring to pay the remaining amount by 25.5.1984, even after passing the impugned order by the first respondent on 12.2.1986, the petitioner has filed this writ petition after a period of fourteen months without any justification for the delay. According to the learned Counsel, the petitioner is only interested in delaying the recovery of the amount due to the third respondent under the award. Having regard to the facts and circumstances and the conduct of the petitioner, this writ petition is devoid of any merit and as such same is liable to be dismissed.
5. I have carefully considered the above submissions made by learned Counsel for the parties. Whether the non-supply copy of the award free of cost to the petitioner under Rule 56(6) of the Rules wipes away the award made by Competent Authority or makes it non-existent and thereby renders it unenforcable is the only point that arises for consideration. The undisputed facts are that the petitioner borrowed the loan amount from the third respondent Society by mortgaging the property. When she failed to repay the loan amount, the third respondent Society raised Arbitration dispute before the second respondent in Claim No. 232/81 -82; the second respondent Arbitrator passed an award in a sum of Rs. 24,301.74 having been satisfied that the summons were duly served on the petitioner. The said award remained unchallenged even as on the date of the filing of the writ petition. The mortgaged property was brought to sale on 25.5.1984. The petitioner paid a sum of Rs. 4,000 and got the sale postponed with an assurance to pay the remaining due amount under the award by 25.6.1984. Since the petitioner did not pay the remaining amount, as assured, the property was brought to sale for the second time. It was only then the petitioner filed an appeal in C.M.A. No. 52 of 1985 challenging the execution proceedings, before the first respondent. The first respondent dismissed the Appeal on 12.2.1986. Even after coming to know of the passing of the award, at least on 25.5.1984, the petitioner could have filed an Appeal challenging the award by taking a copy of the award. Admittedly, that was not done. In the back-drop of these facts, the contention of learned Counsel for the petition has to be considered. The facts of the case in Collector of Central Excise v. M.M. Rubber Co. , were that the Collector of Central Excise, as an adjudicating authority had held that the demand from the respondent towards excise duty was barred by limitation and dropped all further proceedings. The copy of the said order was despatched to the respondent on 21.12.1984. The Central Board of Excise and Customs, after consideration of the said order directed the Collector of Central Excise, Madras to file an appeal to the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi. Before the Tribunal, the respondent urged that the relevant date of the Collector's order for the purpose of Sub-section (3) of Section 35-E of the Central Excise and Salt Act, 1944 should be taken as 28.11.1984 and if that be so, the appeal filed was beyond the period of one year from the date of the decision of the adjudicating authority. The date on which the copy of the order was received by the respondent viz. 21.12.1984, was not relevant for the purpose of reckoning the period of limitation in the case of appeal filed by the Collector. As can be seen from the very first paragraph of the said judgment, the short question of law that arose for consideration was as to what was the relevant date for the purpose of calculation of the period of one year, as provided under Sub-section (i) of Section 35-E of the Central Excise and Salt Act, 1944. A careful reading of paragraph 13 of the said Judgment (extracted above) clearly shows that the main consideration was with reference to the starting date of period of limitation for the purpose of filing an appeal. Learned Counsel for the petitioner was laying emphasis on the lines underlined by me in the said paragraph. The said paragraph, if read in its entirety and in the context of facts of that case, does not support the case of the petitioner to say that unless copy of the award was supplied free of cost to the petitioner it is not binding and not conclusive so as to execute the award. Paragraph 18 of the said judgment clarifies the position further. The said paragraph (18) reads thus:
Thus, if the intention or design of the statutory provision was to protect the interest of the person adversely affected, by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as commencing from the date of communication of the order. But if it is a limitation for a competent authority to make an order, the date of exercise of that power and in the case of exercise of suo mom power over the subordinate authorities' orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the Government is bound by the proceedings of its officers but persons affected are not concluded by the decision.
In same case the Supreme Court relied on the decision of this Court in Muthia Cheuiar v. Commissioner of Income Tax (1951) 1 M.L.J. 417 : 1.L.R. 1951 Mad. 815 : 1951 M.W.N. 257 : 64 L.W. 270 : 19 I.T.R. 402, wherein the applicant/assessee filed an application before the Commissioner of Income Tax under Section 33-A(2) of the Income Tax (1922) for revision of the order dated 18.2.1949. The said application was rejected in limine, as barred by time. According to the petitioner, the order sought to be revised was received by him only on 25.2.1948. Therefore, he filed a writ petition, seeking a writ of mandamus in this Court to the Commissioner of Income Tax, Madras, directing him to entertain his application and to dispose of it in accordance with law contending that the application filed was well within time from the dale of receipt of the copy of the assessment order by him. The only question that arose for consideration was whether the one year was to be computed from the date when the order was signed by the Income Tax Officer or from the date when it was communicated to the petitioner. In paragraph 3 of the said decision, it is stated that if a person is given a right to resort to the remedy to get rid of an adverse order within a prescribed time, limitation should not be computed from a date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order.
6. In the decision reported in Liquidator and Cooperative Sub-Registrar v. Sahul Earned , this Court has stated that where an order is passed by a statutory authority of which no notice has been given to the party affected, he must come to know of it so as to enable him to take the appropriate proceedings to vindicate his rights and held that the limitation must definitely run only from the date of knowledge of the said order by the party either actually or constructively. In yet another decision in Ramalakshmi Animal v. The Revenue Divisional Officer 1985 Writ. L.R. 504, a Division Bench of this Court has stated that under Section 18(2) of the Land Acquisition Act, a claimant should intimate the Land Acquisition Officer for reference to court within a period of six weeks from the date of receipt of a copy of the notice from the Collector under Section 12(2) of the Land Acquisition Act. The claimant was not admittedly present, when the award was passed. The notice under Section 12(2) of the Land Acquisition Act must be accompanied by a copy of the award, if it is to be effective so as to enable the claimant to decide the further course of action in the matter of seeking reference under Section 18 of the Land Acquisition Act. Thus, all the aforementioned decisions deal with the starting point of the period of limitation with reference to the orders passed by the authorities for the purpose of affected party to challenge the adverse orders before the appropriate forum. The underlying principle is that the parties must know of the passing of the order to them either actually or constructively so that they can move for the remedies against the orders that affect them. None of these decisions state or indicate that if the copy of the order is not furnished or communicated, the order itself becomes void, illegal or no-est or unenforceable. The observation in paragraph 13 of the decision in Collector of Central Excise v. M.M. Rubber Co. , supra is to the effect that the decision becomes concluded and binding on a party, when he comes to know about it either actually or constructively. But this observation cannot be read and understood in, isolation. The observation that the decision becomes binding and conclusive is in the context that a party against whom adverse orders are passed should come to know about it either actually or constructively and having come to know about it, if he does not challenge such an order before the appropriate forum or superior Court, as the case may be, it becomes binding and conclusive.
7. I find considerable difficulty in accepting the contention of the learned Counsel for the petitioner to go to the extent of saying that on account of the non supply of free copy of the award, the execution proceedings are vitiated or the award becomes unenforcable, when the award has become otherwise final. The decision cited as a precedent must be understood in the context of and in relation to the facts of the case, the questions that came up for consideration and the conclusions reached thereon.
8. In view of what is stated above, I hold that the non-supply of copy of the award free of cost does not make the award unenforceable. Even on the admitted facts of this case, narrated above, it is clear that the petitioner did come to know of the award atleast when the property was brought to auction sale on 25.5.1984, but even thereafter, she did not challenge the award, but she has challenged only the execution proceedings and that too, when the property was directed to be sold for the second time. Further the petitioner having paid a sum of Rs. 4,000 on 25.5.1984 in partial satisfaction of the said award cannot be allowed to challenge the execution proceedings. Thus, the petitioner in this case had knowledge of passing the award actually and constructively. Hence, the said award is binding and conclusive even in terms of paragraph 13 of the aforementioned Judgment of the Supreme Court. Thus, viewed from any angle, I do not find any merit in this writ petition.
9. In the result, for the reasons stated and discussions made above, this writ petition is liable to be dismissed. Accordingly, this writ petition is dismissed with no order as to costs.