ASSAM STATE COOPERATIVE MARKETING AND CONSUMERS FEDRATION LTD Vs. NATIONAL COOPERATIVE CONSUMER FEDERATION OF INDIA LTD

JUDGEMENT

(1.) Petitioner has filed this petition under section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the arbitral award dated 8.10.2004 passed by the respondent No.2. The said award is ex parte. It is not in dispute that after receipt of the order of appointment and the statement of claims of the respondent No.1, the arbitrator had issued notice to the parties. Petitioner appeared through an advocate on 6.5.2004, but thereafter nobody appeared on behalf of the petitioner and on 9.7.2004 petitioner was proceeded ex parte. Proceedings were thereafter held on various dates, as is clear from the impugned award rendered by the learned arbitrator, and ultimately award dated 8.10.2004 was passed whereby the respondent No.1 herein is awarded a sum of Rs.46,03,582/- and the petitioner is to make the payment of this amount along with interest @ 12% p.a.

(2.) The objection of the petitioner is that there was no jurisdiction with the learned arbitrator to proceed with the matter. It may be noted that the respondent No.1 is a Multi- State Cooperative Society and admittedly the petitioner is a Member/Shareholder of the respondent No.1. Respondent No.1 had made supplies to the petitioner from time to time and according to it as certain payments were not made, the respondent No.1 applied to the Central Registrar for appointment of an arbitrator in terms of Section 84 of the, Multi-State Cooperative Societies Act, 2002 (hereinafter referred to as 'the Act of 2002'). Section 84, inter alia, provides that any dispute between a member, past member or deceased member and the Multi-State Cooperative Society shall be referred to arbitration.

(3.) Learned counsel for the petitioner has raised two submissions in respect of the plea that the dispute could not be referred under section 84 of the Act of 2002. First ground taken is that the petitioner is not a Multi-State Cooperative Society and, therefore, no jurisdiction was conferred upon respondent No.2 in terms of the Act of 2002. This contention is clearly misconceived inasmuch as it is not that the two parties between whom the disputes arise should both be Multi- State Cooperative Societies. As pointed out above, Section 84 categorically states that dispute between a Member and a Multi-State Cooperative Society can be referred to arbitrator. Since respondent No.1 is a Multi- State Cooperative Society, dispute between the respondent No.l and its Member could be the subject matter of arbitration. Respondent No.l had sought the reference by making a categorical statement that the petitioner is a Member of the respondent No.1 society. The petitioner did not file any reply before the learned arbitrator raising any plea to the contrary. On 6.5.2004, petitioner's advocate appeared but thereafter petitioner stopped appearing. The learned arbitrator in the impugned award has stated that after 6.5.2004 also proceedings were held on 16.6.2004 and 9.7.2004 and the petitioner was proceeded ex parte on 9.7.2004. It is clear, therefore, that even when the petitioner did not appear on 16.6.2004, the learned arbitrator adjourned the proceedings to 9.7.2004 and when petitioner failed to appear on that day as well, it was proceeded ex parte. Not only this, the learned arbitrator had been sending the proceedings of each date to the petitioner under certificate of posting. Thus, proceeding dated 9.7.2004 was also sent to the petitioner as per which the petitioner was proceeded ex parte. Even thereafter, no request was made to the arbitrator by the petitioner to recall the order of ex parte proceedings. Proceedings were also held on 4.8.2004 and 3.9.2004 and copy of these proceedings were also sent to the petitioner. Even when the petitioner was receiving the copies of these proceedings, it not only failed to participate in the proceedings, it did not even send a single communication objecting to the jurisdiction of the arbitrator on the ground that the petitioner was not a Member of Multi-State Cooperative Society i.e. respondent No.1. Therefore, making an allegation to this effect for the first time in the present petition would be of no avail to the petitioner.