P C POULOSE Vs. E P SUKUMARAN NAIR

JUDGEMENT

(1.) The third respondent, the Pindimana Service Cooperative Bank Ltd., No. E-25, which is herein represented by its President, the second respondent, made a claim against the petitioner for a sum of about Rs. 25,000/- on the basis of a promissory note executed by him in favour of the Bank. The claim was referred for arbitration under S.69 of the Kerala Cooperative Societies Act, 1969 to the first respondent, the Circle Officer of Cooperative Societies. The case stood posted to 31-1-1972. When it was taken up for hearing on that date, the second respondent, who was representing the Bank was not present; and there was also no application for adjournment. The petitioner's counsel, who was present, urged for a dismissal of the claim. Accordingly the first respondent dismissed the claim, and passed an award, Ext. P1 dated 31-1-1972, under S.70(3) of the Act. The second respondent on behalf of the Bank made an application to the first respondent to set aside the ex parte award. The application was allowed by the first respondent by its order Ext. P3 dated 7-3-1972. This petition has been filed to quash the above order.

(2.) The only contention urged by the petitioner in support of the relief claimed by him is that the first respondent became functus officio after making the award, Ext. P1, and that he had thereafter no power under the Act or the Rules made thereunder to entertain an application to set aside the award. Counsel for respondents 2 and 3 submitted that the arbitrator has no power to dismiss a claim for default; he is bound to decide the claim on the merits, even if the parties are absent. It was also submitted that if an arbitrator has no power to restore a claim dismissed for default of appearance, it must follow that he has no jurisdiction to dismiss it for default. In support of the second submission, counsel relied on the following passage appearing in the judgment of Velu Pillai, J. in the Full Bench decision of this Court in Kalyani Amma Bhargavi Amma v. Ouseph Varkey ( 1967 KLT 317 .) While dealing with the question whether the Land Tribunal has got the power to set aside an ex parte order dismissing an application for fixation of fair rent under the Kerala Land Reforms Act, 1963, and restore the same for hearing, the learned Judge stated:

(3.) In support of his contention that, in the absence of any statutory power the arbitrator has no jurisdiction to decide a case ex parte, counsel cited a Full Bench decision of the Madras High Court in Chinnappan v. I .T. Commr., ( AIR 1965 Mad. 62 ). That case related to the jurisdiction of the Appellate Tribunal under the Indian Income Tax Act 1922 to dismiss an appeal for default of appearance of the appellant. The learned Chief Justice, who delivered the judgment of the Full Bench stated: