PAUL Vs. ASST REGISTRAR

JUDGEMENT

(1.) The main question involved in this Writ Petition is whether the Registrar settling a dispute under R.67 of the Kerala Cooperative Societies Rules, 1969 (for short 'the Rule') has power to set aside an ex parte order passed by him in the proceeding.

(2.) The 1st respondent issued Ext. P1 demand notice to the petitioners under R.71 of the Rules calling upon them to pay an amount of Rs. 22,943/- due to the Society. On enquiry they came to understand that the 2nd respondent, the Varantharapilly Service Cooperative Bank limited, filed a claim petition against the petitioners before the 1st respondent as ARC 611/91 for an amount of Rs. 17,645/- with 18% interest and that on 30.5.1992 the first respondent declared them ex parte. The case of the petitioners is that they did not receive any summons from the first respondent for appearance. In the aforesaid situation, their counsel filed two petitions before the 1st respondent, one for setting aside the ex parte award and the other for staying the execution of the said award. Exts. P2 and P3 are the copies of those petitions filed on behalf of the petitioners. Though they were presented before the 1st respondent he refused to accept them. According to the first respondent he has no authority or power to set aside the ex parte order passed by him even assuming there is material irregularity in passing the award. Ext. P4 is the affidavit prepared by the counsel who appeared before the 1st respondent narrating the stand taken by him. In the aforesaid background the petitioners came before this Court with the present Writ Petition.

(3.) The contentions have been urged before this Court by the learned counsel appearing for the petitioners. Firstly it is argued that the 1st respondent failed to communicate the gist of the award to the petitioners before initiating revenue recovery proceedings. The question is whether such a requirement is mandatory. R.68 of the Rules inter alia provides that a gist of the award shall also be communicated by the Registrar to the defendants by the post, in case they are not present at the time of delivering the order or decision. The order or decision contemplated under this rule is an ex parte order or decision. The communication of the gist of the order to the defendants is indispensable because if they are aggrieved by such orders, they would be able to find out their remedy only on knowing the nature of the order passed against them. That would otherwise mean an opportunity is given to the defendants to challenge the order passed by the Registrar if they are aggrieved by such orders. When the provision is analysed in this premise, it can only be said that the requirement to communicate the gist of the award to the defendants by the post is mandatory. The complaint of the petitioners that the 1st respondent has violated the mandatory requirement in the present case has not been denied by him. Hence the proceedings for recovery of the amount as per Ext. P1 demand notice is quite unauthorised and illegal.