R POUNTHAI Vs. CO OPERATIVE TRIBUNAL MADURAI

JUDGEMENT

(1.) The facts of the case briefly stated are the following :

(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 award amount, which would exceed Rs- 31,500 as 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, CMA 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 226 of 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 respordent raised a dispute in Claim No. 232/81-82 under Seclion 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 paise 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 tiled CEP 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 CMA No. 52 of 1985 before the first respondent Tribunal, challenging the order passed in CEP 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 responden t; it is not open to her for the first time to raise the same in this writ petilion. It is too late for the petitioner to contend that the award passed by the Arbitrator is not binding on 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 petitioners the amount due under the award was Rs. 31,5000 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/s. M. M. Rubber Company. AIR 1991 SC 2141, in particular, he drew my attention to paragraph 13 of the said decision. The said paragraph reads :