Judgment:
$~10 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 11223/2015 & CM No.29240/2015 1. RAJ PAL & ANR ........ Petitioner
s Through: Mr.Vivek Sharma, Advocate. versus THE DELHI STATE COOPERATIVE BANK LTD. & ANR ........ RESPONDENTS
Through: Mr. S.K. Kaushik, Advocate for R-1. Mr. S.C. Singhal, Advocate for R-2. CORAM: HON'BLE MS. JUSTICE HIMA KOHLI HON'BLE MS. JUSTICE DEEPA SHARMA % The petitioner is aggrieved by an order dated 14.09.2015 passed by the ORDER
1307.2017 Delhi Cooperative Tribunal in Appeal No.41/2013/DCT filed by them against an Award made on 03.02.2002, by the learned Arbitrator appointed by the Registrar of Cooperative Societies to adjudicate upon a petition filed by respondent No.1/Delhi State Corporation Bank Limited claiming inter alia recovery of a sum of Rs.4,54,084 with interest up to 30.06.2001, towards a loan extended to the respondent No.2, in respect whereof, the petitioners had stood as guarantors.
2. We may note that the Award dated 03.02.2002 was an ex-parte award whereunder the petitioners and the respondent No.2 were jointly and severely directed to pay a sum of Rs. 4,84,990 to the respondent no.1/Bank, together with future interest etc.
3. It is the version of the petitioners that they were never served with the notices issued by the learned Arbitrator due to which they could not appear before him and they had gained knowledge of the said Award only in January 2013, when a notice of recovery was served on them.
4. The above submission is however disputed by learned counsel for respondent No.1/Bank who states that the petitioners had appeared the Assistant Collector in the year 2012, where they had undertaken to clear the outstanding amount, but had failed to do so.
5. Aggrieved by the aforesaid action taken by the respondent no.1/Bank of seeking to recover amounts allegedly due under the Award before the Collector, the petitioners had filed a petition in this Court registered as W.P.(C) No.1672/2013. Vide order dated 12.03.2013, the said petition was dismissed by the Division Bench with liberty granted to the petitioners to seek their remedy under the Delhi Cooperative Societies Act, 1972. Thereafter, the petitioners had approached the Delhi Cooperative Societies Tribunal by filing an appeal which was dismissed vide order dated 14.09.2015, impugned in this petition.
6. We may note that while passing the impugned order, the learned Tribunal did not examine the aspect as to whether the petitioners and the respondent no.2/principal borrower had in fact been served with the notices before the learned Arbitrator.
7. Mr. S.C. Singhal, learned counsel for the respondent No.2 states, on instructions, that the respondent No.2 had made payments of EMI’s to an employee of respondent No.1/Bank, namely, Kaushal which have not been accounted for and the respondent No.2 has in his power and possession, the original receipts which would amply demonstrate the said fact.
8. Learned counsel for the respondent no.1/Bank disputes the said submission and states that no amounts whatsoever have been received by the Bank from the respondent no.2.
9. In the course of arguments, learned counsels for the parties jointly state that instead of this Court remanding the matter back to the Tribunal for a fresh decision, it would be appropriate if both, the Award dated 03.02.2002 and the order dated 14.09.2015 passed by the Tribunal are set aside and the Registrar of Cooperative Societies is directed to appoint an Arbitrator to adjudicate the disputes between the parties afresh as all the parties are now present before this Court.
10. We are of the opinion that the aforesaid course of action would bring a closure to the issue with regard to service of the parties which has been lingering for the past decade and a half and an order on merits can then be passed once all the parties are present before the Arbitrator.
11. Accordingly, with the consent of the parties, the impugned order dated 14.09.2015 passed by the Tribunal and the Award dated 03.02.2002 are quashed and set aside. The present petition is disposed of with directions issued to the Registrar of Cooperative Societies to appoint an Arbitrator to adjudicate the disputes raised by the respondent no.1/Bank afresh. To ensure that all the parties are present before the Arbitrator, who shall be appointed by the RCS, it is directed that necessary orders in this regard are passed by the RCS within four weeks from today under intimation to the counsels for the parties before us who shall make sure that they are present/represented before the Arbitrator for a fresh adjudication of the petition filed by the respondent No.1/Bank.
12. The learned Arbitrator is directed to ensure that the Award is made within four months from the date of completion of pleadings. Needless to state that if any of the parties is aggrieved by the Award made, they shall be entitled to seek their remedies as prescribed in the Statute. In the meantime, the amounts deposited by the petitioners in this Court shall be retained for being released along with the interest accrued thereon in favour of the party who ultimately succeeds before the learned Arbitrator.
13. A copy of this order shall be forwarded by the Registry forthwith to the RCS for perusal and compliance along with the names, addresses and phone numbers of the counsels appearing for the parties in the present petition. HIMA KOHLI, J DEEPA SHARMA, J JULY13 2017 ss