THANKAPPAN Vs. M T M V CO OPERATIVE SOCIETY

JUDGEMENT

(1.) In this writ petition the prayer is for quashing the originals of Exts. P1 and P4. Ext. P1 is the award passed by the 3rd respondent, the Senior Cooperative Inspector & Arbitrator, and Ext. P4 is the order passed by the 2nd respondent, the Kerala Cooperative Tribunal, Trivandrum, on Ext. P2 petition for condoning the delay in filing the appeal before the Tribunal against Ext. P1 award.

(2.) In Ext. P3 affidavit in support of Ext. P2 petition it is averred inter alia that the impugned order, Ext. P1, was passed on 22 3 1976 and the appeal filed by the petitioner was received by the 2nd respondent, Tribunal, on 21 8 1976. Under S.82 of the Cooperative Societies Act, the appeal ought to have been filed within 60 days from the date of the order, namely, on 25 5 1976. Though prima facie there was a delay of three mouths, the petitioner prayed that in the circumstances stated in the affidavit, the delay in filing the appeal might be condoned. According to the petitioner it was only on 19-6-1976 through the Village Industries Officer, Trichur, as per his letter No. K3/4471/75 dated 12-6-1976, enclosing the gist of the award, that he came to know that an award had already been passed against him. On 21-6-1976 he had applied to the Village Industries Officer, Trichur, for a certified copy of the award. Though that application was received by him on 22-6-1976, instead of sending a copy, what the Village Industries Officer did was to send a letter K3/4471/75C dated 17-7-1976 informing him about the rejection of the copy application for want of proper court fees and adequate copying papers. On 26-7-1976 he sent an application by registered post to the Village Industries Officer for a certified copy of the award, together with the requisite court fee and copying papers. This was received by him on 27-7-1976. The copy of the award was thereafter received by the petitioner on 6-8-1976. He bona fide believed that in calculating the sixty days period, the period required for obtaining the certified copy of the award was to be excluded In Ext. P4 order what the Tribunal stated is as follows: The Tribunal did not accept the version of the petitioner that it was only on 19-6-1976 that the petitioner came to know about the passing of Ext. P1 award on 22-3-1976. If the date of knowledge is the starting point of limitation and if the time taken for obtaining certified copy is excluded in computing the period of limitation, the appeal would be in time. The Tribunal on a perusal of the records, however, found that on 22-3-1976 the petitioner was present before the Arbitrator, and, therefore, concluded that he might have had the knowledge of the passing of the order that day.

(3.) On the question as to whether the starting point of limitation for the filing of the appeal is the date of the passing of the award or the date of the knowledge by the petitioner of the passing of the award, no specific provision in that behalf in the Act or the Rules has been shown to me. As a general principle it could be said that unless the award is passed in the presence of the party, it is only from the date of knowledge by the party of the passing of the award that the period of limitation would run; otherwise disastrous consequences could follow inasmuch as there may be cases of the gist of the award passed by the Arbitrator is not communicated at all, or even if it is communicated, it is done only after the period of limitation is over, thus virtually depriving the aggrieved party of his valuable right of appeal. If, as a matter of fact, the gist of the award is communicated by the Arbitrator to the defendant as required under R.68 of the Rules, it may be that the period of limitation commences from the date of the receipt of it, and the time, if any, taken for obtaining a certified copy could not possibly be excluded. However, in cases where the defendant was not present at the time of the delivery of the award by the Arbitrator, and the gist of the award passed also was not sent to him by the Arbitrator, and the defendant having came to know of the passing of the award from other sources applies for a certified copy of the award for the purpose of filing of the appeal, time taken for obtaining the certified copy of the award also has to be excluded from the period of limitation. In this case the Tribunal found that the petitioner was present on the date of hearing before the Arbitrator. It is not, however, stated to have been recorded that at the time of the delivering of the award the petitioner was present. If the petitioner was present at the time of the delivery of the award that fact would have been recorded, and also, for that reason dispensation of the communication of the gist under R.68 to the petitioner also would have been recorded by the Arbitrator.