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Judgment
Shivaraj Patil, J.—The facts of the case briefly stated are the following:
The petitioner borrowed a sum of Rs. 16,000 from the third respondent Co-operative Society to construct a house by mortgaging the property.
When she failed to repay the amount of loan with interest in installments, an Arbitration Suit was filed against her for recovery of a sum of Rs.
26,301.24 p. An ex parte award/decree was passed against the petitioner, when the petitioner failed to appear before the Arbitrator, in spite of
service of summons. The third respondent took up the execution proceedings in E.P. No. 35/82-83 and contained an order for auctioning the
house for realisation of the the amount due under the award. The petitioner filed an Appeal in C.M.A. No. 52 of 1985 before the first respondent,
challenging the proposed auction sale. The said Appeal also was dismissed on 12.2.1986. Hence, this Writ Petition is filed contending that as
required under Rule 56(6) of the Tamil Nadu Co-operative Societies Rules, 1963 (hereinafter referred to as the Rules), copy of the award was not
supplied free of cost to the petitioner. In the absence of the supply of such copy of the award, no appeal could be filed and hence the award
cannot be executed, more so when it was passed without hearing her; so long as the copy of the award of the Arbitrator was not furnished the
subsequent execution proceedings were unwarranted and illegal. The petitioner in this writ petition has prayed for quashing the order, dated
12.2.1986 passed by the first respondent in C.M.A. No. 52 of 1985.
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 ward
amount, which would exceed Rs. 31,500as 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, C.M.A. 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 226of 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 respondent raised a dispute in Claim No. 232/81-82 u/s 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 p. 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 filed C.E.P. 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 C.M.A. No. 52 of
1985 before the first respondent Tribunal, challenging the order passed in C.E.P. 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 respondent; it is not open to her for the first time to raise the same in this writ petition. It is too late for the petitioner
to contend that the award passed by the Arbitrator is not binding or 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 petitioner; the amount
due under the award was Rs. 31,500 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.
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, Madras Vs. M.M. Rubber and Co., Tamil Nadu, , in particular, he drew my attention to
paragraph 13 of the said decision. The said paragraph reads:
So far as the party who is affected by the order or decision for seeking his remedies against the same, he should be made aware of passing such
order. Therefore, courts have uniformly laid down as a rule of law that for seeking the remedy the limitation starts from the date on which the order
was communicated to him or the date on which it was pronounced or published under such circumstances that the parties affected by it have a
reasonable opportunity of knowing of passing of the order and what it contains. The knowledge of the party affected by such a decision, either
actual or constructive is thus an essential element which must be satisfied before the decision can be said to have been concluded and binding on
him. Otherwise, the party affected by it will have no means of obeying the order or acting in conformity with it or of appealing against it or
otherwise having it set. This is based upon, as observed by Rajamannar, C.J., in O.A.O.A.M. Muthiah Chettiar Vs. The Comr. of Income Tax, ,
a salutary and just principle"". The appreciation of this rule so far as the aggrieved party is concerned is not dependent on the provisions of the
particular statute, but is so under the general law.
Mr. E. Padmanabhan, learned Counsel representing the third respondent made his submissions in support and justification of the impugned
order. He strongly contended that the petitioner having not challenged the award dated 7.10.1982 cannot find fault with the same in an execution
proceeding, more so, when she herself accepting the liability under the award remitted a sum of Rs. 4,000 on 25.5.1984, while assuring to pay the
remaining amount by 25.5.1984, even after passing the impugned order by the first respondent on 12.2.1986, the petitioner has filed this writ
petition after a period of fourteen months without any justification for the delay. According to the learned Counsel, the petitioner is only interested
in delaying the recovery of the amount due to the third respondent under the award. Having regard to the facts and circumstances and the conduct
of the petitioner, this writ petition is devoid of any merit and as such same is liable to be dismissed.
I have carefully considered the above submissions made by learned Counsel for the parties. Whether the non-supply copy of the award free of
cost to the petitioner under Rule 56(6) of the Rules wipes away the award made by Competent Authority or makes it non-existent and thereby
renders it unenforcable is the only point that arises for consideration. The undisputed facts are that the petitioner borrowed the loan amount from
the third respondent Society by mortgaging the property. When she failed to repay the loan amount, the third respondent Society raised Arbitration
dispute before the second respondent in Claim No. 232/81 -82; the second respondent Arbitrator passed an award in a sum of Rs. 24,301.74
having been satisfied that the summons were duly served on the petitioner. The said award remained unchallenged even as on the date of the filing
of the writ petition. The mortgaged property was brought to sale on 25.5.1984. The petitioner paid a sum of Rs. 4,000 and got the sale postponed
with an assurance to pay the remaining due amount under the award by 25.6.1984. Since the petitioner did not pay the remaining amount, as
assured, the property was brought to sale for the second time. It was only then the petitioner filed an appeal in C.M.A. No. 52 of 1985 challenging
the execution proceedings, before the first respondent. The first respondent dismissed the Appeal on 12.2.1986. Even after coming to know of the
passing of the award, at least on 25.5.1984, the petitioner could have filed an Appeal challenging the award by taking a copy of the award.
Admittedly, that was not done. In the back-drop of these facts, the contention of learned Counsel for the petition has to be considered. The facts
of the case in Collector of Central Excise, Madras Vs. M.M. Rubber and Co., Tamil Nadu, , were that the Collector of Central Excise, as an
adjudicating authority had held that the demand from the respondent towards excise duty was barred by limitation and dropped all further
proceedings. The copy of the said order was despatched to the respondent on 21.12.1984. The Central Board of Excise and Customs, after
consideration of the said order directed the Collector of Central Excise, Madras to file an appeal to the Customs, Excise and Gold (Control)
Appellate Tribunal, New Delhi. Before the Tribunal, the respondent urged that the relevant date of the Collector''s order for the purpose of Sub-
section (3) of Section 35-E of the Central Excise and Salt Act, 1944 should be taken as 28.11.1984 and if that be so, the appeal filed was beyond
the period of one year from the date of the decision of the adjudicating authority. The date on which the copy of the order was received by the
respondent viz. 21.12.1984, was not relevant for the purpose of reckoning the period of limitation in the case of appeal filed by the Collector. As
can be seen from the very first paragraph of the said judgment, the short question of law that arose for consideration was as to what was the
relevant date for the purpose of calculation of the period of one year, as provided under Sub-section (i) of Section 35-E of the Central Excise and
Salt Act, 1944. A careful reading of paragraph 13 of the said Judgment (extracted above) clearly shows that the main consideration was with
reference to the starting date of period of limitation for the purpose of filing an appeal. Learned Counsel for the petitioner was laying emphasis on
the lines underlined by me in the said paragraph. The said paragraph, if read in its entirety and in the context of facts of that case, does not support
the case of the petitioner to say that unless copy of the award was supplied free of cost to the petitioner it is not binding and not conclusive so as to
execute the award. Paragraph 18 of the said judgment clarifies the position further. The said paragraph (18) reads thus:
Thus, if the intention or design of the statutory provision was to protect the interest of the person adversely affected, by providing a remedy against
the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as commencing from the date of
communication of the order. But if it is a limitation for a competent authority to make an order, the date of exercise of that power and in the case of
exercise of suo mom power over the subordinate authorities'' orders, the date on which such power was exercised by making an order are the
relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the Government is bound by the
proceedings of its officers but persons affected are not concluded by the decision.
In same case the Supreme Court relied on the decision of this Court in O.A.O.A.M. Muthiah Chettiar Vs. The Comr. of Income Tax, , wherein
the applicant/assessee filed an application before the Commissioner of Income Tax u/s 33-A(2) of the Income Tax (1922) for revision of the order
dated 18.2.1949. The said application was rejected in limine, as barred by time. According to the petitioner, the order sought to be revised was
received by him only on 25.2.1948. Therefore, he filed a writ petition, seeking a writ of mandamus in this Court to the Commissioner of Income
Tax, Madras, directing him to entertain his application and to dispose of it in accordance with law contending that the application filed was well
within time from the dale of receipt of the copy of the assessment order by him. The only question that arose for consideration was whether the one
year was to be computed from the date when the order was signed by the Income Tax Officer or from the date when it was communicated to the
petitioner. In paragraph 3 of the said decision, it is stated that if a person is given a right to resort to the remedy to get rid of an adverse order
within a prescribed time, limitation should not be computed from a date earlier than that on which the party aggrieved actually knew of the order or
had an opportunity of knowing the order.
In the decision reported in The liquidator and Co-operative Sub-Registrar (Stores) P-2076 Melapalayam Nehru Multi-Purpose Co-operative
Society Vs. M.S. Sahul Hameed and Others, , this Court has stated that where an order is passed by a statutory authority of which no notice has
been given to the party affected, he must come to know of it so as to enable him to take the appropriate proceedings to vindicate his rights and
held that the limitation must definitely run only from the date of knowledge of the said order by the party either actually or constructively. In yet
another decision in Ramalakshmi Animal v. The Revenue Divisional Officer 1985 W.L.R. 504, a Division Bench of this Court has stated that u/s
18(2) of the Land Acquisition Act, a claimant should intimate the Land Acquisition Officer for reference to court within a period of six weeks from
the date of receipt of a copy of the notice from the Collector u/s 12(2) of the Land Acquisition Act. The claimant was not admittedly present, when
the award was passed. The notice u/s 12(2) of the Land Acquisition Act must be accompanied by a copy of the award, if it is to be effective so as
to enable the claimant to decide the further course of action in the matter of seeking reference u/s 18 of the Land Acquisition Act. Thus, all the
aforementioned decisions deal with the starting point of the period of limitation with reference to the orders passed by the authorities for the
purpose of affected party to challenge the adverse orders before the appropriate forum. The underlying principle is that the parties must know of
the passing of the order to them either actually or constructively so that they can move for the remedies against the orders that affect them. None of
these decisions state or indicate that if the copy of the order is not furnished or communicated, the order itself becomes void, illegal or no-est or
unenforceable. The observation in paragraph 13 of the decision in Collector of Central Excise, Madras Vs. M.M. Rubber and Co., Tamil Nadu, is
to the effect that the decision becomes concluded and binding on a party, when he comes to know about it either actually or constructively. But this
observation cannot be read and understood in, isolation. The observation that the decision becomes binding and conclusive is in the context that a
party against whom adverse orders are passed should come to know about it either actually or constructively and having come to know about it, if
he does not challenge such an order before the appropriate forum or superior Court, as the case may be, it becomes binding and conclusive.
I find considerable difficulty in accepting the contention of the learned Counsel for the petitioner to go to the extent of saying that on account of
the non supply of free copy of the award, the execution proceedings are vitiated or the award becomes unenforcable, when the award has become
otherwise final. The decision cited as a precedent must be understood in the context of and in relation to the facts of the case, the questions that
came up for consideration and the conclusions reached thereon.
In view of what is stated above, I hold that the non-supply of copy of the award free of cost does not make the award unenforceable. Even on
the admitted facts of this case, narrated above, it is clear that the petitioner did come to know of the award atleast when the property was brought
to auction sale on 25.5.1984, but even thereafter, she did not challenge the award, but she has challenged only the execution proceedings and that
too, when the property was directed to be sold for the second time. Further the petitioner having paid a sum of Rs. 4,000 on 25.5.1984 in partial
satisfaction of the said award cannot be allowed to challenge the execution proceedings. Thus, the petitioner in this case had knowledge of passing
the award actually and constructively. Hence, the said award is binding and conclusive even in terms of paragraph 13 of the aforementioned
Judgment of the Supreme Court. Thus, viewed from any angle, I do not find any merit in this writ petition.
In the result, for the reasons stated and discussions made above, this writ petition is liable to be dismissed. Accordingly, this writ petition is
dismissed with no order as to costs.