In Commissioner Of Income Tax v. Chhabil Das

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY ,THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940 WP(C).No. 31609 of 2018 PETITIONER: ABDUL RAHIMAN,AGED 42 YEARS,S/O.HAMSA, EDAKUDAMBAN, PALLIPURAM VALLIKKAPATTA P.O., MANKADA, MALAPPURAM DISTRICT BY ADVS.SRI.K.MOHANAKANNANSMT.A.R.PRAVITHASRI.H.PRAVEEN (KOTTARAKARA)SRI.T.S.NEJIMUDDINSMT.T.V.NEEMA RESPONDENTS: 1THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,PERINTHALMANNA-679322.2MAKARAPARAMBU SERVICE CO-OPERATIVE BANK,NO.P.576, MAKKARAPARAMBU P.O., MALAPPURAM DISTRICT-676505 REPRESENTED BY ITS SECRETARY. OTHER PRESENT:R1SRI K.P.HARISH,SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 27.09.2018, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: JUDGMENT The petitioner, who availed an overdraftfacility from the 2[nd] respondent Bank for a sum ofRs.10,00,000/- on 03.06.2015, by mortgaging hisproperty, has filed this writ petition under Article226 of the Constitution of India, seeking a writ ofcertiorari to quash Ext.P1 award dated 28.09.2017 ofthe 1[st] respondent in ARC No.813 of 2016. Thepetitioner has also sought for a writ of mandamus(wrongly stated as writ of certiorari) commandingthe 2[nd] respondent to extend the benefit of One TimeSettlement Scheme to discharge his liability coveredby Ext.P1 award, within a time frame to be fixed bythis Court and to defer recovery proceedings tillthen. 2.The pleadings and materials on record wouldshow that, after availing loan for Rs.10,00,000/-from the 2[nd]respondent Bank, the petitionerdefaulted repayment. In the arbitration proceedingsinitiated against the petitioner in ARC No.813 of2016, the Arbitrator has passed Ext.P1 award, whichis one dated 28.09.2017, whereby the 2[nd] respondent Bank is permitted to realise a sum of Rs.11,94,709/-from the petitioner together with interest. Ext.P1award passed by the Arbitrator is one issued inexercise of his powers under Section 70 of theKerala Co-operative Societies Act. If the petitionerwas feeling aggrieved by Ext.P1 award, he could havefiled an appeal before the Co-operative Tribunal,invoking the provisions under Section 82(1)(e) ofthe said Act. 3.Now the petitioner wants to settle the duescovered by Ext.P1 award by availing One TimeSettlement facility. The petitioner could not pointout any such One Time Settlement Scheme, which is inforce. The petitioner has also no case that he is aperson affected by the recent flood. On a query madeby this Court, the learned counsel for thepetitioner would submit that the petitioner is notin a position to repay the total dues in monthlyinstalments, within a reasonable time. 4. In Commissioner of Income Tax V. Chhabil Das Agarwal [(2014) 1 SCC 603],the Apex Court reiterated that, non-entertainment of a writ petition under Article 226 of the Constitution ofIndia when an efficacious alternative remedy isavailable is a rule of self-imposed limitation. Itis essentially a rule of policy, convenience anddiscretion rather than a rule of law. Undoubtedly,it is within the discretion of the High Court togrant relief under Article 226 of the Constitutionof India, despite the existence of alternativeremedy. However, High Court must not interfere ifthere is an adequate efficacious alternative remedyavailable to the petitioner and he has approachedthe High Court without availing the same, unless hehas made out an exceptional case warranting suchinterference or there exists sufficient ground toinvoke the extraordinary jurisdiction under Article226. 5. In Pavithran V. State of Kerala (2009 (4) KHC 4), a Full Bench of this Court held that,whenever an adverse order is passed against aperson, unless the same is challenged before theappropriate forum, within the prescribed time limit,the said order will become final. 5. In Pavithran V. State of Kerala (2009 (4) KHC 4), a Full Bench of this Court held that,whenever an adverse order is passed against aperson, unless the same is challenged before theappropriate forum, within the prescribed time limit,the said order will become final. Viewed in the light of the law laid down in thedecisions referred to supra, conclusion isirresistible that the beated challenge made in thiswrit petition filed on 25.09.2018 against Ext.P1award dated 28.09.2017 cannot be entertained underArticle 226 of the Constitution of India. In suchcircumstances, without prejudice to the right, ifany, of the petitioner to challenge Ext.P1 awardbefore the Co-operative Tribunal, invoking theprovisions under Section 82(1)(e) of the Kerala Co-operative Societies Act, this writ petition isdismissed. Sd/- ANIL K.NARENDRAN JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1TRUE COPY OF THE AWARD PASSED BY THE 1ST RESPONDENT U/S.70 OF THE CO-OPERATIVE SOCIETIES ACT IN ARC 813/2016DATED 28/9/2017. RESPONDENTS' EXHIBITS:NIL //TRUE COPY//P.A. TO JUDGE bpr