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Bhaskaran Nair v. Co-Operative Tribunal, Trivandrum

Kerala High Court

Dec 9, 1975

Judgment

Subsequent
References

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Structured Summary of the Provided Opinion

Factual and Procedural Background

The petitioner is the son of Velayudha Kurup, who was a party (counter‑petitioner) to Arbitration Reference No. 57 of 1958 pending before the 2nd respondent (the Deputy Registrar of Co‑operative Societies). Velayudha Kurup died on 20‑6‑1970 while the arbitration was pending. In March 1974 the 3rd respondent (the liquidator) filed a petition to implead five legal representatives of the deceased (the wife, the son and three daughters). The petitioner and the other legal representatives objected, arguing that no application to implead had been made within three months of the death and that, therefore, the arbitration had abated. The 2nd respondent overruled that objection and allowed impleading. The petitioner and other legal representatives sought revision (R.P. No. 19 of 1974) before the 1st respondent (the Cooperative Tribunal). By Ext. P1 dated 13‑9‑1974 the 1st respondent dismissed the revision. The petitioner filed the present original petition challenging Ext. P1.

Legal Issues Presented

Whether an arbitrator under Section 70 of the Kerala Co‑operative Societies Act, 1969 (the Act) has the power to implead the legal representatives of a deceased party in arbitration proceedings conducted under the Act.
If such power exists, whether the legal representatives can be impleaded at any time after the death of the party (i.e., whether limitation rules or a time requirement govern such impleading in these arbitration proceedings).

Arguments of the Parties

Petitioner's Arguments (learned counsel for the petitioner)

The Act and the rules framed thereunder contain no provision that permits impleading of legal representatives in arbitration proceedings before the Registrar/arbitrator; therefore the 2nd respondent had no power to implead.
Impleading of legal representatives is permissible only if the Code of Civil Procedure (CPC) and the Limitation Act, 1963 apply to proceedings under the Act; absent such applicability, impleading is not available.
Even if the CPC and Limitation Act apply, the application to implead must be made within 90 days of the death or within 90 days of coming to know of the death (as argued by counsel). In this case the petition for impleading was filed in March 1974 whereas the death occurred on 20‑6‑1970, so the application was made years later.
Rule 104 (and rule 67 as later referenced) show that a provision for impleading exists for proceedings before the Tribunal but there is no corresponding provision for arbitration proceedings; this absence indicates no power to implead in arbitrations under the Act.
The powers conferred by Sections 77 and 98 on the Registrar do not expressly include power to implead legal representatives.
Even if no specified limitation exists in the Act or rules, impleading must be within a reasonable time; the years‑late impleading in this case was unreasonable and therefore the arbitrator's order is not legal or proper.

Respondent's Arguments (learned Government Pleader / 2nd respondent)

The Act (particularly Sections 69, 77 and 98) and the rules constitute a special enactment for co‑operative societies; the legislature did not intend to make all provisions of the CPC and the Limitation Act applicable to proceedings under the Act.
The provisions of the Limitation Act and CPC are made applicable only to the extent expressly provided by Sections 77 and 98; the Registrar/Arbitrator and other authorities under the Act are not full civil courts but domestic tribunals created by the Act.
If the registrar had no power to implead when a debtor dies pending proceedings, a creditor would be left remediless; therefore the powers to adjudicate claims (Sections 69 and 70) should include the incidental power to implead legal representatives so that recovery can proceed.
The Limitation Act provisions that prescribe time limits for impleading legal representatives cannot be applied to proceedings under the Act unless the Act itself brings them into application.
In support of the limited applicability of the Limitation Act and CPC to tribunals, reliance was placed on judicial authority (Jokkim Fernandez v. Amina Kunhi Umma) and on Thilakan v. M.C.V. Co‑operative Society, to show that limitation rules and certain arbitration provisions apply only to courts or to arbitrations governed by the Arbitration Act when so extended.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jokkim Fernandez v. Amina Kunhi Umma (1973 KLT 138 (F.B.))	That the Limitation Act, 1963 applies only to "courts" and prescribes limitation periods for suits, appeals and applications filed in courts; powers under Section 5 of the Limitation Act are exercisable only by courts and not by tribunals/other authorities; special/local statutes may constitute self‑contained codes on limitation.	The opinion uses the case to support the proposition that the Limitation Act's provisions do not automatically apply to tribunals constituted under special statutes and that a tribunal designated under a special enactment may not be a "court" for purposes of the Limitation Act.
Thilakan v. M.C.V. Co‑operative Society (1974 KLT 657)	Interpreting the Arbitration Act, 1940: the provisions of that Act apply to arbitrations under other enactments only as provided by Section 46; certain sections (notably Section 37) are excluded; the Limitation Act applies only to proceedings before courts, and "court" in that context generally refers to tribunals whose proceedings are governed by the CPC.	The opinion relied on this authority to show that the Arbitration Act cannot be read as automatically importing every civil procedure power (such as impleading under s.6(1) of the Arbitration Act) into arbitrations conducted under other enactments, and to reinforce that limitation provisions are primarily for courts rather than domestic tribunals under a special Act.

Court's Reasoning and Analysis

The court examined the statutory scheme of the Kerala Co‑operative Societies Act, 1969 and the rules framed thereunder, alongside the Arbitration Act, 1940 and the Limitation Act, 1963, to determine whether the Registrar (acting as arbitrator) had power to implead legal representatives.

Key components of the analysis:

The court acknowledged that Sections 77 and 98 of the Act and rule 67 invest the Registrar/Tribunal/arbitrator with certain specified powers of a civil court (for example, summoning witnesses, requiring discovery, receiving affidavit evidence, issuing commissions). These powers are enumerated in the statute and rules.
The court observed that impleading legal representatives is not among the powers expressly conferred by Sections 77 and 98. Those sections list particular civil‑court powers; impleading is not included in that list.
The presence of a rule provision allowing impleading of legal representatives in proceedings before the Tribunal (i.e., a provision in the rules for tribunal proceedings) and the absence of a corresponding provision for arbitration proceedings indicates that the legislature/rule‑makers did not intend an arbitrator to have the power to implead legal representatives in arbitrations under the Act.
The court analysed the Arbitration Act, 1940. While the Arbitration Act contains a provision enabling impleading of legal representatives (s.6(1)), Section 46 of the Arbitration Act—by its terms—makes the Arbitration Act applicable to arbitrations under other enactments except for certain expressly excluded sections. The court noted that Section 46 excludes sub‑section (1) of Section 6 (among other provisions). Therefore, the Arbitration Act cannot be used to supply to arbitrations under the Act the power of impleading by virtue of s.6(1) because that provision is specifically excluded by Section 46.
The court relied on the cited authorities to support the proposition that the Limitation Act and CPC provisions do not apply to such tribunals except to the extent the special Act makes them applicable. Thus, one cannot import the CPC's impleading rules or the Limitation Act's time limits into arbitration proceedings under the Act unless the Act expressly or necessarily provides for their application.
Synthesising the statutory text and the relevant authorities, the court concluded that no express or necessary power to implead legal representatives exists for the Registrar acting as arbitrator under the Kerala Co‑operative Societies Act; the arbitrator therefore lacked power to implead the petitioner's family in Arbitration Reference No. 57 of 1958.
Because the arbitrator had no power to implead, the court stated that the subsidiary question of whether impleading could be done long after the death (i.e., the limitation question) did not arise for consideration: if there is no power to implead at all, timeliness is irrelevant.

Holding and Implications

Holding:

The original petition is allowed; the order of the 1st respondent (Ext. P1) dismissing the revision is set aside.

Direct implications (as stated in the opinion):

The 2nd respondent was "clearly in the wrong" in impleading the petitioner and the other legal representatives of Velayudha Kurup in Arbitration Reference No. 57 of 1958.
The Ext. P1 order of the Cooperative Tribunal rejecting the revision against that impleading is wrong and illegal and has been set aside by the court.
The original petition is allowed and there will be no order as to costs.

Broader legal implication identified by the court:

The legal position, as concluded in this opinion, is that under the Kerala Co‑operative Societies Act, 1969 an arbitrator (the Registrar functioning as arbitrator) does not possess the power to implead legal representatives of a deceased party in arbitration proceedings under that Act. Because there is no statutory power to implead, questions about the applicable time‑limits for impleading under the Limitation Act or the CPC do not arise in such arbitrations.

No other orders or directions are provided in the opinion beyond allowing the original petition, setting aside Ext. P1 and directing that there be no order as to costs.

Show all summary ...

1. The petitioner in this original petition is the son of one velayudha kurup who was the counter - petitioner in arbitration reference no. 57 of 1958 before the 2nd respondent - deputy registrar of co - operative societies. The grievance of the petitioner is against ext. P1 order of the 1st respondent - cooperative tribunal, Trivandrum dismissing the revision petition filed by the petitioner, His late mother and three sisters. The said revision was against an order of the 2nd respondent impleading the legal representatives of the deceased velayudha kurup. The question that arises for consideration is whether an arbitrator under s. 70 of the kerala co - operative societies act, 1969, For short the act, Has the power to implead the legal representatives and, If so, Whether the legal representatives can be impleaded at any time after the death of the party.

2. The petitioner's father, Velayudha kurup, Left this world on 20 61970 when arbitration reference no. 57 of 1958 was pending before the 2nd respondent. In march 1974 the 3rd respondent - liquidator filed a petition for impleading the legal representatives of the deceased velayudha kurup in the above arbitration reference. The petitioner and the other legal representatives entered appearance and contended that they cannot be impleaded because no action to implead them was taken within three months from the date of death of velayudha kurup and hence the arbitration reference abated. But the 2nd respondent overruled the above objection and allowed the 3rd respondent's petition for impleading. Against the above order of the 2nd respondent, The petitioner and the other legal representatives of velayudha kurup filed a revision petition r. P. No. 19 of 1974 before the 1st respondent. The 1st respondent by ext. P1 order dated 13 91974 dismissed the above revision petition. The petitioner challenges the above order, Ext. P1, In this original petition.

3. A counter - affidavit has been filed by the 2nd respondent. The statement in para 3 of the counter - affidavit is that, "on 20 61970 the defendant sri kurup died. When the liquidator came to know of the death of the defendant, The liquidator made enquiries as to the legal representatives of the deceased and after obtaining their details filed a petition on 6 31974 before the arbitrator to implead five persons (the wife, The son and three daughters of the deceased defendant) the legal representatives of the deceased defendant. " it is pointed out in para. 4 as follows: "the kerala cooperative societies act, 1969 is a special enactment made with a view to deal with the co - operative societies and the members thereof. S. 69 of the act enumerates certain matters as disputes to be settled by the registrar under s. 70. S. 77 of the act says that the registrar or any person empowered by him in this behalf shall be deemed to be a civil court for the purposes of art. 136 of the schedule to the limitation act, 1963. " it is also pointed out in the counter - affidavit that the provisions of the civil procedure code regulating the impleading of the legal representatives in suits and appeals cannot apply to proceedings under the act.

4. Learned counsel for the petitioner contends that in the absence of any provisions in the act and the rules framed thereunder for impleading legal representatives, The 2nd respondent ought not to have impleaded the petitioner and the other legal representatives on the death of velayudha kurup. Learned counsel then contends that the legal representatives can be impleaded only if the provisions of the code of civil procedure and the limitation act, 1963 are applicable to arbitration proceedings under the act. According to the learned counsel, Even then the application for impleading has to be submitted within 90 days of the death of the party or within 90 days of coming to know of the death of the party. Learned counsel points out that in this case, Though velayudha kurup died on 20 - 6 - 1970 the petition for impleading was submitted by the 3rd respondent only in march 1974. Moreover, It is not even contended in the counter - affidavit filed in the case that the above petition was, As a matter of fact, Submitted within 90 days of the date on which the 3rd respondent came to know of the death of velayudha kurup. Learned counsel refers to r. 104 of the rules framed under the act and contends that there is provision made for impleading in proceedings pending before the co - operative tribunal and the absence of a similar provision in the act or the rules for impleading the legal representatives in proceedings pending before the arbitrator will only go to show that no impleading can be made in proceedings pending before the arbitrator. Learned counsel then refers to s. 77 and 98 of the act and contends that though the registrar functioning as arbitrator will have certain powers of the civil court, The power to implead is not given by these provisions.

5. Learned government pleader contends that it is clear from s. 69, 77 and 98 of the act that the legislature never intended to apply all the provisions of the code of civil procedure and of the limitation act, 1963 to proceedings under the act. The provisions of the above central enactments are made applicable by s. 77 and 98 of the act to the extent mentioned therein. Learned government pleader points out that the registrar, Arbitrator or other persons deciding disputes under the act are not civil courts and are only domestic tribunals created by the act. Hence, According to the learned government pleader, The provisions of the code of civil procedure regulating impleading of the legal representatives in suits and appeals are not applicable to proceedings under the act. In support of his contention, Learned government pleader relies on jokkim fernandez v. Amina kunhi umma (1973 klt. 138 (f. B.)) wherein it is said:

"the limitation act 1963 applies only to courts and prescribes periods of limitation in respect of suits, Appeals and applications filed only in courts. S. 18 of the buildings (lease and rent control) act is clear that the appellate authority constituted under it is not a court but only an authority persona designata. Even if the power under s. 5 of the limitation act, 1963 were to be read into special or local law by reason of the provisions of s. 29 of the limitation act, That power is exercisable only by courts and not by tribunals or other authorities such as the appellate authority in this case. The provisions of s. 18 (1) (b) show that the kerala buildings (lease and rent control) act. Was meant to be a self - contained code in the matter of prescribing the periods of limitation and granting exemption therefrom."

learned government pleader then refers to thilakan v. M. C. V. Co - operative society (1974 klt. 657) wherein my learned brother subramonian poti j. Has said:

"it is evident that the reference to arbitrations in s. 37 (1) of the arbitration act, 1940 can only be read as reference to arbitration under the said act. It is by virtue of s. 46 of the arbitration act that the provisions of the arbitration act are extended to other enactments relating to arbitration. That section particularly excludes s. 37 and therefore it is only the provisions other than s. 37 and certain other sections that would apply to other arbitrations. The provisions of the limitation act are applicable only to proceedings before a court and 'court' in that context refers to tribunals the proceedings before which are governed by;the provisions of the code of civil procedure or in some cases of the code of criminal procedure."

learned government pleader then contends that s. 69 and 70 of the act give the registrar the power to adjudicate claims made before him and this power should necessarily include the power to implead if pending proceedings a party dies. According to to the learned government pleader, If there is no power to implead in a case where the debtor dies pending proceedings, The creditor will not have any remedy. Learned government pleader also centends that unless the act which is a special statute makes the provisions of the limitation act 1963 applicable to proceedings under the act, By no stretch of imagination it can be said that the provisions in the limitation act which insist that the impleading of legal representatives should be within a specified time will apply.

6. Learned counsel for the petitioner replying to the arguments of the learned government pleader contends that even if it is conceded that the provisions of the arbitration act, 1940 apply to arbitrations under the act by virtue of s. 46 and 47 of the arbitration act 1940, Impleading of legal representatives cannot be had in arbitration proceedings under the act in the absence of any specific provision for the same in the act or the rules framed thereunder. Learned counsel then refers to r. 67 of the rules and contends that even under this rule the arbitrator will not have power to implead the legal representatives. Learned counsel concludes by saying that even if no limitation is provided for, The impleading of the legal representatives the impleading must be done within a reasonable time and as in this case the impleading was made years after the death of the party, The order of the arbitrator is not legal and proper. Hence, According to the learned counsel, The 1st respondent ought to have allowed the revision filed by the petitioner and the other legal representatives instead of dismissing the same by ext. P - 1.

7. S. 77 and 98 of the kerala co - operative societies act, 1969 read:

77. Registrar or person empowered by him to be a civil court for certain purposes. The registrar or any person empowered by him in this behalf shall be deemed, When exercising any power under this act for the recovery of any amount by the attachment and sale or by sale without attachment of any property, Or when passing any orders on any application made to him for such recovery, To be a civil court for the purposes of art. 136 of the schedule to the limitation act, 1963 (central act 36 of 1963). "

"98. Tribunal, Registrar, Etc., To have certain powers of civil court. (1) in exercising the functions conferred on it or him by or under this act, The tribunal, The registrar, The arbitrator or any other person deciding a dispute and the liquidator of a society shall have all the powers of a civil court while trying a suit under the code of civil procedure, 1908 (central act 5 of 1908), In respect of the following matters, Namely:

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of any document;

(d) issuing commissions for examination of witnesses.

(2) in the case of any affidavit, Any officer appointed by the tribunal, The registrar, The arbitrator or any other person deciding a dispute or the liquidator, As the case may be, In this behalf may administer the oath to the deponent. "

section 46 of the arbitration act, 1940 reads:

"the provisions of this act, Except sub - section (1) of s. 6 and s. 7,12, 36 and 37, Shall apply to every arbitration under any other enactment for the time being in force, As if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, Except in so far as this act is inconsistent with that other enactment or with any rules made thereunder."

rule 67 of the rules framed under the act also invests the registrar functioning as arbitrator with certain powers of the civil courts. No doubt, A civil court has got power to implead legal representatives in pending proceedings. But the registrar can implead the legal representatives in an arbitration proceeding pending before him only if he has got the power to do so. Though s. 77 and 98 of the act invest the registrar with certain powers of civil courts, Impleading of legal representatives is not included among the powers invested by the above sections. There is no indication anywhere in the act or the rules framed thereunder that the registrar has got the power to implead legal representatives in arbitration proceedings. There is provision in the rules for impleading legal representatives in proceedings pending before the tribunal. The absence of a similar provision regarding impleading of legal representatives in

arbitration proceedings also can only go to show that legal representatives cannot be impleaded in arbitration proceedings. Under the arbitration act, 1940, Legal representatives can be impleaded in arbitration proceedings, But s. 46 of the arbitration act, 1940 which makes the provisions of the arbitration act applicable to arbitrations under other enactments excludes s. 6 (1) of the arbitration act which enables the impleading of legal representatives in arbitration proceedings. So, The arbitration act, 1940 also will not clothe the registrar functioning as arbitrator under the act with power to implead legal representatives in arbitration proceedings. Hence, The legal position is that if a party to an arbitration proceeding dies pending proceedings, The registrar has no power to implead his legal representatives. If there is no power, The question whether impleading can be made long after the death of the party does not arise at all for consideration. The 2nd respondent was clearly in the wrong in impleading the petitioner and the other legal representatives of velayudha kurup in arbitration reference no. 57 of 1958. Ext. P - 1 order rejecting the petitioner's revision from the said order of the 2nd respondent is wrong and illegal and i set aside the same.

8. The original petition is allowed. There will be no order as to costs.