The petitioners are aggrieved with Exhibit P3 award. Admittedly the petitioners are the wife and children of one Gopinathan Pillai, who had availed of a loan from the 2nd respondent-Bank. The said loan was in default and the 2nd respondent had proceeded for recovery, by filing an application under Section 69 of the Kerala Co-operative Societies Act, 1969 [for brevity “the Act”]. An award was passed at Exhibit P3 and execution was also proceeded with, as is evidenced by Exhibit P2. The award is impugned on the ground that the same was passed without impleading the legal heirs of the borrower, the latter of whom had died even prior to the filing of the Arbitration Case. 2. The learned counsel appearing for the respondent-Bank submits that, in fact the wife of the deceased borrower, the 1st petitioner, had acknowledged the notice and had attended the hearing, wherein the wife had undertaken to settle the loan amounts.
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3. However, such contentions cannot be taken into account, since the award itself has been passed against a dead person, which is non est in the eye of law. The respondent-Bank, on being informed of the death of the borrower, ought to have filed the Arbitration Case by impleading the legal heirs of the deceased. A perusal of Exhibit P3 award would indicate that the date of the plaint itself was 09.05.2013, while Exhibit P1 shows the date of death of the borrower as 26.06.2010. In such circumstance, Exhibit P3 award has to be set aside. The execution proceeded by the Bank on the basis of the award also cannot be continued.
4. In the result, Exhibit P3 award is set aside. It is ordered that Exhibit P2 shall not be proceeded with. The petitioners and the 2nd respondent shall appear before the 1st respondent on 10.01.2015. The Arbitrator shall implead the petitioners herein and shall proceed with the matter and conclude the same as expeditiously as possible, at any rate within two months from the date of appearance. The petitioners as also the 2nd respondent shall not be issued with any separate notices, since this Court has directed WP(C).No.16898 of 2014 - 3 -
appearance of the petitioners and the 2nd respondent on 10.01.2015.
The writ petition is disposed of as above. Parties shall suffer their respective costs.
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Sd/- K.Vinod Chandran Judge ( true copy )