Non-compliance with the procedure for service of notice under S.104 of the Kerala Co-operative Societies Act, 1969 led to the quashing of the ex parte award.

1. This writ petition was heard and the judgment was dictated on 23-2-1979; however, as clarifications on certain points were felt necessary the judgment was not signed, and the matter was ordered to be re-posted; this judgment is now pronounced after having heard the matter further today.

2. The petitioner is a member of the Arbor Village Service Co-operative Society of which the second respondent is the Secretary. The Society initiated arbitration proceedings against the petitioner for realising amounts alleged to have been due from him to it. The Arbitrator (the Assistant Registrar of Co-operative Societies) passed an ex parte award fixing the liability of the petitioner. Revision Petition No. 27 of 1974 against the award, preferred by the petitioner was dismissed by the first respondent, the Kerala Co-operative Tribunal. Ext. P1 is the copy of the revision memorandum dated 15-11-1974, and Ext P2 is the copy of the common judgment of the 1st respondent dated 11-12-1976 disposing of Revision Petition No. 27 of 1974 along with Revision Petition Nos. 28 and 29 of 1974.

3. In revision petition No. 27 of 1974, with which alone we are concerned in this writ petition, the question of law raised by the petitioner related to the non compliance with the procedure prescribed in R.67 (4) (b) of the Kerala Co-operative Societies Rules, 1969, hereinafter referred to as the Rules, by the Arbitrator while passing the ex parte award which gave rise to the revision. R.67 (4) (b) reads as follows:

"In the absence of any party to the dispute duly summoned to attend, the dispute may be decided ex-parte."

The contention of the counsel for the petitioner was that it was without duly summoning the petitioner that the ex parte award was passed. He submitted that the manner in which notice to the party was to be issued is as laid down in S.104 of the Kerala Co-operative Societies Act, 1969, hereinafter referred to as the Act, which reads as follows:

"Service of notice. Every notice or order issued or made under this Act may be served on any person, by properly addressing it to the last known place of residence or business of such person prepaying and posting by registered post a letter containing the notice or order and, unless the contrary is proved, such service shall be deemed to have been effected at the time at which the letter would be delivered in the ordinary course."

4. The Tribunal in Para.14 of its judgment, rejecting the contention of the petitioner raised in Revision Petition No. 27 of 1974, has observed as follows:

"S. 104 starts with the words 'every notice or order issued or made under this Act may be served on any person'. The legislature has used the word 'may be served'. It does not use the words 'shall be served'. The usage of the words 'may be served' according to me, contemplates an alternate method and it does not set down the only method. If that was the only method to serve summons the legislature should have used the words shall be served. On my part I am of the opinion that S.104 does not set down the only method under which summons could be served on the parties appearing before an Arbitrator."

5. Sri S. Parameswaran, the counsel for the petitioner, submitted that though the same power as that of a civil court under the Code of Civil Procedure is seen to have been conferred on the Tribunal, the Registrar, the Arbitrator etc. with respect to matters enunciated in S.98 of the Act, it is not seen to have been prescribed therein the procedure to be followed when a person has to be summoned or his attendance enforced for examining him on oath by virtue of clause (a) of sub-section (1) of that section. He went on to argue that as a matter of fact the section is silent on the procedure to be followed while exercising the powers enumerated therein, presumably for the reason that the framers of the Act thought that it could be left to be provided in the Rules that would be framed in accordance with S.109 of the Act. It is also