K. Vinod Chandran, J.

The petitioners are aggrieved with the order passed at Exhibits P6 and P7, by the Assistant Registrar (General), who is appointed as the Arbitrator under Section 69 of the Kerala Co-operative Societies Act, 1969 [for brevity "KCS Act"].

2. Admittedly each of the petitioners were borrowers from the 5th respondent-Bank. Default in the loans is also admitted. The claim raised before this Court is only with respect to the interest liability of the petitioners. The petitioners contend that the same is excessive.

3. In any event, there were awards, as evidenced at Exhibit P1 and P2 as early as on 23.05.2012. The petitioners do not have a case that they were not issued with notice by the Arbitrator; nor do the petitioners have a case that they were not served with a copy of the award under Rule 68 of the KCS Rules. The 1st petitioner admits in Exhibit P3 that he had initially appeared and submitted objections and then absented himself. Exhibit P4 application filed by the 2nd petitioner does not disclose any reasons for the non-appearance before the Arbitrator.

4. Petitioners admittedly did not file any appeal from the award passed. Only when recovery proceedings were initiated, the petitioners filed applications before the Arbitrator seeking setting aside of the ex parte order. The petitioners were also before this Court and this Court by Exhibit P5 directed consideration of the applications filed before the Arbitrator. The Arbitrator having considered the same, dismissed the applications by Exhibits P6 and P7, holding that the petitioners ought to have approached higher Courts, meaning the Tribunal, before which an appellate remedy is provided.

5. It is to be noticed that there is no specific provision under the KCS Act or the Rules framed thereunder, granting power to the Arbitrator to set aside an award on the ground that the defendant was declared ex parte. The Code of Civil Procedure has been adopted to a limited extent, in Section 98 of the KCS Act. This adoption does not provide for power to set aside an award on the ground that the defendants were set ex parte in the proceedings.

6. The learned counsel for the petitioners, however, would contend that under Section 67(7)(b) of the KCS Act, there is a power to declare a person ex parte and, hence, there should be a power found, to set aside such orders also. There could be no quarrel with respect to such proposition. The Arbitration Court, which has the power to declare a person ex parte, would also have the power to set aside such order and permit a person set ex parte, to be participated in the proceedings. But, that would have to be invoked before an award is passed.

7. When an award is passed as such, after declaring a party ex parte, then necessarily an appeal would have to be preferred. The said position is supported by a decision of this Court reported in Poulose v. Sukumaran Nair [1974 KLT 47]. The learned counsel for the petitioner would place reliance on two decisions of this Court in Commissioner of Income Tax v. Income Tax Appellate Tribunal [1979 KLT 708] and Mohammed v. Chakkappan [1983 KLT 854], to further buttress his contention.

8. A dismissal of an application under Section 69 made by a Bank, for reason of non-appearance of the Bank was restored by the Arbitrator in Poulose (supra). This Court held that the Arbitrator has "no jurisdiction to entertain an application to set aside an ex parte award, and restore the case for hearing". But, however, interference under Article 226 was declined since it was found that the attempt of the defendant/borrower was to wriggle out of the liability on the ground of default without a proper adjudication. It was also found that an appeal would have resulted in the setting aside of the award.

9. 1979 KLT 708 (supra) was a decision in which a Division Bench of this Court found that an Appellate Authority under the Income Tax Act, 1961 has jurisdiction to set aside an ex parte order. However, that power wa