JUDGMENT

Alexander Thomas, J.

The instant Writ Appeal is directed against the impugned judgment rendered by the learned Single Judge on 26.08.2019, dismissing the instant Writ Petition (Civil), W.P(C) No.32677/2010. The appellants herein are the 1st & 2nd petitioners, among the three petitioners in the W.P(C) and the respondents herein are the respondents in the W.P(C). R1 is the Palakkad District Co-operative Bank, R2 is R2 in the W.P(C) and R3 in the W.A is the 3rd petitioner in the W.P(C).

2. Heard Sri. Lindons C. Davis, learned counsel appearing for the appellants in the W.A/petitioners in the W.P(C) and Sri.M.Sasindran, learned Standing Counsel for the Palakkad District Co- operative Bank appearing for R1 in the W.A/for R1 in the W.P(C). Though R2 in the W.A/W.P(C) was duly served at the W.P(C) stage, he had not entered appearance and since the said party's grievance is the same as that of the writ petitioners, to the extent that, the challenge is directed as against the impugned Ext.P-3 award, as confirmed by Ext.P-5 revisional order, notice to R2 will stand dispensed with.

3. The prayers in the instant Writ Petition (Civil), W.P(C)

No.32677/2010 are as follows :

“i) Issue a writ in the nature of certiorari as or any other appropriate writ or order to call for records leading to Ext.P3 award and P5 order and to quash the same.

ii) to issue such other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.”

4. The main plea of the petitioners was for quashment of the impugned Ext. P-3 award, rendered by the notified Arbitration Court, as per Sec.69 of the Kerala Co-operative Societies Act, as confirmed by Ext.P-5 revisional order, passed by the Co-operative Appellate Tribunal, under Sec.84 of the Kerala Co-operative Societies Act. The partnership firm of the petitioners had taken a loan from the respondent-Bank and on default, Arbitration Reference Case (ARC), under Sec.69, was initiated by the said bank, which resulted in Ext. P-3 award, which has been confirmed by Ext. P-5 revisional order by the Co-operative Appellate Tribunal. One of the main contentions urged by the petitioners was that the respondent-Bank/claimant in the arbitration proceedings seeks the beneficial protection of Order XXX Rule 4 of the Civil Procedure Code (CPC) and since the said provision could be attracted only when partners are sued in the name of the firm, it cannot be applied in a case where the partnership firm has not been made a party at all, etc.

5. The learned Single Judge, after hearing both sides, has dismissed the above W.P(C), with the specific finding that the defendant sued in the arbitration claim, as per Ext. P-1, is the partnership firm concerned, through its five partners. Hence, the learned Single Judge found that, though the respondent-Bank/claimant had not chosen to implead the legal representatives of the Managing Partner, who died subsequently, the same will not vitiate the award, inasmuch as the claimant will get the benefit of Order XXX Rule 4 of the CPC, for the above reason. It is the abovesaid verdict of the learned Single Judge, dismissing the W.P(C), that is under challenge in the instant intra-court appeal, instituted under Sec. 5 (i) of the Kerala High Court Act.

6. A brief reference to the factual aspects of the case would be pertinent. The partnership firm concerned, namely “M/s Sukumaran & Company”, through its partners, had availed a loan facility from the Palakkad District Co-operative Bank. Ext. P-3 document, produced in the Arbitration Court proceedings, would show that the said document is a memorandum of mortgage title deed, executed by the defendant firm in favour of the plaintiff-Bank on 27.06.1994. Further, internal page.4 of Ext. P-3 would indicate that the defendant firm had created a charge on the property by execution of an equitable mortgage as collateral security on 27.06.1994, in respect of the property covered by the registered settlement deed No.475/1