Fair representation in legal proceedings is a fundamental right, and reasonable explanations for absenteeism must be considered by the court.

JUDGMENT

The petitioners are the President and Secretary of the Peruvemba Service Co-operative Bank Ltd. ARC proceedings were initiated as ARC.No.69 of 2017 by the first respondent herein against the Society and few others. The petitioners who were the defendants 1 and 2 appeared and filed written statement. The case stood posted to 26.11.2018. It seems that the petitioners were set exparte on that day. Thereafter, on coming to know about the exparte order, an application was filed on 09.07.2019 to condone the delay and to set aside the exparte order, supported by an affidavit affirmed by the counsel. It was stated by the counsel that, on 26.11.2018 he was proceeding to Calicut to attend the case, and since the train was late, he had instructed a lawyer to represent on his behalf. On a belief that counsel has properly represented, he continued to participate in the proceedings thereafter till 09.07.2019, on which day he came to know about the exparte order on 26.11.2018.

Thereafter an application was filed on 09.02.2019. That application was dismissed by the court, holding that the delay was not properly explained. This is under challenge in this proceedings.

2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. It seems that the learned counsel for defendants had specifically stated in the affidavit that he was travelling by train on 26.11.2018 and on realising that the train was running late, he had authorised a lawyer to represent. He had specifically averred that he was under the impression that proper representation was made on that day and thereafter he continued to participate, without knowing that he was declared as exparte.

3. It seems that the petitioners have explained the reason for the delay. It seems that the petitioners were prompt in contesting the proceedings before the court below, essentially since written statement was filed and almost on every posting day, the petitioners were represented by the counsel. This fact is not in dispute.

4. Having considered the entire facts I am not able to accept the reasoning given by the court below and the impugned order naturally is liable to be set aside. In the result, Ext.P5 order is set aside. IA.No.113/2019 in ARC.No.69 of 2017 will stand allowed and the Co-operative Arbitration Court (Northern) shall take up the matter and proceed in accordance with law and pass appropriate orders, after giving opportunity to both sides to contest the proceedings. Both sides shall appear before the authority on the next posting date.

Writ Petition is disposed of.

Sd/-

SUNIL THOMAS, JUDGE

R.AV

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 PHOTOCOPY OF THE PLAINT DT 30.03.2017 FILED BY THE 1ST RESPONDENT AS ARC 69 OF 2017 BEFORE 2ND RESPONDENT EXHIBIT P2 PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE BANK DT 27.10.2019 IN ARC

69 OF 2017 BEFORE 2ND RESPONDENT EXHIBIT P3 PHOTOCOPY OF THE IA 113 OF 2019 DT

09.07.2019 FILED BY THE BANK IN ARC 69 OF 2017 PENDING BEFORE 2ND RESPONDENT EXHIBIT P4 PHOTOCOPY OF THE OBJECTION TO EXHIBIT P3 FILED BY THE 1ST RESPONDENT DT

21.08.2019 EXHIBIT P5 PHOTOCOPY OF THE PLAINT ORDER DT

11.11.2020 IN IA 113 OF 2019 IN ARC 69 OF

2017 PASSED BY THE 2ND RESPONDENT RESPONDENT'S/S EXHIBITS NIL