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HIGH COURT OF KERALA
SUNIL THOMAS, J
RAJEEV THOMAS – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/7794/2021
Enforceability - Arbitration Award - [Act Section List: None] - The court examined the validity of an arbitration award rendered against a deceased person, resulting in the conclusion that the award was unenforceable due to lack of legal standing, particularly the absence of legal heirs in proceedings.
Fact of the Case:
The petitioner contested an arbitration award passed against his deceased mother, arguing it was unenforceable as she had died prior to the award's issuance. The petitioner presented death certificates to substantiate this claim.
Finding of the Court:
The court noted that objections to the award's validity were not raised during prior proceedings, indicating a lack of bona fides from the petitioner. Ultimately, the award was ruled unenforceable due to the failure to bring legal heirs into the arbitration proceedings.
Issues: Whether an arbitration award can be enforced against a deceased party and the implications of not including legal heirs in the proceedings.
Ratio Decidendi: The court held that an award passed against a deceased individual is unsustainable and cannot be enforced, especially if legal heirs were not joined as parties to the proceedings.
Final Decision: The writ petition was dismissed.
JUDGMENT
Dated this the 25th day of March 2021 The petitioner herein is the son of one Late Thomas. The said Thomas along with his wife Aliyamma Thomas and few others had availed five loans from the fourth respondent Co-operative Bank. It is submitted at the time of hearing that the total loan was about Rs.1,15,00,000/- (Rupees One crore fifteen lakhs only).
2. Since there was default in repayment, arbitration proceedings were initiated against Aliyamma Thomas, Thomas and others. It is reported that Aliyamma Thomas did not participate in the arbitration proceedings and an award was passed on 19.11.2014. Property was brought for sale on 28.11.2018 and thereafter, the sale was confirmed. Now, it is posted for delivery on 26.03.2021. At this last moment, the petitioner has approached this Court contending that the award is unenforceable since as on the date of passing of the award, Aliyamma Thomas had died. To substantiate that Aliyamma Thomas died 09.11.2013, prior to the date of award ie., 19.11.2014, the petitioner relies on the death certificate of Aliyamma Thomas produced as Ext.P1. It is further stated that her husband Thomas died on 17.01.2015. It was vehemently contended by the learned Counsel for the petitioner that the award was passed against a dead person and consequently, the award is unsustainable and no award could have been passed. Since, the legal heirs were not brought on record, all further proceedings are illegal and liable to be interferred.
3. Mr. Liji J. Vadakedom appeared for the bank and opposed the application. It was brought to my notice after the award was passed and in the course of the execution proceedings None of the judgment debtors appeared. A writ petition is filed by the legal heirs as W.P.(C.) No.21149 of 2018 in which they raised contentions regarding the execution proceedings. However, they did not raise any objection that the award was not sustainable in the light of the fact that the mother had died prior to the award. Further, apart from Aliyamma Thomas, other respondents remained exparte during the arbitration proceedings and all other respondents were in the party array. The petitioner herein thereafter appeared and contested the proceedings in various forums including this Court by filing a writ petition. He never raised a contention as now raised in any of those proceeding.
5. It is however submitted by the learned Counsel for the fourth respondent that the existing liability has now crossed Rs.2,00,00,000/- (Rupees Two crores only). It is also to be noted that the petitioner has moved this Court only on the eve of delivery which clearly indicates that the only intention was to protract the delivery proceedings at any cost.
I am inclined to hold that there is no bonafides in the writ petition and consequently petitioner is not entitled for any discretionary remedy. He will have to work out his remedy, if any available, in accordance with law. The writ petition is accordingly dismissed.
Sd/-
SUNIL THOMAS JUDGE
APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE DEATH CERTIFICATE OF THE MOTHER OF THE PETITIONER DATED 19.12.2013.
EXHIBIT P2 TRUE COPY OF THE DEATH CERTIFICATE OF THE FATHER OF THE PETITIONER DATED 17.1.2015.
EXHIBIT P3 TRUE COPY OF THE AWARD DATED 19.11.2014 PASSED BY 3RD RESPONDENT AGAINST A DEAD PERSON IN CASE NO.2388/14.
EXHIBIT P4 TRUE COPY OF THE AWARD DATED 19.11.2014 PASSED BY 3RD RESPONDENT AGAINST A DEAD PERSON IN CASE NO.2389/14.
EXHIBIT P5 TRUE COPY OF THE AWARD DATED 19.11.2014 PASSED BY 3RD RESPONDENT AGAINST A DEAD PERSON IN CASE NO.1109/14.
EXHIBIT P6 TRUE COPY OF THE AWARD DATED 19.11.2014 PASSED BY 3RD RESPONDENT AGAINST A DEAD PERSON IN CASE NO.1113/14.
EXHIBIT P7 TRUE COPY OF THE AWARD DATED 19.11.2014 PASSED BY 3RD RESPONDENT AGAINST A DEAD PERSON IN CASE NO.1114/14.
EXHIBIT P8 TRUE COPY OF THE AWARD DATED 19.11.2014 PASSED BY 3RD RESPONDENT AGAINST A DEAD PERSON IN CASE NO.1115/14.
EXHIBIT P9 TRUE COPY OF THE AWARD DATED 19.11.2014 PASSED BY 3RD RESP
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