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Judgment
V. Periya Karuppiah, J.—Heard Mr. C. Prem kumar, learned Counsel for the Petitioner and Mr. S. Vadivel Murugan, learned Counsel
appearing for the second Respondent.
This revision is directed against the order passed by the learned District Judge in confirming the exparte award passed by the first Respondent
on a housing loan obtained by the Petitioners for a sum of Rs. 1,50,000/- with subsequent interest and costs. The exparte award passed in A.R.C.
No. 5 /2002-2003 dated 5.9.2002 was questioned by the Petitioners before the learned District Judge in C.M.A. No. 62 of 2002 and the same
was disallowed by the said Court. Therefore, the present revision has been filed.
Learned Counsel for the Petitioners would submit in his argument that the first Petitioner borrowed a sum of Rs. 1,50,000/- towards the
construction of his house and he has repaid the amounts through various receipts produced in Page Nos. 1 to 5 in the typed set of papers, for a
total sum of Rs. 23,592/-, and the said payments were not deducted before claiming the outstanding amount against the Petitioner and the
Petitioner could not attend the hearing before the Arbitrator since he was suffering from post hernia operation and he has become a sick person
and that he was receiving a pension for a sum of Rs. 2500/- per month after his retirement from the postal department. He would also submit that
the Petitioners were not given any opportunity to set aside the exparte award passed against the Petitioners and to state their case. He would again
submit in his arguments that the lower Appellate Court, instead of setting aside the exparte award, had gone into the merits of the case without any
evidence in support of its position and had dismissed the appeal. He would also submit that the refusal to give an opportunity by the learned
District Judge would amount to denial of reasonable opportunity and the Petitioners have got a good case to defend before the Arbitrator both in
respect of repayment of debts as well as the quantum of interest. He would therefore, request the Court to interfere with the judgment and decree
passed by the learned District Judge and to order the revision.
Learned Counsel for the second Respondent would submit in his argument that the Petitioners are chronic defaulters and they did not pay any
amount towards the outstanding sum payable towards the housing loan received by them. He would also submit that the said payments stated to
have been made by the Petitioners to the tune of Rs. 23,592/- were already given credit and for the balance amount only, the dispute had been
referred to the Arbitrator, before whom, the Petitioners did not appear for the hearing deliberately. He would also submit that the reasons
submitted by the learned Counsel for the Petitioners for the absence of the Petitioners before the Arbitrator were not true and no documents were
produced in support of such cause. He would also submit that the Petitioners themselves have promised before the Arbitrator that they would pay
a sum of Rs. 38,000/- within a particular period and also to pay the balance amount after one month from the said date but they did not appear
before the Arbitrator to defend the case in order to pay the amount as assured by them. He would also submit in his arguments that the Petitioners
may not be given any opportunity for the setting aside the exparte award since they were already defaulters of the loan amount as well as the
promised amount before the Arbitrator. He would therefore, request the Court that there is no reason for this Court to interfere with the order
passed by the learned District Judge in confirming the exparte award passed by the learned Arbitrator. Hence, he would request the Court to
dismiss the revision.
I have given anxious consideration to the arguments advanced on either side.
The revision is preferred by the Petitioners who were the debtors under the housing loan obtained from the second Respondent for a sum of Rs.
1,50,000/- on the basis of unregistered loan agreement by showing a collateral security of his house. There is no dispute that the sum of Rs.
1,50,000/- was lent by the second Respondent to the first Petitioner. However, the Petitioner''s case was that he had paid a sum of Rs. 23,592/-
on five occasions and in support of his claim, he has produced five receipts in the typed set. The contention of the learned Counsel for the
Respondent would be that those amounts paid by the Petitioners are true and they were already credited to the loan account and the balance
amount would be claimed only before the Arbitrator. Contrary submissions made by the learned Counsel for the Petitioners and the second
Respondent could be considered only if an opportunity is given to the Petitioners before the Arbitrator to prove the allegations made by the
Petitioners before this Court. The reasons submitted by the learned Counsel for the Petitioners would be that the first Petitioner was a retired
postal employee, receiving a meagre income of Rs. 2500/- towards his pension and he has to pay the outstanding in the loan account. It is also
mentioned in his argument that he was a sick person and the second Petitioner, the son of the first Petitioner was an unemployed person. The
submissions of the learned Counsel for the Petitioners that the first Petitioner underwent hernia operation and has become a sick person cannot be
brushed aside simply because he is already a retired person. The point raised by the learned Counsel for the Petitioner that he has paid a sum of
Rs. 23,592/- towards loan amount has to be gone into only if an opportunity is given to the Petitioners. Therefore, I find that the lower Appellate
Court is not correct in dismissing the appeal preferred by the Petitioners against the exparte award passed by the Arbitrator. The loan account
started in the year 1999 and it was agreed to be paid in 120 equal instalments. If the Petitioners have promptly paid the instalments, it would have
been completed in the year 2004 itself. However, except a sum of Rs. 23,592/-, no other amount has been paid so far. The Petitioners have
undertaken to pay a sum of Rs. 38,000/- before the Arbitrator but they were not honoured their promise. Therefore, it has become necessary now
to impose some conditions for the Petitioners to set aside the order passed by the learned District Judge passed in C.M.A. No. 62 of 2002.
Learned Counsel for the Petitioners would request the Court to grant two weeks time for paying a sum of Rs. 38,000/- as towards the loan
account. The said request of the Petitioner is bonafide and this Court is accepting his request for time for payment and accordingly, the revision will
be ordered and thereby the order passed by the learned District Judge in C.M.A. No. 62 of 2002 and the exparte award passed by the Arbitrator
in A.R.C. No. 5 /2002-2003 will be set aside on payment of a sum of Rs. 38,000/- by the Petitioners to the second Respondent directly through a
demand draft payable in favour of the second Respondent to the loan account within two weeks from the date of receipt of a copy of this order.
Failing to comply with the said condition, the revision shall stand dismissed automatically without further reference to this Court.
With the aforesaid direction, the civil revision petition is ordered. Consequently, C.M.P. No. 4489 of 2005 is closed.