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Rajasthan High Court · body

1999 DIGILAW 362 (RAJ)

Umaida Ram v. Bhavad Gram Sewa Sahakari Samiti

1999-03-16

B.J.SHETHNA

body1999
Honble SHETHNA, J.–All these petitions are disposed of by this common order as identical points are involved in all these petitions and that Rajasthan State Cooperative Tribunal, Jaipur (for short `the Tribunal) also disposed of in all 12 appeals filed by the appellant Ram Chandra Bishnoi individually and alongwith Binja Ram by common judgment and order dated 24.9.1994. (2). In all these writ petitions the notices were ordered to be issued to the respondent except in writ petition no.2953/98, however, same respondents are there in all these petitions, therefore, all these writ petitions are disposed of by this common order without issuing a formal notice in writ petition no.2953/98. It may also be stated that though the appellant Ram Chandra Bishnoi and Binja Ram be- fore the Tribunal were duly served, but they have not preferred to remain present before this Court either in person or through their advocate. Mr. Bheem Arora, learned counsel has appeared in all these matters for the respondent Assistant Registrar, Cooperative Society, Jodhpur. (3). Two widows of the original deceased members of Bhavad Gram Sewa Sahakari Samiti, Bhavad (for short `the Society) and ten other members of the same society made separate applications to the Assistant Registrar, Cooperative Society under the Rajasthan Cooperative Societies Act, 1965 (for short `the Act) praying that office bearer of the society be restrained from recovering debt from them in pursuance to the notice served by the society against them demanding amount of few thousand rupees against the respective persons as according to them the members have never applied for loan nor they had received the amount by way of loan from the society. It was also stated by them that they come to know for the first time that Shri Ram Chandra Bishnoi (who remained as a Manager of the society for 15 long years) and Bhagdu Ram (Exsalesman of the society) obtained loan in their name by forging the documents and signatures or thumb impressions of the members. The amount of loan was never received by them. It was also stated by them till Shri Ram Chandra Bishnoi was the Manager no such notice was issued against them, but as soon as he was transferred from the Society in 1987 the society issued notice for recovering the said amount from them. The amount of loan was never received by them. It was also stated by them till Shri Ram Chandra Bishnoi was the Manager no such notice was issued against them, but as soon as he was transferred from the Society in 1987 the society issued notice for recovering the said amount from them. It was, therefore, prayed that case may be registered against those persons and the amount which is deman- ded by the society may also be recovered from them. Apart from this, the members had also lodged FIR with Mathania Police Station for forgery and cheating. (4). The matter was referred to the Deputy Registrar of the Societies as Arbitrator. The Arbitrator after issuing notice against the concerned persons recor- ded the statement of the witnesses and also seized the record of the society and after considering the entire oral as well as documentary evidence led before him he passed the separate awards in case of all the members and held that Shri Ram Chandra Bishnoi - Ex-Manager was guilty of preparing forged documents. He, therefore, ordered that the outstanding amount with interest mentioned in the no- tice issued against the members be recovered from Shri Ram Chandra Bishnoi. He also observed that the same may be brought to the notice of the society to take appropriate action against the concerned officers of the society. (5). The aforesaid awards were challenged by Shri Ram Chandra Bishnoi by way of appeals, in some cases individually and in some cases jointly with his father Binja Ram. Binja Ram was co- appellant with Ram Chandra Bishnoi in appeal nos. 32/88, 33/88, 36/88 and 40 to 42/88, whereas, in rest of the appeals Ram Chandra Bishnoi was the sole appellant before the Tribunal. (6). Shri O.P. Bishnoi, the then sole member of the Tribunal allowed the appeals filed by Ram Chandra Bishnoi and Binja Ram by his common judgment and order dated 24.9.1994 and set aside the awards passed by the Arbitrator and accordingly, dismissed the original applications filed by the members before the Arbitrator. (7). Aggrieved of the aforesaid common judgment and order dated 24.9.94 passed by the learned Tribunal, out of 12 members, only 6 members filed the aforesaid writ petitions before this Court. (8). (7). Aggrieved of the aforesaid common judgment and order dated 24.9.94 passed by the learned Tribunal, out of 12 members, only 6 members filed the aforesaid writ petitions before this Court. (8). Learned counsel Shri K.R. Chaudhary and G.L. Chaudhary for the petitioners vehemently submitted that the learned Tribunal committed a grave error in allowing all the appeals without condoning the delay in filing the appeals without condoning the delay in filing the appeals late by four months. (9). Learned counsel Shri Bheem Arora appearing for the Assistant Registrar has also supported the submissions made by Mr. K.R. chaudhary and G.L. Chaudhary for the petitioners. (10). The date of the award is 28th December, 1987. Section 123 (6) of the Act provides that the appeal may be filed within 60 days from the date of the decision award or order, as the case may be, to the Tribunal. Though specific contention was raised by the present petitioners before the Tribunal that appeals should be dismissed on the ground of delay and laches, the Tribunal, without an application under Section 5 of the Limitation Act, condoned the delay and entertained the appeals and decided the same on merits. The Tribunal was of the opinion that the appeals were filed within a period of 60 days, therefore, it cannot be said that the appeals were filed beyond the period of limitation, therefore, they cannot be dismissed. The learned Tribunal has observed in its order that the award was dated 28.12.1987 and the appellants produced the letter dated 9.5.88 received from the Assistant Registrar, Cooperative Societies, Jodhpur asking them to deposit the amounts ordered by the Arbitrator. The copy was given to the appellants on 17.5.1988 and the appeals were filed by them on 1.7.88. Therefore, according to the Tribunal, it is from the date of the knowledge of the award, the appeals were requi- red to be filed within 60 days and the appeals were filed on 1.7.88, which were within time. However, from the Award passed by the Arbitrator, it is clear that the Award was passed on 28.12.1987 in presence of the appellant Ram Chandra. The wording of Section 123 of the Act is clear that appeal is to be filed from the date of the decision. Thus, the appeals were required to be filed within 60 days i.e. on or before 27.2.1987 by the appellants before the Tribunal. The wording of Section 123 of the Act is clear that appeal is to be filed from the date of the decision. Thus, the appeals were required to be filed within 60 days i.e. on or before 27.2.1987 by the appellants before the Tribunal. Admittedly, the appeals were filed later on 1.7.1988, after a period of almost four months of expiring the limitation period. Under the circumstances, the appellants were required to file an application under Section 5 of the Limitation Act. In absence of any application under Section 5 of the Limitation Act, the Tribunal was obviously in error in hol- ding that the appeals were filed in time and deciding the matter on merits. Therefore, on this ground alone, all these petitions were required to be allowed. (11). However, even assuming for the sake of argument that the appeals were within time, then on merits also, the impugned order passed by the Tribunal is not sustainable, therefore, required to be set aside. (12). Petitioners Kana Ram, Jora Ram, Poona Ram, Bhinya Ram, Kesar Devi Widow of deceased Sajjan Ram (original member) and Umaida Ram have filed the above petitions respectively. The amount which is demanded by the society from them is Rs.2398/-, 1590/-, 2140/-, 1885/-, 2104/- and 3597/- respectively. (13). The learned Tribunal found fault with the award passed by the Arbitrator firstly on the ground that the Arbitrator committed a grave error in comparing the thumb impressions of the original applicants, as he was not the expert. It may be stated that no such objection was raised before the Arbitrator by the appellant Ram Chandra on this point. No prayer was made to send the thumb impressions of the applicants before the hand writing expert. That apart, from a bare look at the thumb impression if the Arbitrator was able to come to the conclusion that the thumb impression put on the loan papers was apparently not trallying, then there was no reason for the Arbitrator to send it to the hand writing expert. In two cases widows of the members filed an application and they have stated that the thumb impression was not of their respective husbands. In that case, obviously, there is no question of tallying the thumb impression. (14). In two cases widows of the members filed an application and they have stated that the thumb impression was not of their respective husbands. In that case, obviously, there is no question of tallying the thumb impression. (14). If the Arbitrator has found that the thumb impression of as many as ten members was forged one, then there is no reason for the Arbitrator to take a different view of the matter in cases of those two late members. That apart, if the Tribunal was of the opinion that it was required to be sent to the hand writing expert, then before allowing the appeals, it was the duty of the Tribunal to atleast send thumb impression of ten members for comparison before the hand writing expert, where the Tribunal has completely failed. In that view of the matter, the finding arrived at by the Tribunal that the Arbitrator was not competent to tally the thumb impression of the members was absolutely wrong. (15). The second reason assigned by the Tribunal for setting aside the awards passed by her Arbitrator was that it was found from the evidence on record that the amount was to be paid by the Bank and not by the Manager, therefore, the Arbitrator was in error in passing the award. This reasoning is absolutely unsustainable for the simple reason that the case of the applicants was that none of them received any amount whatsoever. (16). Lastly, the Tribunal held that the Arbitrator passed the award without application of mind and recorded the evidence of as many as 40 witnesses on one day i.e. on 25.11.1987, which is not at all believable. The very fact that the Arbitrator has recorded the evidence of as many as 40 witnesses in one day shows that the Arbitrator fully applied his mind. The evidence of the witnesses was not lengthy, it was hardly of two pages and the consistent stand of all the members was that none of them had either signed the documents or put their thumb impressions. There was no allegation of malafide levelled against the Arbitrator. The Deputy Registrar of the Cooperative Societies was the Arbitrator and he was neither interested in the petitioners nor he was hostile to Ram Chandra or Binja Ram. In that view of the matter, the reason assigned by the Tribunal is also wholly unsustainable. (17). There was no allegation of malafide levelled against the Arbitrator. The Deputy Registrar of the Cooperative Societies was the Arbitrator and he was neither interested in the petitioners nor he was hostile to Ram Chandra or Binja Ram. In that view of the matter, the reason assigned by the Tribunal is also wholly unsustainable. (17). Learned counsel Shri Mathur for the respondent Ram Chandra and Binja Ram half-heartedly tried to support the common judgment and order passed by the Tribunal. He submitted that when two views were possible and view taken by the Tribunal in favour of Ram Chandra and Binja Ram is reasonable then this Court should not interfere with the said common judgment and order passed by the Tribunal in its writ jurisdiction. This submission of Mr. Mathur cannot be accepted for the simple reason that the reasons assigned by the Arbitrator in the award pass- ed by him were strong reasons, whereas, the reasons assigned by the learned Tribunal in appeals were absolutely unsustainable and no reasonable person could have taken such view of the matter. (18). In view of the above discussions, all these petitions are allowed ,the impugned common judgment and order dated 24.9.94 passed by the Rajasthan State Cooperative Tribunal allowing appeals no.31/88 to 42/88 is hereby set aside qua the petitioners. The consequence of it is that all the separate awards passed by the Arbitrator in favour of the present petitioners - original applicants are restored. Respondent Ram Chandra in all these petitions is directed to pay a cost of Rs.1000/- to each petitioner. (19). Before parting, I must state that I agree with the submission made by the learned counsel for the petitioners that for extraneous consideration the sole learned Member of the Tribunal Shri O.P. Bishnoi had gone out of his way and allo- wed the appeals and put unnecessarily the poor, innocent and illiterate persons in difficulty and made to suffer. Copy of this order be placed in confidential record of the learned Judge Shri O.P. Bishnoi.