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2006 DIGILAW 1116 (RAJ)

Gaj Singh v. Sujawalpur Gram Sewa Sahakari Samiti

2006-04-07

DINESH MAHESHWARI

body2006
JUDGMENT 1. - These two writ petitions being directed against the common order dated 15.4.2005 passed by the Additional Registrar (Appeals), Co-operative Societies, Jodhpur (respondent No. 3) involving common questions of law and facts were heard together and are taken up for disposal by this common order. 2. Briefly put, facts relevant for determination of the questions involved in these writ petitions are that one Likh Mohinder Singh was employed as Assistant Manager by the respondent No. 1 Society. It is alleged that Gaj Singh (petitioner of Writ Petition No. 2790/2005) and Bhola Singh (father of the petitioner of Writ Petition No. 2791/2005) extended personal guarantees for proper working of the said employee and bound themselves to make payment to the society in case of any embezzlement or loss caused by the employee. 3. In Writ Petition No. 2790/2005 the petitioner has alleged that the respondent No. 2 Executive Officer, the Ganganagar Kendriya Sahakari Bank Ltd., Sriganganagar issued a demand notice on 1.1.2003 under Rule 92 of the Rajasthan Co-operative Societies Rules, 1966 ('the Rules of 1966') in the name of the petitioner alleging that a decree in the sum of Rs. 1 lac has been passed against the petitioner as guarantor of the said employee and the petitioner was called upon to deposit the amount else the same would be recovered from the sale of his movable and immovable properties. The petitioner allegedly filed a reply to the notice disputing his liability; and according to the petitioner, the respondent No. 2 without deciding the objections of the petitioner proceeded to issue sale proclamation. The petitioner filed a revision petition alongwith application under Section 5 of the Limitation Act before the respondent No. 3 under Section 107 of the Rajasthan Co-operative Societies Act, 2001 ('the Act of 2001') and also submitted an application for interim relief. The petitioner has averred that the respondent No. 3 paced an order on the stay application that if the petitioner deposits Rs. 50,000/- then the proceedings for auction shall remain stayed; and that in compliance of the stay order, the petitioner deposited Rs. 50,000/- on 31.8.2004 with the respondent No. 2 Bank. However, the respondent No. 3 has proceeded to consider the revision petition and to dismiss the same by the impugned order dated 15.4.2005 refusing to condone the delay in filing the revision. Hence, this writ petition. 4. 50,000/- on 31.8.2004 with the respondent No. 2 Bank. However, the respondent No. 3 has proceeded to consider the revision petition and to dismiss the same by the impugned order dated 15.4.2005 refusing to condone the delay in filing the revision. Hence, this writ petition. 4. In Writ Petition No. 2791 /2005, the petitioner has pointed out that the guarantee is alleged to have been extended by his father Bhola Singh who expired on 30.5.1996. A similar notice under Rule 92 of the Rules of 1966 was issued but in the name of deceased Bhola Singh stating passing of a decree for Rs. I lac against Bhola Singh and for deposit of the amount else for coercive proceedings. The petitioner has alleged that he filed reply to the notice before the respondent No. 2 on 1.5.2003 stating that Bhola Singh had died on 30.5.1996 and no recovery can be effected against a dead person. According to the petitioner, the respondent No. 2, without deciding the objections proceeded to issue sale proclamation in relation to the properties of deceased Bhola Singh. The petitioner filed a revision petition under Section 107 of the Act of 2001 alongwith application under Section 5 of the Limitation Act and in this revision petition also the respondent No. 3 passed a similar nature order of depositing Rs. 50,000/- for stay of the auction proceedings; and the petitioner has averred that he has deposited Rs. 50,000/- on 3.9.2004 with the respondent No. 2. However, the respondent No. 3 has heard this revision petition also alongwith revision petition noticed hereinbefore and by the common order dated 15.4.2005 refused to condone the delay and rejected the revision. Hence, the petitioner Gurmail Singh has also filed the writ petition assailing the order dated 15.4.2005. 5. The contesting respondents have submitted separate replies to each of the writ petitions and it has been maintained that no reply was filed by the petitioners as alleged and the recovery proceedings have rightly been adopted against the respective guarantors. In relation to the factum of demise of the guarantor in Writ Petition No. 2791/2005 it has. been pointed out that such facts were never divulged before the respondents. Passing of the interim order in each of the case of depositing Rs. 50,000/- and each of the petitioners having deposited Rs. 50,000/- with the respondent No. 2 has of course been admitted. been pointed out that such facts were never divulged before the respondents. Passing of the interim order in each of the case of depositing Rs. 50,000/- and each of the petitioners having deposited Rs. 50,000/- with the respondent No. 2 has of course been admitted. It has been maintained that the recovery has rightly been adopted in view of the liability of the guarantors voluntarily undertaken. 6. Learned counsel for the petitioners attempted to make submissions in relation to the merits of the case about the liability of the petitioners and also submitted that the learned Additional Registrar (Appeals) has acted wholly illegally in rejecting the revision petition on the ground of delay without considering the facts pointed out by the petitioners in their proper perspective and without considering that the petitioner were denied an opportunity of hearing before passing of the decree and attempting coercive recovery proceedings. Learned counsel for the respondents has duly supported the order impugned and has pointed out that gross inordinate delay of about one year and four months has not been explained, and on the contrary, from the very same assertions as made by the petitioners, it is apparent that the petitioners have failed to make out any case for condonation of delay. 7. Having heard learned counsel for the parties and having perused the material placed on record, this Court is clearly of opinion that the impugned order dated 15.4.2005 cannot be sustained and the petitioners deserve an opportunity of hearing in their respective revision petitions. 8. The learned Additional Registrar (Appeals) has proceeded to notice the submissions made by the petitioners that they had submitted objections but the Executive Officer did not take any proceedings and they came to know about further proceedings for coercive recovery only when Patwari concerned pointed out that the particulars of their agricultural land have been requisitioned by the Executive Officer. The learned Additional Registrar (Appeals) has observed that no reply to the notice was available in record of the bank and, therefore, it appeared that baseless grounds were submitted seeking condonation of delay. 9. This Court is clearly of opinion that having regard to the facts and circumstances of the case there appears to be no reason for the petitioners to have avoided taking up of suitable proceedings within reasonable time on noticing the recovery proceedings against them. 9. This Court is clearly of opinion that having regard to the facts and circumstances of the case there appears to be no reason for the petitioners to have avoided taking up of suitable proceedings within reasonable time on noticing the recovery proceedings against them. The petitioners have alleged that they are not the members of the society nor its debtors and it has also been suggested that the guarantee was earlier stated for a sum of Rs. 25,000/- but another document was got executed extending it to Rs. 75,000/- without the petitioner of Writ Petition No. 2790/2005 having been posted with correct facts. The other petitioner of Writ Petition No. 2791/2005 is regularly claiming that the alleged guarantor, his father, has expired in the year 1996 even before alleged making of the decree and no liability could be fastened on him. Moreover, it also appears that the learned revisional authority in the first place entertained the revision and issued interim order in the manner that the respective petitioners shall deposit Rs. 50,000/- with the bank concerned for stay of coercive recovery proceedings. 10. This Court is clearly of opinion that the learned revisional authority having adopted such a course of requiring respective petitioners to make deposit to fifty per cent of the demand with the bank was not justified in thereafter refusing to consider the matter on merits only on. the consideration that in the bank's record, the reply stated by the petitioners was allegedly not available. The learned revisional authority has not even put a glance on the merits of the case before proceeding to reject the application for condonation of delay. In the facts and circumstances of the case, it was required of the learned revisional authority to have at least prima facie examined the merits of the case before non-suiting the petitioners altogether. 11. It is to be imbibed that rules of procedure are intended to serve the cause of justice and it is always preferred to decide a case on merits rather than driving out a party on mere technicalities. In the overall facts and circumstances of the case, it appears appropriate that the petitioners are extended on opportunity of hearing on merits particularly in view of the fact that the petitioners have admittedly deposited Rs. In the overall facts and circumstances of the case, it appears appropriate that the petitioners are extended on opportunity of hearing on merits particularly in view of the fact that the petitioners have admittedly deposited Rs. 50,000/- each with the respondent No. 2 and this Court is clearly of opinion that an opportunity of hearing on merits could be extended to the petitioners without causing prejudice to the contesting respondents. 12. In view of the aforesaid, as the revision petition deserves to be heard on merits by the respondent No. 3 therefore, this Court refrains from expressing any opinion on merits of the case. 13. As a result of the aforesaid, these writ petitions succeed and are allowed to the extent indicated above; the impugned order dated 15.4.2005 is quashed and set aside and the revision petitions submitted by the petitioners shall stand restored with the respondent No. 3; delay in filing the revision petition stands condoned and the respondent No. 3 is directed to consider the matters of merits. The parties shall appear before the respondent No.' 3 Additional Registrar (Appeals), Co-operative Societies, Jodhpur on 27.4.2006. 1 here shall be no order as to costs of these writ petition.Petition allowed. *******