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2012 DIGILAW 122 (HP)

Amar Chand Sehgal v. State of Himachal Pradesh

2012-03-23

SANJAY KAROL

body2012
Judgment Justice Sanjay Karol, J. (Oral) Mr. Harish Behl, learned counsel for respondent No.5 has placed on record order dated 1.9.2010, passed by Joint Registrar, Cooperative Societies, Shimla, titled as Sh. K.K. Kapoor v. The Mandi Urban Cooperative Bank Ltd; Mandi, H.P. It is quite apparent that award dated 14.11.2005, passed by the Arbitrator in Arbitration Case No.5 of 2005, titled as Mandi Urban Cooperative Bank Ltd. versus Shri Amar Chand Sehgal and others qua the private respondent No.5 Sh. K.K. Kapoor has been set aside. 2. Facts are not much in dispute. Petitioner Sh. Amar Chand Sehgal availed benefits of Cash Credit Limit from respondent No.4-bank. Sh. K.K. Kapoor respondent No.5 and Smt. Manoranjana Sehgal respondent No.6 stood guarantors. Persistent default in discharging the contractual obligations on the part of the petitioner resulted into nonpayment of a sum of `15,73,112.10 as on 22.12.2004. Since the amount was not paid, in spite of several demands made by the respondent-bank, arbitration proceedings, in accordance with the statutory rules/contractual obligations, were initiated. 3. In Arbitration Case No.5 of 2005, Sh. M.R. Sharma, (Ret. ARCS), Mandi, H.P., who was appointed as Arbitrator, after adjudicating the disputes passed final award dated 14.11.2005. The same was assailed by the petitioner before the Appellate Authority, primarily on the ground that opportunity for one time settlement was not afforded to him. His appeal was, however, rejected vide order dated 26.5.2006 (Annexure P-1). Petitioner preferred revision petition before the Joint Registrar (Credit Cooperative Societies) which stands dismissed in terms of impugned order dated 3.6.2008 (Annexure P-5). Impugned order reveals that all along, petitioner was requesting for one time settlement, in accordance with the Scheme of the respondent-Bank. 4. Notice in this petition was issued to the respondents. On 12.1.2012, following order was passed in the instant petition:- “Learned counsel for petitioner submits that petitioner is open for exploring the possibility of having one time settlement with respondent No.4. Without prejudice to the respective rights and contentions of all the parties and subject to outcome of the present petition, petitioner is directed to approach respondent No.4 within a period of two weeks from today. His case shall be independently examined by the competent authority in accordance with law, as per the applicable OTS Scheme. Action be taken within a period of four weeks thereafter. List on 12.3.2012 before appropriate Bench.” 5. His case shall be independently examined by the competent authority in accordance with law, as per the applicable OTS Scheme. Action be taken within a period of four weeks thereafter. List on 12.3.2012 before appropriate Bench.” 5. However, on 14.3.2012, petitioner, who was asked to appear before the Court made the following statement:- “Petitioner Sh. Amar Chand Sehgal, who is present in the Court, states that no amount is due and payable to respondent No.4-bank.” 6. Since according to the petitioner himself, no amount is due and payable to the bank, question of one time settlement, in accordance with the Scheme, as is so sought by him in this petition, therefore, does not arise for consideration at all. Petitioner has been found to be a persistent defaulter. In that regard proper adjudication process, in accordance with law, has taken place, with which no fault can be found. Public money has been utilized by him for his private use, which he must pay under all circumstances. 7. Petitioner is seeking a writ of certiorari. It is obligatory on the part of the petitioner to show that the authority whose order is sought to be reviewed has acted without jurisdiction or in excess thereof. Such writs can be issued inter alia under the circumstances where there is failure of justice; an error of law needs to be corrected. However, such error must be manifest on the face of record. The error must be of such a nature which strikes one on mere looking and does not need long drawn process of reasoning on points where there may conceivably be two opinions. 8. The Constitution Bench of the apex Court in Hari Vishnu Kamath versus Ahmad Ishaque and others, AIR 1955 SC 233, has culled out the following principles, for exercising power of Writ of Certiorari, under Article 226 of the Constitution of India: “With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari.” 9. This view stands subsequently reiterated by another Constitution Bench of the apex Court in Syed Yakoob versus K.S. Radhakrishanan and others, AIR 1964 SC 477. The principles have been consistently followed by the apex Court in Gujarat Steel Tubes Ltd. and others versus Gujarat Steel Tubes Mazdoor Sabha and others, (1980) 2 SCC 593; Surya Dev Rai versus Ram Chander Rai and others, (2003) 6 SCC 675; Assistant Commissioner, Income Tax, Rajkot versus Saurashtra Kutch Stock Exchange Limited, (2008) 14 SCC 171; Anoop Sharma versus Executive Engineer, Public Health, Division No.1, Panipat (Haryana), (2010) 5 SCC 497; and Sant Lal Gupta and others versus Modern Cooperative Group Housing Society Limited and others, (2010) 13 SCC 336. 10. In the given facts, it cannot be said that the petitioner’s case falls within the tests laid down by the apex Court, in the aforesaid decisions, warranting interference by this Court, in exercise of its extraordinary writ jurisdiction. Hence, petition needs to be dismissed. I do not find any reason to exercise any extraordinary writ jurisdiction in favour of the petitioner. There is neither any equity nor legally enforceable right for which petitioner can be granted relief. 11. With the aforesaid observations, the present petition stands dismissed. Pending applications also stand disposed of. Hence, petition needs to be dismissed. I do not find any reason to exercise any extraordinary writ jurisdiction in favour of the petitioner. There is neither any equity nor legally enforceable right for which petitioner can be granted relief. 11. With the aforesaid observations, the present petition stands dismissed. Pending applications also stand disposed of. It is clarified that dismissal of the petition shall in no manner imply that this Court has expressed any view/ judgment in relation to the order dated 1.9.2010 passed by Joint Registrar, Cooperative Societies in favour of private respondent No.5. To that extent, subject to further challenge of the said order, if any, rights of private respondent are protected.