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2012 DIGILAW 324 (JK)

Shiv Kumar v. Cooperative Supply and Marketing Federation Ltd.

2012-06-07

Sanjay Gupta

body2012
1. This revision petition has been directed against the order of Registrar Cooperative Societies, Jammu dt. 18.4.2009, by virtue of which, petitioner has been held willful defaulter and accordingly his appeal against the order of Addl. Registrar Cooperative Societies, Jammu has been dismissed. 2. Petitioner has challenged the impugned order on the grounds that the Court below has failed to exercise its jurisdiction, in its letter and spirit. That Court below did not provide any chance to lead evidence. That order impugned has been passed in clear violation of principle of natural justice. Brief facts of the case are that society -- respondent herein, filed an arbitration application in the Court of Registrar Cooperative society, Jammu on 31.8.1995 under section 63/64 of cooperative society act. This petition was transferred to Add. Registrar on 12.9.1995. This petition was filed against petitioner herein (Ex sales man JAKFED sales centre Bhaderwah) for recovery of Rs. 1,21,160.42, on account of sale proceed of fertilizer and rice. 3. Add. Registrar decided the petition on 20.4.1996 and Shiv Kumar- Petitioner herein, was directed to restore Rs. 1, 21,160.42 along with interest @ 17% per annum w.e.f. 1.11.1994, as sale proceed of rice and fertilizer. This petition was decided in exparte and thereafter, Petitioner applied for setting aside ex-party award passed by the Court on 24.4.1996, in an arbitration petitioned filed by respondent. In that application petitioner stated that ex-party award was passed in violation of legal procedure and against principle of natural justice. Petitioner- Shiv Kumar, filed petition on 27.10.1999, and exparte award was set aside on 19.10.2001. Thereafter it appears that, Arbitration petition was dismissed due to non persecution on 7.6.2003. Restoration application was also dismissed due to non prosecution on 24.7.2004. Another application was filled by society for restoration of previous application on 30.7.2004. To this application petitioner herein filled objections. Thereafter, it appears that Petitioner -- herein absented and court accordingly restored the main arbitration petition of respondent on 19.3.2005 and case was reopened. Despite several notices, Petitioner -- Shiv Kumar did not appear and thereafter award was passed on 24.9.2005 in exparte again. Order dt. 20.4.1996 of recovery was restored. 4. Petitioner herein filled an application for setting aside this award before Add. Registrar on 10.2.2007 on various grounds, but Add. Registrar dismissed the application on 29.3.2008. 5. Despite several notices, Petitioner -- Shiv Kumar did not appear and thereafter award was passed on 24.9.2005 in exparte again. Order dt. 20.4.1996 of recovery was restored. 4. Petitioner herein filled an application for setting aside this award before Add. Registrar on 10.2.2007 on various grounds, but Add. Registrar dismissed the application on 29.3.2008. 5. Petitioner assailed the order dt 29.3.2008, before court of Registrar by filling appeal on 6.12.2008. But court of Registrar also dismissed the appeal on 18.4.2009. Court held that appeal is time barred and petitioner has failed to lead any sufficient material for setting aside order of Add. Registrar. 6. Hence present revision. 7. Heard counsels for parties and written argument. Counsel for petitioner has elaborated all grounds taken in memo of revision petition, whereas respondent has argued that petitioner has misappropriated huge money since more than 17 years and has paid nothing. 8. I have given my thoughtful consideration to while aspects of matter. Main argument of counsel for petitioner is that, he has not been heard. This argument is not tenable on the ground that, petitioner is prosecuting his case since 24.10. 1999, when he filled application for setting aside exparte award before Add. Registrar. It is the petitioner, who remained negligent and evasive in perusing his case. This finding is concurrent finding of two court below. 9. Reasonable opportunity of being heard have been equated with principle of natural justice, which means an opportunity to defend the case. It has been held in catena of judgments, that court while deciding any matter should provide reasonable opportunity of being heard to parties. It does not means that court should on each and every date issues notice to party to appear before court for pleading his case. For prudent and honest party, a single notice is enough. 10. In present case petitioner is not diligent and honest in prosecution of his case. Because Add. Registrar passed order on 29.3.2008 and he filed appeal before Registrar on 6.12.2008, more than 8 months, whereas period for filling appeal was 90 days as per section 159 of cooperative society Act. Registrar passed the order on 18.4.2009 and present revision has been filled on 20.10.2009 after more than 6 months. 11. Because Add. Registrar passed order on 29.3.2008 and he filed appeal before Registrar on 6.12.2008, more than 8 months, whereas period for filling appeal was 90 days as per section 159 of cooperative society Act. Registrar passed the order on 18.4.2009 and present revision has been filled on 20.10.2009 after more than 6 months. 11. I have also gone through the pleading narrated in appeal and revision petition; there is nothing substantial with regard to accusation leveled by respondent against petitioner, with regard to misappropriation of sale precede of rice and fertilizer. Petitioner has misused process of law by remaining absent from court proceeding and filling application lately, for prolonging the recovery process. 12. Law rescues those people, who are prudent and diligent in prosecuting their case. In present case petitioner is neither diligent nor a prudent person. 13. This court derives power of revision in term of section 160(1) of J & K Cooperative Society Act 1989. In revision only legality and propriety of order under challenge is be seen. Legality means, as to whether order is consistent with law governing the matter. Propriety means, as to whether order passed by court, is appropriate to the circumstance of case and court while passing order was having jurisdiction vested under law to pass order. Order based on finding of facts cannot be disturbed, unless finding is contrary to the facts gathered during proceeding. In present case counsel for petitioner has failed to demonstrate any defect in jurisdiction of court below in passing the order and also failed to point out any legal defect in the order. 14. In view of what has been discussed, the order impugned does not suffer from any legal defect. This revision petition, accordingly is dismissed. Record of court below is sent back along with order. 15. File of this court shall be consigned to records after due compilation.