HON’BLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION No.18684 of 2009 Date : -07-2014 Between:
C.H.Sudhakar Raju, S/o Sri Purnachandra Raju, Aged about 36 years, R/o. Flat No.303, Sundar Sai Plaza, Anandnagar, Khairatabad, Hyderabad … Petitioner and Tirumala Coop. Urban Bank Ltd., Represented by Branch Manager, Abids, Hyderabd and two others.
… Respondents HON’BLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION No.18684 of 2009 O R D E R:
This writ petition, filed under Article 226 of the Constitution of India, challenges the order dated 03.08.2009 passed by the Andhra Pradesh Cooperative Tribunal, Hyderabad, dismissing CTA.No.238/2003 filed by the petitioner herein under Section 76 of the Andhra Pradesh Cooperative Societies Act, 1964 (hereinafter called ‘the Act’).
2. Heard Sri Vinod K. Reddy, learned counsel for the writ petitioner, Sri N.Ravi Prasad, learned counsel for the first respondent and the learned Government Pleader for Co-operation for the second respondent apart from perusing the material available on record.
3. The pleaded case of the petitioner is as under:
(A) Petitioner submitted an application to the first respondent for grant of loan of Rs.10,00,000/- on 25.01.1999 and after scrutinizing the said application, the first respondent bank sanctioned loan to an extent of Rs.8,00,000/- on 17.02.1999 payable in 10 equal monthly installments of Rs.87,710/- each. Petitioner also mortgaged immovable property for clearing the said loan by way of executing a Registered Mortgage Deed. Petitioner was also a subscriber of three chits i.e., two chits of Rs.5,00,000/- and one chit of Rs.1,00,000/- with M/s. Thirumala Balaji Chit Fund Private Limited, which is a sister concern of the first respondent bank and one Chandra Sekhar is the Chairman of both the first respondent bank and the said chit fund company and the petitioner also paid all the dues towards the said chits on 23.01.1999 and on such compliance, as per the directions of the Managing Director and Chairman of the first respondent and after complying all the requirements of the first respondent bank, the loan was disbursed vide SEOD No.32 Loan Account.
(B) Petitioner made payment to the first respondent bank by way of cash and cheques on various dates to a tune of Rs.10,32,165/- and despite his repeated requests, the first respondent bank did not provide the Statement of Loan Account to know the actual due under SEOD.No.32 Loan Account and the petitioner approached the first respondent bank on 21.02.2011 offering to settle the loan account under SEOD No.32 and the first respondent bank demanded to pay an amount of Rs.6,45,000/- for closure of loan account SEOD.No.32 without furnishing statement of account. Petitioner accordingly paid a sum of Rs.6,45,000/- and insisted the first respondent for release of mortgaged documents, bank cheques ten in number and other documents i.e., pro-notes etc., executed at the time of sanction of loan by the first respondent bank and the first respondent issued only a certificate dated 24.02.2001, stating that the loan amount of Rs.8,00,000/- was discharged by cash payments. Petitioner got issued two legal notices on 02.07.2001 to the first respondent bank as well as to M/s. Thirumala Balaji Chit Fund Private Limited. Responding to the same, M/s. Thirumala Balaji Chit Fund Private Limited issued a reply dated 20.07.2001 admitting its liability, but the first respondent, despite receipt of the same did not return the mortgaged documents which prompted the petitioner to file a private complaint in SR.No.15817/2001 dated 19.12.2001 before the IV Metropolitan Magistrate, Hyderabad and the learned Magistrate referred the same to the concerned police for investigation. The first respondent also initiated criminal prosecution by filing CC.Nos.445 and 485 of 2001 before the XVIII Additional Chief Metropolitan Magistrate, Hyderabad for the offence under Section 138 of the Negotiable Instruments Act and the petitioner got the same stayed in Crl.R.C.Nos.1192 and 1193 of 2008 before this Court. The first respondent filed ARC.322/2001-J1 on 09.07.2001 and the arbitrator passed an ex parte order dated 19.11.2002 and on appeal in CTA.No.262/2002 before the third respondent/Tribunal, the same was set aside and the matter was remitted back on 19.07.2002 for fresh consideration to the arbitrator and once again an order was passed by the arbitrator in ARC.25/2003 and the same was set aside in CTA.No.238/2003 by the Tribunal with a direction to pay the petitioner the amounts due under the chit accounts and assailing the same the first respondent bank filed WP.No.14438/2006 and the same was set aside and the matter was remitted back to the Tribunal with a direction to hear the case afresh without bearing in mind about the observations made in WPMP.No.35075/2006 in W.P.No.14438/2006. The Tribunal by virtue of an order dated 03.08.2009 dismissed the said CTA.238/2003.
4. Calling in question, the validity and the legal acceptability of the said order passed by the A.P. Cooperative Tribunal, Hyderabad in CTA.No.238/2003 dated 03.08.2009, the present writ petition has been filed.
5. This Court, while ordering Rule Nisi on 11.09.2009 in WPMP.No.24442/2009 granted interim suspension of the interim order subject to the petitioner depositing a sum of Rs.5,00,000/- within four weeks.
6. A counter affidavit is filed by the first respondent bank, denying the averments and allegations in the writ petition and also in the direction of justifying and supporting the impugned orders.
7. Contentions of Sri Vinod K.Reddy, learned counsel for the petitioner:
(a) The orders passed by the Tribunal in CTA.No.238/2003 dated 03.08.2009 confirming the orders of the arbitrator are erroneous, contrary to law, weight of evidence and opposed to the very spirit and object of the provisions of the A.P. Cooperative Societies Act, 1964 and the Rules framed therein.
(b) The Tribunal did not consider Exs.B.1 and B.15 from proper perspective and shifted the burden of proof erroneously on the petitioner contrary to the provisions of the Indian Evidence Act.
(c) The findings on SEOD Loan Account No.18 are erroneous and contrary to law.
(d) The Tribunal ought to have rejected the evidence of PW.1 as he was examined on behalf of the bank without any proper authority. The Tribunal did not seek for any opinion of the expert on Ex.A.1 and delay if any in filing Exs.B.1 and B.15 is of no consequence.
(e) The approach of the Tribunal is neither judicious nor pragmatic and the Tribunal rendered the judgments without properly appreciating the evidence on record.
8. Contentions of Sri N.Ravi Prasad, learned counsel for the first respondent bank:
(i) The order impugned is as per the provisions of the A.P. Cooperative Societies Act, 1964 and the Rules framed therein.
(ii) The findings of the Tribunal on Exs.B.1 and B.15 are as per law and the provisions of Indian Evidence Act.
(iii) Non-impleadment of the chit fund company is fatal to the case of the petitioner.
(iv) Under Section 4 of the Bankers Book Evidence Act, 1891, Ex.A.8 statement of account has to be presumed to be correct and since the petitioner did not dispute the same the burden lies on the petitioner to remove the cloud on Ex.B.1.
(v) Criminal Petitions 9370 and 9378 of 2009 were dismissed by this Court.
(vi) The finding of fact recorded by the Tribunal which is a fact finding authority cannot be disturbed by this Court under Article 226 of the Constitution of India.
9. In the light of the pleadings, submissions and contentions, now the questions which fall for consideration of this Court under Article 226 of the Constitution of India are:
(i) Whether the order passed by the Tribunal is in accordance with law and whether the Tribunal appreciated the oral and documentary evidence from proper perspective?
(ii) Whether the order impugned suffers from any infirmity and perversity and whether it warrants any interference of this Court under Article 226 of the Constitution of India?
(iii) Whether the petitioner is entitled for any relief?
10. In the instant case, there is absolutely no dispute with regard to the factum of granting loan of Rs.8,00,000/- by the first respondent bank in favour of the petitioner herein in the year 1999. The defense of the petitioner, as evident from the pleadings on record, is the complete discharge of the loan. The jurisdiction of this Court under Article 226 of the Constitution of India for interference in the matter of this nature is very limited and is available only in the cases where the conclusions and findings arrived at by the fact finding authorities are based on no evidence and are perverse and this Court under the powers of judicial review cannot sit over the orders of the fact finding authorities as an appellate authority. Therefore, within the said permissible limits and parameters only the issue involved in the present writ petition is required to be considered. Obviously, the entire case of the petitioner herein rests on Exs.B.1 and B.15 documents. Ex.B.1 is a letter dated 24.02.2001 alleged to have been given by the first respondent bank showing complete discharge of the loan of the petitioner and Ex.B.15 dated 24.02.2001 is a counterfoil. During the course of the proceedings before the Tribunal, PW.1 was examined and Exs.A.1 to A.55 were marked and RW.1 was examined and Exs.B.1 to B.34 were marked.
11. Keeping in view and basing on the material available on record, the Tribunal framed the following points for consideration:
1. Whether the award passed in ARC.25/2003 is sustainable?
2. Whether Ex.B.1 discharge letter is true, valid and binding?
3. To what relief?
12. The Tribunal, while assigning cogent, valid and convincing reasons refused to give any credence to Exs.B.1 and B.15 which are the basis and foundation for the case of the petitioner herein. As rightly observed by the Tribunal Ex.B.1 document given by the first respondent bank when compared with Ex.A.1 produced by the respondent bank vividly shows that two sentences were inserted in the said letter. Therefore, the said finding recorded by the Tribunal, in the considered opinion of this Court, cannot be found fault with. The Tribunal at paragraph 14 of the impugned order found that the typing pertaining to discharge sentences was with a different impression than that of the other letters found in the letter. On perusal of the said document, this Court is also of the same opinion and concurs with the finding rendered by the Tribunal. On perusal of Ex.B.1 document made available before this Court manifestly shows that left-hand side margin of the last two sentences in the said letter are also not tallying with the upper portion of the letter. At paragraphs 17 and 18 of the impugned order, the Tribunal held that in the event of any dispute about the very existence of SEOD Account No.18 and transaction therein the petitioner has to seek appropriate remedy before the appropriate authorities regarding the same and the same has nothing to do with the present transaction since it is the stand of the petitioner that he discharged the amounts and not disputed the borrowing of the same and the execution of the document for availing this loan. The Tribunal also in clear and unequivocal terms held that the repayments that were shown in Exs.B.1 and B.15 cannot be believed for the reason that the corresponding documents filed by the first respondent bank never disclose the discharge entries. The Tribunal also observed that the petitioner never filed any written statement in spite of giving opportunity nor he discharged the burden of proof of Exs.B.1 and B.15. Petitioner herein cannot dispute the locus of PW.1 to represent the matter since he is the manager of the bank as rightly held by the Tribunal at paragraph 18 of the impugned order. The learned Arbitrator passed the award Ex.45 dated 19.11.2001 and there was no impediment for the petitioner herein to file Exs.B.1 and B.15 before the Arbitrator. The Tribunal also recorded a finding on SEOD Account No.18 in so many words at paragraph 24 of the impugned order.
13. It is to be noted at this juncture that in W.P.No.11428/2006 filed by the first respondent bank, this Court passed an order dated 08.12.2006, remanding the matter for fresh consideration to the Tribunal. While remanding the matter, this Court made observations against Exs.B.1 and B.15 documents stating that the same are fabricated. It is also a fact that the petitioner herein subsequently filed WPMP.35075/2006 in W.P.No.11428/2006 and this Court on 02.01.2007 passed the following order:
“The learned counsel for petitioner in this petition Sri S.V.Bhatt submits that unless and until it is recorded in the judgment by this Court that the observations therein do not have any bearing on the merits of the case, the Tribunal may get carried away by such observations while deciding the matter.
In view of the above submission, I am of the opinion that whenever a matter is remanded for fresh consideration, the observations made by this Court are only prima facie findings for the purpose of adjudicating that case and such observations will not have any bearing on the merits of the case while deciding the matter afresh. It is thus clarified that Tribunal shall decide the case on its own merits uninfluenced by any of the observations made by this Court.
The WPMP is accordingly disposed of.”
14. At this juncture, it may be appropriate and apposite to refer to the Judgments of the Hon’ble apex Court with regard to the scope of judicial review under Article 226 of the Constitution of India.
15. In the case of SYED YAKOOB V.K.S. RADHAKRISHNAN AND
[1]
OTHERS AIR 1964 477, the Hon’ble apex Court at paragraph 7 of
the judgment, held as under:
“7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or Tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque : [1955]1SCR1104 ), Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam : [1958]1SCR1240 , and Kaushalya Devi v. Bachittar Singh : AIR1960SC1168 .”
In the case of S.R. BOMMAI AND OTHERS ETC. ETC. V.UNION OF
[2]
INDIA AND OTHERS ETC. ETC. , the Hon’ble apex Court at
paragraph 133, held as under:
“133. In the judicial review in the field of administrative law and the constitutional law, the courts are not concerned with the merits of the decision, but with the manner in which the decision was taken or order was made. Judicial review is entirely different from an ordinary appeal. The purpose of judicial review is to ensure that the individual is given fair treatment by the authority or the Tribunal to which he has been subjected to. It is no part of the duty or power of the Court to substitute its opinion for that of the Tribunal or authority or person constituted by law or administrative agency in deciding the matter in question. Under the thin guise of preventing the abuse of power, there is a lurking suspicion that the court itself is guilty of usurping that power. The duty of the court, therefore, is to confine itself to the question of legality, propriety or regularity of the procedure adopted by the Tribunal or authority to find whether it committed an error of law or jurisdiction in reaching the decision or making the order. The judicial review is, therefore, is a protection, but not a weapon. The Court with an avowed endeavour to render justice, applied principles of natural justice with a view to see that the authority would act fairly. Therefore the grounds of illegality, irrationality, unreasonableness, procedural impropriety and in some cases proportionality has been applied, to test the validity of the decision or order apart from its ultra vires, mala fides or unconstitutionality. Initially in the process of judicial review the court tested the functions from the purview of the "source of power". In the course of evolution of judicial review it tested on the "nature of the subject matter", "the nature of the power" "the purpose" or "the indelible effect" of the "order or decision on the individual or public. The public element was evolved, confining initially judicial review to the actions of State, Public authority or instrumentality of the State but in its due course many a time it entrenched into private law field where public element or public duty or public interest is created by private person or corporate person and relegated purely private issues to private law remedy. This Court relaxed standing in favour of bona fide persons or accredited Associations to espouse the cause on behalf of the under privileged or handicapped groups of persons. Interpreting Articles 14 and 21, tested administrative orders or actions or process on grounds of arbitrariness, irrationality, unfairness or unjustness. It would thus be apparent that in exercising the power of judicial review, the constitutional Courts in India testing the constitutionality of an administrative or constitutional acts did not adopt any rigid formula universally applicable to all occasions. Therefore, it serves no useful purpose to elaborately consider various decisions or text- books referred to us during the course of hearing. Suffice to state that each case should be considered, depending upon the authority that exercises the power, the source the nature or scope of the power and indelible effects it generates in the operation of law or effects the individual or society without laying down any exhaustive or catalogue of principles. Lest it would itself result in standardised rule. To determine whether a particular policy or a decision taken in furtherance thereof is a fulfilment of that policy or is a accordance with the Constitution or the law, many an imponderable feature will come into play including the nature of the decision, the relationship of those involved on either side before the decision was taken, existence or non-existence of the factual foundation on which the decision was taken or the scope of the discretion of the authority or the functionary. Supervision of the court, ultimately, depend upon the analysis of the nature of the consequences of the decision and yet times upon the personality of the authority that takes decision or individual circumstances in which the person was called upon to make the decision; acted on and the decision itself.”
In the case of MOHD. SHAHNAWAZ AKHTAR AND ANOTHER V. FIRST ADDITIONALA DISTRICT JUDGE, VARANASI AND
OTHERS
[3]
, the Hobn’ble Supreme court reiterated the same view.
16. In view of the reason that the Tribunal thoroughly and meticulously considered the material available on record, this Court in exercise of power of Judicial review under Article 226 of the Constitution of India, by any stretch of imagination, cannot disturb the findings recorded by the Tribunal which is a fact finding authority. This Court also on perusal of Exs.B.1 and B.15 documents and other material available on record, is of the considered opinion that the petitioner herein failed to discharge his burden of proving the complete discharge of the loan amount. This Court is also of the opinion that in the light of the principles and parameters propounded by the Hon’ble apex Court in the above referred judgments, there cannot be any interference by this Court under Article 226 of the Constitution of India with the findings of fact recorded by the Tribunal.
17. For the aforesaid reasons and having regard to the principles laid down by the Hon’ble apex Court in the above referred judgments, this Court finds no reason to interfere with the orders passed by the Tribunal. This Court also finds that there are absolutely no merits in the case of the writ petitioner and the writ petition is liable to be dismissed.
18. Accordingly, the writ petition is dismissed. As a sequel, miscellaneous petitions if any, also stand disposed of. No costs.
A.V.SESHA SAI, J Date: .07.2014 grk HON’BLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION No.18684 of 2009 Date : -07-2014 grk
[1] AIR 1964 SC 477
[2] AIR 1994 SC 1918
[3] (2010) 5 SCC 510