IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7727 of 1994 For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge? NO ========================================================= AVAKHAL VIVIDH KARYAKARI SEVA SAHAKARI MANDALI LTD Petitioner(s) Versus PATEL HIRALAL AMARBHAI & 1 Respondent(s) ========================================================= Appearance :
MR VM PANCHOLI for Petitioner(s) : 1, MS MANISHA SHAH for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 30/01/2012 CAV JUDGMENT
1. By way of this petition under Article 227 of the Constitution of India, the petitioner society has challenged the judgment and order passed by the Board of Nominees, Vadodara dated 24.9.1984 in Lavad Suit No.1458 of 1977 and the judgment and order passed by the Gujarat State Cooperative Tribunal, Ahmedabad dated 15.1.1987 in Appeal No.200 of 1984 confirming the judgment and order of the Board of Nominees.
2. The facts arising out of this petition are that the petitioner is a Cooperative Society registered under the provisions of the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as “the Act” for the sake of brevity) and is engaged in advancing agricultural loan, distribution of pesticides and fertilizer etc. to its members for agricultural purpose. The respondent herein took loan from the petitioner society in the year 1974 in his own name as well as in the name of his son Subhashbhai Hirabhai Patel and his brother Manubhai Amarabhai Patel to the tune of Rs.95,496.45 including loan of Rs.32,480/ in his own name. As the respondent did not repay the loan by 12.2.1977, the society issued a demand notice calling upon the respondent to pay the outstanding dues of Rs.10,028.65. As the said notice was neither replied nor complied with, the another notice came to be issued by the society on 25.6.1977. However, the same was refused. It is the case of the petitioner society that in spite of several opportunities given to repay the loan amount as the respondent did not pay the outstanding amount, the society was constrained to file a suit for recovery of the said amount being Lavad Suit No.1458 of 1977 before the Board of Nominees at Vadodara for recovery of Rs.10,028.65.
3. It also transpires from the record that on 1.2.1977, the then President of the petitioner society Hirabhai Ravjibhai had given a blank letter duly signed by him to the then Secretary Ramanbhai Maganbhai Patel for the purpose of submitting the same to Baroda Central Cooperative Bank Ltd., Baroda for obtaining irrigation loan from the Bank. It is the case of the petitioner society that the respondent fraudulently procured the said letter from the then Secretary and misused the said blank letter duly signed by the then President to create a false and fabricated receipt of Rs.1,05,000/ with a writing to the effect that the society has received the said amount as outstanding amount towards loan of his son, brother as well as his personal loan. It is the case of the petitioner society that in fact the respondent did not pay any amount to the society and created false and fabricated receipt and other documents showing that the entire amount due to the society had been paid. It is also alleged that the respondent committed fraud with the society with dishonest intention for which a criminal complaint has been filed and the same is pending for trial before the competent Court. It is also the case of the petitioner society that on coming to know that such a fabricated receipt has been obtained by the respondent, the then President of the society inquired the same from the then Secretary and vide communication dated 30.3.1978 (Exh.75), it has been brought on record that the then Secretary was threatened by the respondent and coercively compelled the then Secretary Ramanbhai Maganbhai Patel to prepare receipt about making full payment to the society. It is also further the case of the petitioner society that similarly, fraudulent no due certificate (Exh.107) was also prepared, even though according to the President of the society, no such certificate has been signed by the President. It is, thus, the case of the petitioner society that the respondent has concocted the receipt, no due certificate and other number of documents to show that the entire loan amount stands repaid.
4. It is the case of the petitioner society that even oral evidence was led to prove that the respondent had never paid the total outstanding amount of Rs.1,05,000/. It is further the case of the petitioner society that the Board of Nominees, under complete misconception about its jurisdiction and without appreciating the oral and documentary evidence on record, by the impugned judgment and order dated 24.9.1984 has dismissed the Lavad Suit and the same has been confirmed by the Gujarat State Cooperative Tribunal by dismissing the appeal vide judgment and order dated 15.1.1987. Both these judgments are impugned in the present petition under Article 227 of the Constitution of India.
5. It also further transpires from the record that this petition was dismissed by this Court vide judgment and order dated 22.9.1995 against which Letters Patent Appeal No.1045 of 1995 was preferred. However, the said appeal came to be dismissed as the same was not maintainable in law vide order dated 17.4.1996. It transpires that thereafter, the petitioner preferred a Review Application being Misc. Civil Application No.777 of 1996 which came to be dismissed as no one appeared before this Court (Coram: N.N. Mathur, J.) vide order dated 20.11.1997. It is a matter of record that thereafter again an application was preferred being Misc. Civil Application No.880 of 2003 for review of the earlier order along with the prayer for condonation of delay. The said application was allowed by imposing cost of Rs.5,000/ vide order dated 19.1.2004 and Misc. Civil Application No.777 of 1996 was restored to file. The said Misc. Civil Application No.777 of 1996 was allowed vide judgment and order dated 1.3.2004 and the earlier order dated 22.9.1995 passed by this Court (Coram: N.N. Mathur, J.) was reviewed accordingly. It is also a matter of record that the present respondent filed a review being Misc. Civil Application No.1447 of 2005 challenging the order passed in Misc. Civil Application No.880 of 2003 and the said Misc. Civil Application came to be disposed of vide order dated 29.8.2007.
6. Heard Mr. V.M. Pancholi, learned advocate for the petitioner and Ms. Manisha Shah, learned advocate for the respondent.
7. Mr. V.M. Pancholi, learned advocate for the petitioner has taken this Court through both the impugned judgments. It is vehemently submitted that both the Courts below have not properly considered the fact that the respondent did not repay the loan amount due and payable by him. It is submitted that in spite of giving more than one notices, the respondent has never come out with a case that the loan amount has been paid. It is, therefore, submitted that from the conduct of the respondent itself, it is clear that the respondent never had an intention to repay the outstanding dues. It is submitted that the attempt on the part of the respondent to show that the loan has been repaid is nothing but an afterthought and in fact, has misused the blank letter signed by the concerned President. It is submitted that from the oral evidence adduced by the petitioner before the Board of Nominees and especially, the oral deposition of the then President of the society Hirabhai Ravjibhai Patel, Exh.67, oral deposition of Ramanbhai Maganbhai Patel, Exh.138, the then Secretary of the petitioner society as well as another witness Purushottambhai Patel Exh.162, which were examined on behalf of the petitioner society, it clearly transpires that the respondent has not repaid the amount as claimed for in the suit. It is submitted that thus, the Board of Nominees as well as the Gujarat State Cooperative Tribunal have not properly considered the depositions and the oral evidence adduced by the petitioner society. It is submitted that both the Courts below have wrongly relied upon the oral evidence adduced by the respondent and has wrongly relied upon the same. It is submitted that both the Courts below have committed an error in appreciating the documentary evidence Exh.75, whereby the then Secretary of the society has clearly stated in writing on 30.3.1978 that the respondent had under threat and coercion compelled the then Secretary to prepare receipt about making full payment to the society. It is submitted that similarly, the no due certificate, Exh.107 is also fraudulent. It is submitted that the petitioner society has filed a criminal complaint with regard to these two documents and the said criminal case is pending for its trial before the competent Trial Court.
8. Per contra, Ms. Manisha Shah, learned advocate for the respondent submitted that the Board of Nominees as well as the Gujarat State Cooperative Tribunal both have considered the oral as well as documentary evidence on record and after correct appreciation of the same, has passed the judgments impugned in the present petition. It is submitted that both the Courts below have not committed any error much less any error apparent on the face of the record which warrants interference by this Court under Article 227 of the Constitution of India. It is submitted that a false case has been filed against the respondent which is now aged 85 years. It is submitted that because of some enmity due to loss in election of the Gram Sabha, the then President of the society has initiated this litigation. It is submitted that in fact the respondent himself made inquiries about the outstanding with the society few days prior to 1.2.1977. It is submitted that the then Secretary informed that the total due is approximately around Rs.1,05,000/, which if paid on or before 31.3.1977, the respondent would be entitled to further loan amount from the society and therefore, the respondent paid the said amount on 1.2.1977 for which Kachcha receipt, Exh.139 was given to the respondent duly signed by the then Secretary as well as the then President of the society. It is submitted that in fact receipt at Exh.139 has been proved by way of deposition of the then President himself i.e. Hirabhai Ravjibhai Patel, who in his crossexamination, has admitted that it is his signature. Similarly, even the then Secretary has admitted in his crossexamination that it is his signature on the said receipt. It is submitted that no due certificate, Exh.157 is issued by the then Secretary of the society. It is submitted that the charge of the society which was recorded in the revenue entries was removed after serving notices under Section 135D of the Bombay Land Revenue Code and it would be evident from reading of Exh.154, 155 and 156 that such notices were received by the society by making necessary endorsement to the effect that the society had no objection in the entries mutated in favour of the respondent and that the endorsement of charge of the society be deleted from the revenue records. Upon such endorsement made by the then Secretary, the entires have been mutated on 1.11.1977. It is submitted that during pendency of the suit proceedings, an audit was carried out by Baroda Central Cooperative Bank and the audit report revealed that huge amounts had been misappropriated by the then Secretary, Ramanbhai Patel. Ms. Shah relying upon deposition of Chandubhai of Panchsheel Pesticides, Exh.202 submitted that the oral testimony of this witness clearly establishes the fact that the payment of entire dues have been made by the respondent on 1.2.1977 as there are cross entries which tallies with each other. Ms. Shah similarly has relied upon the oral deposition of Madhurbhai, Exh.219 to show that the payment of Rs.51,000/ was made on 31.1.1977 towards cotton trading. It is submitted that both the Courts below have considered these aspects and have noted that the dates of such payments match with the case of the respondent of having made payment of Rs.1,05,000/. It is submitted that the case of the society that the receipt at Exh.139 is forged, is in fact falsified from the evidence of the petitioner itself since the petitioner, in his deposition at Exh.67, clearly admits to his signature. Similarly, even the then Secretary of the society in his own deposition at Exh.138 admits that the receipts were in his hand duly signed by him. It is submitted that the case that the blank papers were given by the then President to the then Secretary and that the same were misused by the respondent is rightly not believed by both the Courts below. It is submitted that from the oral deposition of the then Secretary, it has clearly come on record that the respondent never interfered in the management of the society and that the respondent had no reason to take the blank papers from the Secretary and misuse it. It is submitted that both the Courts below have rightly not believed the case of the then Secretary that he was forced to write such a letter. However, it is a matter of record that no such fact was brought to the notice of President, Talati, Registrar or any of the authorities. It is submitted that if, as stated by the petitioner society, a sum of Rs.1,05,000/ was due and payable, the society could have filed similar suit against the brother as well as son of the respondent. However, no such suit is filed for the balance amount of Rs.95,000/ whereas the present suit is filed for a sum of Rs.10,028.65 and the present petitioner who is at present aged about 85 years is dragged into this endless litigation. It is submitted that the letter of the then Secretary, Exh.169 clearly spells out that the then President pressurized the then Secretary with dire consequences if he did not deny the receipt. It is submitted that the respondent has proved the date on which the payment was made and as the accounts of the society was not ready, Kachcha Pavati was given by the then Secretary and the then Secretary had also given no due certificate, according to which, revenue entries were mutated, as aforesaid. It is submitted that both the Courts below have rightly appreciated the evidence on record. It is submitted that only because the notices were not replied, no adverse inference can be drawn against the petitioner. Lastly, it is submitted that both the Courts below have correctly appreciated the evidence on record and after examining every contentions raised by the petitioner society, the suit as well as the appeal have been rightly dismissed. It is, therefore, submitted that the petition is devoid of merits and the same deserves to be dismissed.
9. I have gone through the judgment and order dated 24.9.1984 passed by the Board of Nominees, Vadodara in Lavad Suit No.1458 of 1977 and the judgment and order dated 15.1.1987 passed by the Gujarat State Cooperative Tribunal, Ahmedabad in Appeal No.200 of 1984 and I have also considered the rival submissions made by both the sides. Both the Courts below have threadbare considered the evidence on record. The specific case of the petitioner society that the receipt of payment of Rs.1,05,000/ at Exh.139 being forged and fabricated is rightly not believed by both the Courts below. The Courts below after considering the oral deposition at Exh.67 as well as the oral deposition at Exh.151 and 152 have rightly weighed the said evidence and have not committed error in disbelieving the case of the society. It further transpires from the record that the respondent has not only been able to prove that the receipt at Exh.139 is issued by the society, but has also proved the fact that from where did the respondent arranged the said amount paid to the society. The Board of Nominees, considering the oral deposition of the witness of the respondent at Exh.202, Chandubhai Patel, has rightly come to the conclusion that the respondent withdrew the deposits made in the concern named – Panchsheel Pesticides belonging to the said witness Chandubhai Patel in order to repay the loan of the society. Similarly, the petitioner society has not been able to prove that the no due certificate issued under the signature of the then Secretary is forged or fabricated. The Board of Nominees, considering the facts based on correct appreciation of evidence on record, has correctly come to the conclusion that while considering the application for deletion of the endorsement in the revenue records, no objection is raised by the then Secretary while making endorsement to the said effect in response to the notice issued by the competent authority of Revenue Department under Section 135D of the Bombay Land Revenue Code. It is a matter of record that such entries came to be mutated on 1.11.1977. It is also a matter of record that the total amount due and payable from the respondent, his son as well as his brother to the tune of Rs.1,05,000/, even according to the petitioner, however, the suit was filed only against the present respondent for Rs.10,028.65. Upon perusing the judgment and orders impugned in the present petition, this Court is of the opinion that both the Courts below have threadbare examined the evidence on record and have committed no error in passing the judgment and orders impugned in the present petition. The Board of Nominees has discussed every piece of evidence which was adduced before it and after correctly weighing the same, has dismissed the suit. The Gujarat State Cooperative Tribunal has also considered and reappreciated the evidence on record and has committed no error in dismissing the appeal. The petitioner society has not been able to prove the very genesis of his case before the Board of Nominees to the effect that the receipt as well as no due certificate issued are forged and/or fabricated and that the then Secretary was forced to write the said writing in form of a receipt and hence, both the Courts below have committed no error much less any error apparent on the face of the record which warrants interference of this Court under Article 227 of the Constitution of India. Only because the notice issued by the society for recovery of the suit amount is not replied by the respondent cannot be treated as an acquiescence on the part of the respondent. Having considered the aforesaid aspects, the judgment and orders impugned in the present petition do not require any interference of this Court under Article 227 of the Constitution of India and the petition fails and is hereby dismissed. Rule discharged. Parties to bear their own costs.
[R.M.CHHAYA, J.] mrpandya