Ram Parkash v. Assistant Registrar, Cooperative Societies, Hansi & Ors.

Judgment

1. This regular second appeal no.1225 of 1986 was admitted for hearing on 9.9.1986 by this Court against the Judgment and decree dated 5th March 1986, accepting the appeal and dismissing the suit of the

plaintiff decreed by the Sub Judge (Ist Class) Hansi, vide judgment and decree dated 24.09.1985.

2. The plaintiff Ram Parkash filed civil suit no.526 of 1984, against the Assistant Registrar, Cooperative Societies, Hansi; the Dhanni Ghati Cooperative Loan & Services Society Ltd. Hansi and the Executive Officer, Hansi for prohibitory and mandatory injunction against the defendants to the effect that they be restrained from recovering an amount of Rs.3000 on the basis of the Award dated 31.05.1984. It is averred in the plaint that Nebh Raj father of Ram Parkash plain tiff was the member of the Society, who expired lon 18.09.1984. A sum of Rs.3000 is shown to had been due towards the deceased Nebh Raj, whereas Jasbir Singh pro forma RSA No.1225 of 1986 defendant is shown to be the guarantor of the deceased. It is pleaded that since the defendants had not choosen to recover the amount within three years from the date of giving the loan, the defendant society had no right to recover the same.

3. The defendants contested the suit inter alia on the grounds that the civil court has no jurisdiction to entertain the present suit; the plaintiff being the legal heir of the deceased is liable to pay the loan amount and no prior notice under section 79 of the Punjab Cooperative Society Act, 1961 has been served upon the defendants.

4. From the pleadings of the parties the following issues were framed by the learned trial court:

1. Whether the defendants no.1 to 3 are not entitled to recover the impugned amount from the plaintiff and defendant no.4 as alleged? OPP

2. Whether the suit is not maintainable in the present form? OPD

3. Whether the plaintiff has no right to file the present suit? OPD

4. Whether the suit of the plaintiff is bad for want of notice u/s 79 of the Cooperative Societies Act, 1961? OPD

5. Whether the suit is not maintain able in view of section 82 of the aforesaid Act? OPD

6. Whether the plaintiff is not entitled for any relief, in view of section 67 A sub-section 4 of the aforesaid Act? OPD

7. Whether the civil court has no jurisdiction to entertain the suit? OPD RSA No.1225 of 1986

8. Whether the plaintiff has not come to the court with clean hands and as such, is not entitled for discretionary relief of injunction? OPD

9. Whether the suit is bad for want of proper court fee? OPD

10. Relief

5. The learned Sub Judge (Ist Class) Hansi, decreed the suit permanently restraining the defendants from recovering the amount of Rs.3000 along with interest from the plaintiff vide judgment and decree dated 24th September, 1985.

6. Aggrieved against the judgment and decree of Sub Judge ( Ist Class), Hansi dated 24th September, 1985, the Dhani Ghati Co-operative Credit and Sewa Samiti Ltd. Hansi preferred Civil appeal no.171of 1985, which was accepted on 5.8.1986 reversing the judgment and decree of the Sub Judge I class, Hansi and dismissing the suit of the plaintiff.

7. Ram Parkash plaintiff appellant has come up in this regular second appeal.

8. No substantial question of law has been proposed by the appellant to be decided in this regular second appeal. However, this Court feels that the only point for determination in this appeal is as to “Whether the impugned judgment and decree passed by the Ist Appellate Court is perverse based on misreading of law?

9. None has caused appearance on behalf of the appellants. This Court has no other option but to decide the regular second appeal on merits.

10. In the grounds of appeal no substantial question of law has been framed. It is pleaded in the grounds of appeal that the Award Ex PK is invalid as the plaintiff appellant has not inherited any property or estate RSA No.1225 of 1986 from his deceased father, so he is not liable to pay this amount and that no recovery could be made after two years under section 22 of the Punjab Cooperative Societies Act.

11. The learned AAG argued that the judgment of the Ist appellate Court is well reasoned.

12. This Court has heard the learned counsel for the respondent- State of Haryana and carefully gone through the entire record of the trial court.

13. The plaintiff appellant has mainly challenged the Award Ex. PK, dated 31.05.1984, passed by the Arbitrator. From the perusal of the award Ex.PK, it is made out that Nebh Raj, the father of the plaintiff appellant took a loan of Rs.3000 from the Society being a member as is proved on record by the plaintiff himself by producing pass book Ex.PA. The plaintiff appellant himself and Jasbir Singh stood guarantor for Nebh Raj. Nebh Raj expired on 18.09.1974 as is apparent from Ex. PJ death certificate of Nebh Raj. As per the Ex.PJ, death certificate of NebhRaj, he died on 18.09.1974. After the death of the principal debtor it is the liability of the guarantors to pay the debts. When the guarantors failed to repay the loan, the matter was referred to the Arbitrator by the Assistant Registrar, Cooperative Societies, Hansi vide letter No. 1839-40 dated 27.04.1984. The arbitration case was heard by the Arbitrator on 31.05.1984. Ram Parkash plaintiff appellant appeared before the Arbitrator as son and guarantor of the deceased. Jasbir Singh the second guarantor did not appear before the Arbitrator and refused to accept registered notice sent by the Arbitrator. The plaintiff appellant pleaded before the Arbitrator that as he did not inherit any estate from his deceased father, so he is not liable to pay the loan RSA No.1225 of 1986 amount. After hearing both the parties, the Arbitrator passed an award of Rs.6050/- against both the guarantors to repay the loan amount in equal shares. Another guarantor did not prefer any appeal, revision or civil suit against this award Ex.PK.

14. In this case, it is proved that there existed bonafide dispute between the parties, so the matter was referred to the Arbitrator under section 55 of the Act. The Arbitrator after hearing passed a legal and valid award Ex.PK against the guarantors. This award Ex.PK cannot be said to be nuility because it was passed by a duly competent arbitrator after affording the full opportunity of hearing to the affected parties. The loan cannot be said to be time barred as per section 22 of the Act, as here is a case where the plaintiff admittedly stood guarantor to the loan advanced to his deceased father Nebh Raj. It becomes the pious duty of the plaintiff appellant to repay the loan amount taken by his father not being a son but also as a guarantor. On the death of the principal debtor, the plaintiff cannot cease to be a guarantor. Section 22 of the Act is applicable only in those cases where there is no guarantor of the loan advanced to a deceased member and the estate of the deceased member would be liable up to two years. In other words, after two years, no amount could be recovered from the estate of the deceased. But here the case is quite different. Admittedly, the plaintiff appellant is not only a guarantor but also the son of the deceased. So, the arbitrator was within his jurisdiction to pass award Ex PK against both the guarantors holding them equally responsible to repay the loan amount in equal shares.

15. Now the second question arises as to whether the present suit is maintainable in the Civil Court. Section 82 of the Act expressly bars the RSA No.1225 of 1986 jurisdiction of the civil court, wherein it is provided that no civil or revenue court shall have any jurisdiction in respect of any dispute required under section 55 to be referred to the Arbitrator. The party aggrieved by the award is required to take resort to the remedies provided by the Act itself. An appeal lies to the higher authorities against the award of the Arbitrator, which, none of the guarantors had availed of. Then I hold that the present suit filed by the plaintiff appellant is not maintainable in the civil court especially when the efficacious remedy is provided in the Act by way of appeals, revisions etc.

16. The judgment and decree of the learned Ist appellate court is well reasoned and there is no scope to interfere in it and the same are affirmed in this appeal.

18. No other question arises for determination of this Court. Keeping in view the above discussion, there is no merit in this regular second appeal, which is hereby dismissed with costs.

27.9.2011 Mks (JITENDRA CHAUHAN) JUDGE Note: Whether to be referred to the Reporter ? Yes / No