Rajinder Singh v. State of Punjab & Ors.

Present: Mr. I.S. Saggu, Advocate for the petitioner. Mr. Anil Kumar Sharma, Additional AG, Punjab for respondents No.1 and 3. Mr. B.D.S. Dhaliwal, Advocate for respondents No.2 and 4. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present writ petition has been filed praying that a writ in the nature of mandamus be issued directing the respondents to redeem the land of the petitioner, which was mortgaged with respondent No.4- Bhundri Cooperative House Building Society Ltd. (hereinafter referred to as, ‘the Society’) in lieu of the loan obtained by the petitioner. The petitioner, a small-time farmer, had obtained a loan for construction of his house amounting to Rs.2,90,000/- from the respondent-Society on 20th May, 2003. The said amount of loan was repaid by the petitioner as under: Date

26.11.05

27.10.07

31.12.07 Amount 1,25,000-00 50,000-00 1,20,000-00 Civil Writ Petition No.19753 of 2010 2 It is not disputed that the respondent-Society is a facilitator for disbursement of loan to be advanced by Punjab State Federation of Cooperative House Building Societies Ltd. (hereinafter referred to as, ‘the Housefed’). After disbursement of loan by the Society, the installments gathered are also paid to the Housefed. The Housefed had issued a one- time-settlement scheme, called ‘OTS Scheme’. The petitioner was informed that in case an amount of Rs.95,000/- is deposited by him in lump-sum on or before 30th June, 2008, then the entire loan shall stand settled and the property of the petitioner shall be redeemed. It is a case of the petitioner that he had already paid Rs.3,90,000/- including Rs.95,000/-, which was payable under the OTS Scheme. As per the OTS Scheme, the amount deposited under the OTS Scheme was to be remitted to the Housefed on or before 30th June, 2008. It is a case of the Society that Rs.95,000/- were received on account of the loan under the OTS Scheme from the petitioner on 27th May, 2008. The receipt to this effect has been annexed as Annexure P-1. However, the petitioner was denied the benefit of OTS Scheme as the Society could not forward the amount to the Housefed by the due date, i.e. 30th June,

2008. On an application made by the petitioner, the Assistant Registrar, Cooperative Societies, Jagraon held an enquiry, wherein he concluded as under: “As per the complaint on the asking of Sh.Pawan Kumar, Secretary of the society Rs.95,000/- has been deposited under the O.T.S. Scheme vide receipt No.68 dated

27.05.08. On the next day Sh.Pawan Kumar died and because of this reason the case of the applicant under O.T.S. Scheme was not prepared. This Scheme was valid upto

30.06.08. Due to the death of Secretary of the Society and thereafter non-appointment of new Secretary, the case under O.T.S. Scheme has not been prepared and in this regard there is no fault on the part of the member (applicant). The Enquiry Officer has written that due to that reason the Civil Writ Petition No.19753 of 2010 3 applicant has not been denied to the benefit of this scheme. The Secretary of the Society has also written that recovery of this member under O.T.S. Scheme has already been effected and no dues are pending. The Enquiry Officer has recommended for giving benefit to the applicant-member under the O.T.S. Scheme. Therefore, the application given by the member, statement of the Secretary and report of above enquiry are hereby sent to you for necessary action.” Relying upon the enquiry report, counsel appearing on behalf of the Housefed and the Society has stated that even though in compliance of the OTS Scheme, the petitioner had deposited the amount, but due to the death of Secretary of the Society the same could not be remitted to the Housefed. It is stated that since the amount reached the Housefed after 30th June, 2008, the benefit of OTS Scheme could not be granted to the petitioner. It is contended that in somewhat similar circumstances, where a loanee was duped by an employee of a Society, this Court in Civil Writ Petition No.18696 of 2009 titled as ‘Phool Singh v. State of Haryana and others’ decided on 9th August, 2010 held that in case loss/injustice has occurred due to non-performance of duty on the part of the Society, the loanee cannot be made to suffer. This view was upheld by a Division Bench of this Court in LPA No.1282 of 2010 titled as ‘The HIsar National Cooperative House Building Society v. Phool Singh and others’ decided on 1st October, 2010. In the present case, it is due to the death of Secretary of the Society, the petitioner is suffering. Once the loan amount was repaid as per OTS Scheme to the Society for onward transmission to the Housefed, so far as the petitioner is concerned, he had discharged his liability. Civil Writ Petition No.19753 of 2010 4 What is the fault of the petitioner? Whether for an act of omission and commission on the part of the Society, the petitioner can be held liable or not? It is to be noticed that the Society is nothing, but an agency of the Housefed for all intents and purposes, which acts as its limb to advance the loans. The Society is a facilitator of the Housefed for sanction, disbursement and deposit of the installments. If the Society failed to remit the amount within a specified time, a member or obtainee of the loan cannot be made to suffer. The liability, if any, is to be determined inter-se the Society and the Housefed. Thus, as to who is responsible and who should bear due to the inevitable death of Secretary of the Society, is to be determined between the Housefed and the Society. Hence, respondent No.2 and 4 may seek as to who between them is responsible or has to share the liability. No liability can be fastened upon the petitioner. Accordingly, respondent No.2, which is an instrumentality of the State, is directed to seek arbitration with respondent No.4-Society and discharge the petitioner from the liability of payment of the loan, as he has performed his part in consonance with the OTS Scheme within a specified time. The property mortgaged by the petitioner be also released by the Housefed. With the observations made above, present petition is disposed of. December 8, 2010 [KANWALJIT SINGH AHLUWALIA] JUDGE