Himachal Pradesh High Court
Gurbachan Singh vs Appellant/Plaintiff Filed A Suit ... on 18 November, 2021
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
ON THE 18th DAY OF NOVEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
REGULAR SECOND APPEAL Nos. 166 OF 2019 & 72 OF 2021
RSA No. 166 of 2019
Between:
AKASHDEEP SINGH, S/O SH.
GURBACHAN SINGH, R/O
HOUSE NO.148/12, RAM
NAGAR, MANDI TOWN,
DISTRICT MANDI, H.P.
r ....APPELLANT.
(BY MR. HOSHIAR SINGH KAUSHAL, ADVOCATE, FOR THE
PETITIONER)
AND
1. ADMINISTRATOR, THE
MANDI URBAN CO-
OPERATIVE BANK LTD.,
MANDI, H.P. THROUGH ITS
MANAGER.
2. MANJEET SINGH, S/O
LATE SH. LAL SINGH, R/O
HOUSE NO.110/12, RAM
NAGAR, MANDI TOWN,
DISTRICT MANDI, HP.
3. KARAN DEEP SINGH, S/O
SH. MANJEET SINGH, R/O
HOUSE NO.110/12, RAM
NAGAR, MANDI TOWN,
DISTRICT MANDI, HP.
4. DISTRICT COLLECTOR
MANDI, DISTRICT MANDI,
HP.
....RESPONDENTS.
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(BY MR. R.S. GAUTAM, ADVOCATE, FOR RESPONDENT NO.1.
.
MR. H.S. RANGRA, ADVOCATE, FOR RESPONDENTS NO.2 &
3.
MR. ASHOK SHARMA, ADVOCATE GENERAL, ADARSH
SHARMA, MR. SUMESH RAJ AND MR. SANJEEV SOOD,
ADDITIONAL ADVOCATES GENERAL WITH MR. KAMAL KANT
CHANDEL, DEPUTY ADVOCATE GENERAL, FOR
RESPONDENT NO.4).
RSA No. 72 of 2021
Between:
AKASHDEEP SINGH, S/O SH.
GURBACHAN SINGH, R/O
HOUSE NO.148/12, RAM
NAGAR, MANDI TOWN,
DISTRICT MANDI, H.P.
....APPELLANT.
(BY MR. HOSHIAR SINGH KAUSHAL, ADVOCATE, FOR THE
PETITIONER)
AND
1. THE MANDI URBAN CO-
OPERATIVE BANK LTD.,
MANDI, H.P. THROUGH ITS
MANAGER.
2. MANJEET SINGH, S/O
LATE SH. LAL SINGH, R/O
HOUSE NO.110/12, RAM
NAGAR, MANDI TOWN,
DISTRICT MANDI, HP.
3. KARAN DEEP SINGH, S/O
SH. MANJEET SINGH, R/O
HOUSE NO.110/12, RAM
NAGAR, MANDI TOWN,
DISTRICT MANDI, HP.
4. DISTRICT COLLECTOR
MANDI, DISTRICT MANDI,
HP.
....RESPONDENTS.
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3
(BY MR. R.S. GAUTAM, ADVOCATE, FOR RESPONDENT NO.1.
MR. H.S. RANGRA, ADVOCATE, FOR RESPONDENTS NO.2 &
3.
.
MR. ASHOK SHARMA, ADVOCATE GENERAL, ADARSH
SHARMA, MR. SUMESH RAJ AND MR. SANJEEV SOOD,
ADDITIONAL ADVOCATES GENERAL WITH MR. KAMAL KANT
CHANDEL, DEPUTY ADVOCATE GENERAL, FOR
RESPONDENT NO.4).
Whether approved for reporting?1 Yes
This appeal coming on for admission this day, the Court
delivered the following:
r to
ORDER
As, these appeals arise out of a common judgment
passed by the Court of learned District Judge, Mandi, in Civil
Appeal Nos. 11 of 2016, titled as Akashdeep Singh vs.
Administrator, The Mandi Urban Cooperative Bank Ltd., Mandi,
H.P., & Ors., the same are being disposed of by common
judgment.
Brief facts necessary for the adjudication of these
appeals are as under:-
Appellant/plaintiff filed a suit for declaration and
permanent prohibit injunction against the defendants inter alia on
the ground that defendant No. 2, who was elected as a Director of
the defendant/respondent No. 1-bank, allured the plaintiff for
raising loan by alleging that he had already sanctioned a Cash
Credit Limit of Rs. 20,00,000/- in favour of his son i.e. (defendant
No.3). Being allured, plaintiff intended to raise a loan of Rs.
50,000/- but defendant No.2, allured the plaintiff for sanctioning
loan of Rs. 2,00,000/-and out of this amount of Rs. 2,00,000/-,
.
defendant No.2 transferred Rs. 1,50,000/- in the C.C. Limit
account of his son (defendant No.3). Thus, loan amount of Rs.
1,50,000/- was transferred in the account of defendant No.3, by
defendant No.2. Defendant No.3, stood surety for the aforesaid
loan. Defendants No. 2 & 3 paid few regular installments to the
bank against the aforesaid loan amount but thereafter they
stopped paying the installments. The loan account was declared as
Non Performing Assets. The case was sent for Arbitration, wherein
learned Arbitrator passed an award in favour of defendant No. 2.
Plaintiff agitated the matter by stating that as defendant No.2 had
taken away an amount of Rs. 1,50,000/- from the account of the
plaintiff, hence the plaintiff was only liable to pay Rs.50,000/-. As
per the plaintiff, even the defendant-bank had not opened any
account of his at the time of raising loan and defendant No. 2 had
obtained his signatures from a shop as the plaintiff had never
visited the defendant-bank. According to the plaintiff, he had
requested defendant No.2, on numerous occasion to realize the
entire loan amount but defendant No. 2, did not do so which led to
issuance of the orders of the auction of the suit land belonging to
the plaintiff. He appealed to the revenue authorities against these
orders but finally lost leading to the passing of the orders of the
auction of his land. It is in this background, that the suit was
filed with the prayer that the defendants No. 2 & 3 be directed to
pay Rs. 1,50,000/- towards the loan amount.
2. The suit was resisted by the defendants inter alia on
.
the ground that the same was bad for misjoinder and nonjoinder
of parties and that there no cause of action had accrued in favour
of the plaintiff, to file the suit. The same was also resisted on
maintainability as well as being hit by the principle of resjudicata
by defendant No.1. Defendants No.2 & 3 also denied the
allegations leveled in the plaint and as per them, they had nothing
to do with the loan which stood taken by the plaintiff from
defendant No.1-bank.
3. On the basis of the pleadings of the parties learned
Trial Court framed the following issues:-
1. Whether the plaintiff is entitled to declaration to the
effect that defendant No.2 and 3 be declared as loanee
of Rs. 1,50,000/- as prayed for? OPP.
2. If the issue No.1 is decided in affirmative, whether the
plaintiff is entitled for relief of mandatory injunction
directing defendant No.2 to repay the entire loan
amount to the bank, as prayed for? OPP.
3. Whether the plaintiff is entitled to a decree for
permanent prohibitory injunction, as prayed for? OPP.
4. Whether the present suit is not maintainable for want
of notice under Section 76 of the HP Co-operative
Societies Act, as alleged? OPD-1.
5. Whether this court has no jurisdiction to entertain the
present suit in view of Section 75 and 92 of the HP
Co-operative Societies Act, as alleged? OPD-1 & 4.
6. Whether the suit of the plaintiff is not maintainable,
as alleged? OPD-1.
7. Whether the plaintiff is stopped by his own act and
conduct from filing the present suit, as alleged? OPDs.
8. Whether the suit of the plaintiff is barred by principal
of resjudicata, as alleged? OPD 1 & 4.
.
9. Whether the suit of the plaintiff is bad for misjoinder
and non joinder of necessary parties, as alleged? OPD
1 & 4.
10. Whether the plaintiff has no locus standi to file the
present suit, as alleged? OPD-1.
11. Whether the plaintiff has not come to the court with
clean hands, as alleged? OPD 1 & 4.
12.
13.
alleged? OPD-4.
Relief.
Whether the suit of the plaintiff is not maintainable
for want of notice under Section 80 of CPC, as
4. On the strength of the evidence which was led by the
parties concerned as well as the pleadings, the issues were
decided as under:-
Issue No.1 : No
Issue No.2 : No
Issue No.3 : No
Issue No.4 : No
Issue No.5 : No
Issue No.6 : No
Issue No.7 : No
Issue No.8 : No
Issue No.9 : No
Issue No.10 : No
Issue No.11 : No
Issue No.12 : No
Relief : The suit of the plaintiff is
dismissed as per operative
part of the judgment.
5. Vide judgment and decree dated 29.02.2016, the suit
was dismissed. The judgment and decree passed by learned Trial
.
Court stood assailed by the plaintiff by way of Civil Appeal No. 11
of 2016 before the learned Appellate Court. Feeling aggrieved, by
the adjudication on the issues, which were framed at the behest of
the defendant-bank, said bank also preferred Cross Objection i.e.
Cross Objection No.1 of 2016.
6. Vide judgment dated 02.01.2019, the appeal filed by
the appellant/plaintiff stood dismissed, whereas, the Cross
Objections were allowed by the learned Appellate Court. Feeling
aggrieved, the plaintiff has filed these Regular Second Appeals.
7. I have heard learned counsel for the parties and I have
also gone through the judgments and decrees passed by the
learned Courts below.
8. While allowing the Cross Objections, filed by the
defendant-bank, learned 1st Appellate Court has returned the
findings that the suit instituted by the plaintiff was not
maintainable, being hit by the provision of Sections 75, 76, 92 of
the H.P. State Co-operative Societies Act.
9. A perusal of the record demonstrates that indeed no
notice in terms of Section 76 of the 1968 Act was served upon by
the plaintiff upon the defendant-bank before filing of the suit. Ext.
PW-4/A, which according to the learned counsel for the
appellant/plaintiff was the Notice, so served in compliance of the
provision of Section 76 (supra), by no stretch of imagination can
be said to be a Notice as is envisaged under Section 76 of the Act.
This notice is not addressed to the Cooperative Society i.e.
defendant No.1 but is addressed to defendant No.3, and contents
.
thereof clearly demonstrates that it was a Notice in personam
issued by the plaintiff to defendant No.3, highlighting the acts of
defendant No.3 and his father defendant No.2, which purportedly
led to the filing of the suit.
10. Be that as it may, fact of the matter remains that no
Notice was served upon defendant No.3 by the plaintiff before
instituting the suit and therefore the findings returned by the
learned Appellate Court that the suit was hit by the provision of
Section 76 of the Himachal Pradesh Cooperative Societies Act are
correct findings.
11. Now, incidently with regard to issues No. 1 to 3
framed by the learned Trial Court, onus to prove which issues was
upon the plaintiff, there are concurrent findings returned by both
the learned Courts below against the plaintiff. In other words, both
the learned Courts have concurrently held that the plaintiff was
not entitled to a decree of declaration that defendants No. 2 & 3 be
declared as loanee of Rs.1,50,000/-. A perusal of the findings
returned by the learned Trial Court on these issues, as affirmed by
learned Appellate Court, demonstrates that these findings are duly
supported by the pleadings on record as well as the evidence
which was led by the parties to these issues. In other words, these
findings returned by the leaned Courts below are clearly borne out
from the record of the case. Besides this, the findings so returned
per say are findings of fact and no question of law, leave aside any
substantial question of law, indeed is attracted in these two
.
appeals. Record further demonstrates that as a result of the
plaintiff failing to repay the loan obtained from the bank, the
matter was referred to the learned Arbitrator and the award of the
learned Arbitrator was against the plaintiff. This award was never
challenged by the plaintiff as is evident from the findings returned
by learned Courts below and plaintiff in fact sought time to deposit
money in terms of the award. That being the case, it is apparent
that subsequently filing of the suit by the plaintiff was nothing but
an afterthought. Therefore, in view of the findings returned
hereinabove, this Court is satisfied that no substantial questions
of law is involved in these two appeals.
12. During the course of arguments, learned counsel for
the appellant stated that as an application filed under Order 41
Rule 27 of the Code of Civil Procedure praying for permission to
lead additional evidence was not decided by the learned Appellate
Court, therefore, these appeals deserve admission on this
substantial questions of law.
13. I have carefully perused the record the record of the
learned Appellate Court. In terms thereof, an application under
Order 41 Rule 27 of the Code of Civil Procedure was filed by the
present appellant praying to lead additional evidence. The
additional evidence which was sought to be led was by way of
examination of one witness Smt. Charanjeet Kaur, W/o Sh.
Gurcharan Singh, who as per appellant was allegedly shown as
one of the guarantor of the loan application by forging the
.
application form, though this witness had neither visited the bank
premises nor appended her signatures upon the application. It
stood averred in the application that this witness was material,
and this fact had come to the notice of learned counsel for the
appellant while preparing the file for arguments. As despite due
diligence this witness could not be produced and examined before
the learned Trial Court, therefore, prayer was made for the
examination of this witness with liberty to lead additional
evidence. Reply to this application is also on record. Though the
judgment and decree passed by the learned Appellate Court does
not deals with this application but to do justice to the parties, this
Court called upon the learned counsel for the appellant to
demonstrate as to why the application should have been allowed
by the learned Appellate Court for the reason that it is well settled
that in the garb of an application under Order 41 Rule 27 of the
Code of Civil Procedure, party cannot be permitted to fill up lacuna
in its case. Now, a perusal of the application demonstrates as
already mentioned hereinabove that the intent of the appellant
was to examine one witness which as per the appellant
inadvertently could not be examined when the appellant led his
evidence before the learned Trial Court. This is in the considered
view of this Court, does not passes the test of the due diligence.
Under Order 41 Rule 27 of the Code of Civil Procedure, a party can
be permitted to lead additional evidence if it satisfies the Court
that the evidence which it intends to place on record despite due
.
diligence was not in its knowledge earlier or the said evidence has
come into existence subsequently. Both these tests are not
satisfied even in terms of the averments made in the application.
Therefore, this Court is of the considered view that on this hyper
technical ground, the judgments and decrees passed by the
learned Courts below cannot be set aside especially when the suit
of the plaintiff is held to be not maintainable having been filed by
not complying with provision of Section 76 of the 1968 Act.
Hypothetically even if the application is/was allowed and the
plaintiff is permitted to examine the witness, then also the lacuna
of the suit being hit by the provision of Section 76 of the Act
cannot be filled up, therefore, also, this Court is of the considered
view that no substantial questions of law is involved in these
appeals.
14. Accordingly, these appeals being devoid of any merit are
dismissed. Pending miscellaneous applications, if any, stand disposed
of. Interim orders, if any, stand vacated.
(Ajay Mohan Goel)
Judge
November 18, 2021
(vinod)
