Madhya Pradesh High Court
Narendra Patel vs Shri Gyaneshwar Patil on 7 April, 2025
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ELECTION PETITION No. 18 of 2024
NARENDRA PATEL
Versus
SHRI GYANESHWAR PATIL AND OTHERS
Appearance:
Shri Abhishek Arjaria - Advocate for the petitioner.
Shri Prakash Upadhyaya - Senior Advocate with Shri Ravindranath
Chaturvedi - Advocate for the respondent No.1.
Respondent No.7 in person through V.C.
None for the respondent Nos.2 & 8. Respondent Nos.3, 4, 5, 6, 9 and 10
are already proceeded ex-parte.
ORDER
(Reserved on : 10.01.2025)
(Pronounced on : 07.04.2025)
Heard on IA No. 19879/2024 which is an application under Order
VII Rule 11 C.P.C. for rejection of the election petition. The matter was
heard at length on 10.1.2025 and all the arguments were advanced
exhaustively. The parties were further granted liberty to file written
submissions, if they so wish, while the matter was reserved for orders on
said IA.
2. One of the grounds for rejection of the petition is that the
election petition has been filed on the ground of corrupt practices inasmuch
as the returned candidate did not disclose liabilities towards a financial
institution in his nomination form and affidavit attached to the nomination
form. However, Para-8 of the election petition does not contain material
facts by not disclosing that what is the amount of default of the returned
candidate on the date of nomination and that the returned candidate
suppressed the said liability from the general public by not mentioning the
said liability in the nomination form and the affidavit. The only averment in
the election petition is on the basis of some order dated 03.03.2020 passed
by the Registrar Cooperative Societies holding that the returned candidate
was defaulter to a Cooperative Bank and as on date of nomination to some
other society (not that Bank) i.e. 10.2.2017, he was defaulter.
3. Looking to the aforesaid ground, as the election petitioner did not
come out with specific material to show the default of the returned
candidate on the date of nomination, this application was earlier dealt with
vide order dated 18.10.2024 and this Court had relied on the order passed
by the Hon'ble Supreme Court recently in case of Arif Masood Vs. Dhruv
Narayan Singh (Civil Appeal No. 10388/2024 decided on 10.9.2024)
wherein the High Court had rejected the application under Order VII Rule
11 for rejection of election petition challenging election to State Legislative
Assembly. In the aforesaid case, the bone of contention between the parties
revolved around the contents of the affidavit filed by the appellant in form
26 alongwith his nomination and the case of the election petitioner was that
the "current liabilities" have not been correctly disclosed. Some letters
written by the State Bank of India were relied upon. The returned candidate
came with plea that there was a fraud in the erstwhile State Bank of Mysore
(now State Bank of India) and he alongwith his wife was infact, victim of
the fraud, rather than being a defaulter. It was asserted that the alleged
amount was never received by the returned candidate or his wife, and in
criminal trial, the returned candidate is infact, a prosecution witness. The
Supreme Court in the aforesaid factual situation, had passed the following
order :-
8. We are conscious of the fact that the above issue is
subject matter of a trial and no opinion can be expressed
by us or the High Court during the pendency of the trial
proceedings. However, with a view to consider the
substance, if any, in the application under Order VII Rule
11 CPC, and to further determine as to whether the
continuation of the Election Petition is an exercise in
futility or there are triable issues, it would have been
appropriate for the High Court to ascertain whether the
letters dated 21.09.2023 (Annexures P-10 and P-11) are
genuine and actually issued by the State Bank of India
and/or are forged communication, as claimed by the
appellant. Similarly, the High Court for the limited
purpose of deciding the application under Order VII
Rule 11 CPC might be well within its right to direct the
Branch Manager of the State Bank to produce the
relevant documents so as to find out any prima-facie
merit in the rival contentions raised by the parties
regarding the non-disclosure of the correct facts in the
affidavit, filed by the appellant in compliance of Form-
26. Maybe the record suggesting the alienation of any
property in favour of the appellant or his wife by the
builder, who is alleged to have misappropriated the
sanctioned loan amount in connivance with the bank
officials, too can throw some light for effective
adjudication of the application under Order VII Rule 11
CPC.
9. For the reasons aforestated, however, without
expressing any opinion on the merits of the contentions
being raised by both the sides, it seems to us that the
application under Order VII Rule 11 CPC, moved by the
appellant-returned candidate, requires fresh adjudication
by the High Court.
(Emphasis Supplied)
4. The Hon'ble Supreme Court, in the aforesaid case, had held that the
High Court for the limited purpose of deciding the application under Order
VII Rule 11 CPC might be well within its right to direct the Branch
Manager of the State Bank to produce the relevant documents so as to find
out any prima-facie merit in the rival contentions raised by the parties to
establish whether there are any triable issues arising in the matter.
5. Following the aforesaid judgement of the Supreme Court, before
deciding IA No. 19879/2024, this Court deemed it fit to examine the
General Manager/Chief Executive Officer of Citizen Cooperative Bank,
Burhanpur. Summons were issued for production of General Manager/Chief
Executive Officer, Citizen Cooperative Bank, Burhanpur (MP) to appear
with original records if any, to throw light on the status of dues of the
returned candidate/respondent No.1 as on the date of his nomination for
parliamentary election i.e. 23.4.2024. In compliance of the said order, Shri
Pandurang Sonvane, Senior Cooperative Inspector cum Liquidator of
Citizen Cooperative Bank Ltd., Burhanpur was examined on 13.11.2024 as
the Bank has since been placed under liquidation and the liquidator is
looking after the affairs of the Bank as custodian of record and supervising
residual activities of the said Bank under liquidation. He also placed on
record No-dues and Account statements of the returned candidate and his
firm.
6. The learned counsel for the respondent No.1-returned candidate
while pressing on the application under Order VII Rule 11 C.P.C. submitted
that the election petition suffers from faulty verification inasmuch as in the
election petition the verification clause contains certain paragraphs to be
true and correct from the knowledge of the election petitioner while some
paragraphs are true and correct from the information of the election
petitioner while in the affidavit under Rule 94-A of conduct of election
Rules the said paragraphs do not match and therefore, there is ambiguity in
the verification that which of the paragraphs of the election petition are
based on personal knowledge and which paragraphs are based on the
information obtained by the petitioner.
7. It is further argued that in election petition this information is
material because the returned candidate must know that which of the facts
are to be cross-examined from the election petitioner himself and which of
the facts are to be cross-examined from other persons who may be brought
as witness to prove the facts which are based on the information obtained
by the election petitioner while the information which is verified to be
proved on the basis of knowledge of election petitioner may be required to
be cross-examined from the election petitioner himself. Thus, the election
petition deserves to be rejected on the ground of faulty verification.
8. It was further contended that the election petition has been filed on
the ground of corrupt practices inasmuch as the returned candidate did not
disclose liabilities towards a financial institution in his nomination form and
affidavit attached to the nomination form. However, Para-8 of the election
petition does not contain material facts by not disclosing that what is the
amount of default of the returned candidate on the date of nomination and
that the returned candidate suppressed the said liability from the general
public by not mentioning the said liability in the nomination form and the
affidavit. The only averment in the election petition is on the basis of some
order dated 03.03.2020 passed by the Registrar Cooperative Societies
holding that the returned candidate was defaulter to a Cooperative Bank and
as on date of nomination to some other society (not that Bank) i.e.
10.2.2017, he was defaulter and as per mandate of Section 50-A of the M.P.
Cooperative Societies Act 1960, he was removed from elected post as he
was in default of loan to any Cooperative Society as on that date. Section
50-A is as under :-
50-A. Disqualification for being candidate or voter for
election to Board of Director or representative or
delegate of society.-
(1) No person shall be qualified to be a candidate for
election as member of the Board of Directors,
representative or delegate of the society if he is in default
for a period exceeding 12 months to the society or any
other society for any loan or advance taken by him.
(2) A person elected to an office of a society shall cease
to hold such office, if he is in default for a period
exceeding 12 months to the society or any other society
for any loan or advance taken by him, and the Registrar
shall declare his seat vacant: Provided that a person
elected to an office of a co-operative bank from a society
other than co-operative credit structure, shall cease to
hold such office, if such society commits default for any
loan or advance for a period exceeding three months,
and the Registrar shall declare his seat vacant.
9. Therefore, it is contended that the petition is founded on mere
apprehension or speculation that the returned election as he was in default
of loan to a Bank as on 10.2.2017, must necessarily be in default as on the
date of nomination to parliamentary elections which took place in April
2024. Therefore, it is contended that there is failure to plead necessary
material facts on which the petitioner relies and in absence of pleading the
amount of default on the date of nomination or the document or record or
the reason by which the election petitioner believes that the petitioner is
defaulter has not been disclosed in the election petition at all.
10. It is further contended that by not specifically pleading the amount of
default/loan outstanding and by only pleading in the election petition that
the petitioner sought information of the amount of default from the said
society and other authorities of the State by moving application under Right
to Information Act, the election petition is only founded on possibility that
the returned candidate may be a defaulter of a financial institution and on
the basis of mere possibility or apprehension, the jurisdiction of this Court
challenging the election of candidate who has won by majority of votes and
represents the will of public, cannot be invoked.
11. The learned counsel for the respondent No.1 further argued that how
the alleged non-disclosure is undue influence in terms of Section 123 (2) of
Representation of People Act 1951 (for short "Act of 1951") and how it has
materially affected the election in terms of Section 100(1)(d) so as to
constitute a corrupt practice, has not been disclosed in the election petition.
The learned counsel for the respondent No.1 further submits that allegation
of corrupt practice has to be specific and in absence of any specific pleading
the election petition is liable to be rejected.
12. It was further contended that the witness Pandurang Sonawane, who
appeared as CW-1, has also endorsed the fact that the returned candidate
was having two accounts maintained with the Bank, one in his name and
another in name of firm, of which he is the sole Proprietor. He has duly
proved that there was no default of the returned candidate on the date of
filing of nomination, there were no dues in both the accounts, as both stood
settled in the year 2018 itself, much prior to nomination. Therefore, no
triable issues remain in the case and the petition has to be rejected. So far as
the suppression of assets is concerned, it is contended that there is no such
assertion in the election petition to that effect that he suppressed the
proprietorship of firm M/s Priyam Kela Supplier, and no new case can be
allowed to be set up at the time of hearing of the Election petition, that is
not founded on pleadings. Even otherwise, there are no pleadings in the
petition that the returned candidate has any assets in the name of the said
firm. What is material is suppression of assets, and not suppression of a
firm. Unless that firm has some tangible or intangible assets, then only that
suppression would have had any meaning and would amount to a triable
issue. Moreso, now it has come on record that there is neither loan, nor
deposit in the Bank account of the said firm also. Therefore, even if this
issue is to be tried, then looking to the deposition of CW-1, nothing remains
to be tried further in the matter.
13. Per Contra, the learned counsel for the election petitioner submits
that a returned candidate is bound to disclose the assets and more
particularly the liabilities towards public financial institutions so that the
public can have a knowledge of the dubious financial dealings of the
contesting candidate and the indebtedness of the contesting candidate. By
placing reliance on the judgment of the Supreme Court in the case of Lok
Prahri Vs. Union of India reported in 2018 (4) SCC 699 (para 80, 81), it
is argued that the attempt by a candidate to suppress his indebtedness would
undisputably be a undue influence and shall amount to corrupt practice.
Reliance is also placed on Union of India Vs. Assn. for Democratic
Reforms, reported in 2002 (5) SCC 294. It is further argued that the
affidavit attached to the nomination form is required to be displayed to the
public though there is no bar to display of the nomination form itself but
affidavit is mandatorily required to be displayed to general public in terms
of Section 33(A)(3) of the Act of 1951. It was contended that the
information of debt towards the public financial institution registered as a
cooperative society was not disclosed either in the nomination form or in
the affidavit. It is further contended that once there is suppression in the
affidavit attached to nomination, then there has to be inference of undue
influence and corrupt practice, and therefore, it may not be necessary to
plead in the election petition is specific terms that how it has materially
affected the election result and it may be a point of determination at time of
evidence and trial.
14. The learned counsel for the petitioner further argues that the alleged
defect of affidavit attached to election petition and the alleged defect of
verification in the present petition is a curable defect and that the election
petition cannot be dismissed only on account of minor discrepancy in the
verification in the petition and in the affidavit. The learned counsel relies on
the following judgments :-
a. Ram Prasad Sarma Vs. Mani Kumar Subba (2003 (1) SCC 289)
b. Regu Mahesh Vs. Rajendra Pratap Bhanj Dev (2004 (1) SCC 46)
c. Chandrakant Uttam Chodankar Vs. Dayanand Rayu Mandrakar
(2005(2)SCC 188)
d. Umesh Challiyil Vs. K.P. Rajendran (2008 (11) SCC 740)
e. G.M. Siddeshwar Vs. Prasanna Kumar (2013 (4) SCC 776)
15. It is further contended that the material fact is the fact that the
returned candidate having suppressed the indebtedness to public financial
institution in the nomination and affidavit and it is the material fact which
has been pleaded. The actual amount of loan or debt might be material
particulars and it is not material fact. It is contended that there is difference
between the material facts and material particulars and the election petition
cannot be rejected for want of material particulars because the material facts
are duly pleaded in the petition and compliance of Section 83 (1) (a) and (b)
is pleaded in the present case. Reliance is placed on Harkirat Singh Vs.
Amrinder Singh, reported in 2005 (13) SCC 511.
16. Coming to the deposition of CW-1 and bank statements as produced
by him are concerned, it is argued that the bank statements produced by him
are not fulfilling the requirements as per Section 2-A of Bankers Books
Evidence Act 1879, and therefore, cannot be gone into for the purpose of
adjudging whether there are liabilities or not towards a public financial
institution, as they are inadmissible in evidence.
17. It is vehemently argued that even if for the sake of arguments, there
may not be any loan default or outstanding on the date of nomination, but
the proprietorship of M/s Priyam Kela Suppliers has been suppressed,
which is itself a material suppression of assets, on basis of which triable
issues remain in the case.
18. So far as the contention of the returned candidate that there is no
specific pleading of corrupt practice in the affidavit is concerned, it is
pointed out by learned counsel for the petitioner that the affidavit duly
mentions the instance of corrupt practice by mentioning that there is
allegation of suppression of fact in the affidavit attached with the
nomination and therefore the affidavit attached to the election petition does
not suffer from any defect in form and substance. Therefore, on these
assertions it is prayed to reject the application under Order VII Rule 11
C.P.C.
19. Upon considering the rival contention of the parties and on perusal of
the record, as far as violation of various provisions of Section 83 are
concerned, trial of an election petition is dealt with under Section 86 the
Act and it only authorizes the High Court to dismiss an election petition
which does not comply with the provisions of Section 81 or Section 82 or
Section 117. It is evident that provisions contained in Section 86 of the Act
are pari-materia to the provisions contained in Order VII Rule 11 of CPC.
20. In case of K. Babu Vs. M. Swaraj and Others (2024 (4) SCC 299),
the Hon'ble Supreme Court has held that non-compliance with
requirements of Section 83 is not fatal to election petition. Section 86(1)
only speaks of non-compliance with Section 81, 82 or 117 of the 1951 Act
being basis for dismissal of an election petition at outset. Defects in an
election petition that constitute non-compliance with Section 83 are curable
defects, therefore, the plea of non-compliance of Section 83(1)(a) or
Section 83(1)(b) and 83 (1) (c) may not attract dismissal of the election
petition in the present case in the light of K. Babu (supra). The following
has been held therein :-
13. Before us, arguments were advanced only upon non-
compliance with Section 81(3) of the 1951 Act,
warranting invocation of Section 86(1) thereof, and not
on the other issue regarding lack of material facts and
particulars in the pleadings, as required by Section 83 of
the 1951 Act. In any event, it is well settled that non-
compliance with the requirements of Section 83 of the
1951 Act is not fatal, as Section 86(1) thereof only speaks
of non-compliance with Sections 81, 82 or 117 being the
basis for dismissal of an election petition at the outset.
Defects in an election petition that constitute non-
compliance with Section 83 of the 1951 Act have been
held to be curable defects (see T.
Phungzathang v. Hangkhanlian [(2001) 8 SCC 358]
; Umesh Challiyil v. K.P. Rajendran [(2008) 11 SCC 740]
; Ponnala Lakshmaiah v. Kommuri Pratap Reddy [(2012)
7 SCC 788] ; G.M. Siddeshwar v. Prasanna
Kumar [(2013) 4 SCC 776 : (2013) 2 SCC (Civ) 715] ;
and A. Manju v. Prajwal Revanna [(2022) 3 SCC 269 :
(2022) 2 SCC (Civ) 95] ). Further, once the High Court
opined that a triable issue under Section 123(3) of the
1951 Act is made out, we find no grounds to interfere
therewith.
21. However, before dealing with this ground and other grounds for
rejection, it is appropriate to consider whether the basic foundational
allegations, i.e. suppression of indebtedness to public financial institution,
i.e. Citizen Cooperative Bank, Burhanpur (MP) are made out or not to
constitute a triable issue, before proceeding further in the matter. For
limited purpose of ascertaining that fact, evidence of CW-1 Pandurang
Sonawane has been recorded by this Court. The election petitioner has
harped on an order dated 03.3.2020 issued by the Registrar, Cooperative
Societies, Madhya Pradesh, whereby the returned candidate has been held
to be indebted to and defaulted in an loan to the tune of Rs. 71,85,517/- as
on 10.2.2017 on which date he was elected to an office in an Cooperative
Society. The returned candidate has contended that the petition is lacking in
material facts inasmuch the exact amount indebtedness is not pleaded, and
the allegation being only based on speculation based on an order dated
03.3.2020 recording the position as on 10.2.2017 mentioning indebtedness
towards a Cooperative Bank on that date as Rs.71,85,517/- towards a loan
taken by the returned candidate during course of business. It has been
countered by the learned counsel for the petitioner that they may call the
Bank officials at the time of evidence and the exact amount is variable,
hence, could not be specifically pleaded. It is further stated that the State
authorities have not supplied the requisite information even after he sought
the same under Right to Information Act. It was further stated that the
returned candidate has not yet filed the written statement and no stand has
been taken in respect of the truthfulness of the indebtedness.
22. Pandurang Sonawane (CW-1) has categorically deposed before this
Court that the returned candidate had two loan accounts, one in name of
M/s Priyam Kela Suppliers of which he was Proprietor, and another in his
own name. The loan to M/s Priyam Kela Suppliers was disbursed on
01.7.2000 to the tune of Rs. 35.00 lacs and fully repaid on 31.1.2018 by
paying Rs. 72,00,239/-. As on 31.1.2018, there was a surplus/positive
balance in the said loan account, which was towards recovery commission
to be paid to Tehsildar, and has no relation with the returned candidate. He
produced print-out of account certified by the Branch Manager and copy of
no-dues certificate issued by the Branch Manager and as Ex. C-1 and C-
2/C.
23. In relation to the other account held by the returned candidate in his
own name, it has been stated that on 13.10.2000, an amount of Rs. 16.00
lacs was disbursed and on 08.2.2018, the said account has been cleared by
paying an amount of Rs. 26,84,036/- and now there are no dues in the said
account. He produced print-out of account certified by the Branch Manager
and copy of no-dues certificate issued by the Branch Manager and as Ex. C-
3 and C-4/C.
24. It was vehemently argued by the learned counsel for the election
petitioner that the account statements and no-dues are in-admissible in
evidence because they are not certified in the manner laid down in Section
2-A of Bankers Books Evidence Act 1891. On perusal of the said
provisions, it is seen that indeed, the statements being computerized print-
outs, lack the certificates and requirements under Section 2-A because it
simply contains a seal of the Branch Manager and nothing else. So far as
no-dues certificates are concerned, the same are true copies issued by the
present Branch Manager, but signed by earlier Manager. It was argued that
the said no-dues relates to information taken from Bankers Book, therefore,
it must also have the requirements of Act of 1891.
25. It is to be considered whether the said defect will render the
deposition of this witness denuded of any value. In the present case, the
account statements and no-dues certificates are duly signed and stamped by
the present Branch Manager. CW-1 in his deposition has categorically
stated that he identifies the signatures of the Branch Manager who has
signed and stamped the computerized statements Ex. C-1 and C-3, and the
same person has attested the true copies of no-dues certificates, Ex. C-2/C
and C-4/C, though he does not identify the signatures of the original Branch
Manager issuing these no-dues certificates, because the said person held the
post prior to this witness being posted as liquidator.
26. In response to question No. 3 and 4, CW-1 categorically stated that
he is stating the account position as per the Bank record and that he has
verified the position from Bank record. Again in response to question
No.23, he stated that the account statements are true as per the record of the
Bank.
27. The Bombay High Court in the case of Radheshyam G. Garg v.
Safiyabai Ibrahim Lightwalla, 1987 SCC OnLine Bom 22 = AIR 1988
Bom 361, has held that once an account statement is signed and stamped,
then a certificate as per requirements of Section 2 is implicit therein and
such statements etc. cannot be ignored on hyper-technicalities. It was held
as under :-
13. Mr. Raghuwanshi further, submitted that the original landlady
Asmabai had not intimated the transfer of the suit premises to the
plaintiffs and hence the defendant was justified in ignoring the
plaintiffs' notice dated 21st August, 1975 whereunder they had
intimated the defendant regarding the transfer of the property to
the plaintiffs. Mr. Raghuwanshi submitted that it was open to the
plaintiffs to request Asmabai, their mother, to inform the defendant
that she had transferred the suit premises to the plaintiffs, but that
the plaintiffs did not do. Mr. Raghuwanshi on placing reliance
upon the counter foils of cheque books of the defendant, Exhibits
28/B-1, 2 and 3, Bank pass book, Exhibit 27/B-4 as also the
extract of the accounts produced with the list, Exhibit 55A,
contended that the defendant had paid rent by cheques to Asmabai
by sending the same under certificate of posting, which cheques
had been duly encashed by her. The said payments cover the
period of rent upto to end of February 1977 and the defendant had
deposited rent in Court for the period from March 1977 onwards.
Mr. Raghuwanshi submitted that both the Courts below had erred
in not exhibiting the aforesaid extract of account of the bank which
had been duly signed by the Agent of the Andheri Branch of the
Maharashtra State Co-operative Bank Ltd. The lower appellate
Court by placing reliance on section 2(8) of the Bankers' Books
Evidence Act, 1891 has held that 'certified copy' means a copy of
any entry in the books of a Bank, together with a certificate written
at the foot of such copy that it is a true copy of such entry, that
such entry is contained in one of the ordinary books of the bank
and was made in the usual and ordinary course of business, and
that such book is still in the custody of the bank, such certificate
being dated and subscribed by the principal accountant or
manager of the Bank with his name and official title. According to
the learned Judge since the said extracts of statement of account
had not been signed by the principal accountant or manager as
required and since the same did not bear any date or official seal,
the same could not be treated as certified copy and consequently
the same could not be read in evidence.
14. In my judgment the aforesaid view of the learned Judge of the
lower appellate Court was hypertechnical. The said extract of
account was duly signed by the Agent of the bank. Implicit in it
was a certificate that it was a true copy of an entry contained in
one of the ordinary books of the bank and was made in the usual
and ordinary course of business and that such book was in the
custody of the bank. The detailed ingredients mentioned in the
defining clause 8 of section 2 of Bankers' Books Evidence Act,
1891 for qualifying to be 'certified copy' are not mandatory but
merely directory. Sufficient compliance depending upon facts and
circumstances of each case is enough to qualify a document to be
'certified copy'. I, therefore, hold that the said extract of account
produced at Exh. 55 A is admissible in evidence. The said extract
along with the bank pass-book as also counter-foils of cheque
book undoubtedly support the defence contention that he had paid
the rent to the landlady Asmabai. Though defendant in his reply
dated 29th April, 1977 had positively averred that he had paid rent
by cheques sent to the landlady Asmabai under certificate of
posting, the plaintiff took no steps to examine Asmabai, who was
none else but the mother of the plaintiff. It was open to Asmabai to
step into witness box and depose as to whether the defendant's
case that he had paid rent to her was true or false. In that view of
the matter I hold that the plaintiff is not entitled to a decree for
possession on the ground of default in payment of rent.
28. In the case of T.V. Rajan v. A.S. Sharafudheen, 2003 SCC OnLine
Ker 374, the Kerala High Court dealt with the issue where there was some
defect in the certificate as per the Act of 1891, but the Bank officer had
entered the witness box to prove the details of the account. No questions
were put to him that the account details that he is stating in his deposition,
are not the true position of the accounts. The Kerala High Court accepted
the deposition of the Bank Officer.
29. In the present case, the liquidator of the Bank, who is the ultimate
custodian of record of the Bank under liquidation, has duly proved the
account statements and no-dues certificates by his deposition. Even if there
is any defect in the statements etc. in terms of Section 2-A of Act of 1891,
then it would have been fatal if there was no deposition of Bank officer, and
then the benefit under Section-5 was not available. Here in this case, once
the liquidator has proved that the accounts are not having any outstanding
after January 2018, the said fact is duly proved and established.
30. It is very important that counsel for election was also given
opportunity to ask questions from CW-1, which he conducted virtually like
a cross-examination. However, no suggestion was given to CW-1 that the
no-dues certificate was never given by the Bank, or that it is a false and
fabricated document, and that as on April 2024, there were dues outstanding
in the accounts. Though questions were asked in the manner challenging the
validity of settlement made by Bank with returned candidate in year 2018,
but that is not the subject matter of issue being raised in the present election
petition. There is no ground made out to disbelieve the deposition of the
liquidator of the Bank, who is a Government officer, and appointed as such
by orders of the Registrar. The liquidator discharges functions as per
Section 71 of the M.P. Cooperative Societies Act 1960. These functions
include - to determine the contribution (including debts due) to be made or
remaining to be made to the society, to carry on the business of the society
so far as may be necessary for the beneficial winding up, to compromise all
liabilities and all claims, present or future, certain or contingent, subsisting
or supposed to subsist between the society and a contributory or alleged
contributory or other debtor, etc. and all questions in any way relating to or
affecting the assets or the winding up of the society.
31. Therefore, it has to be and is accordingly held that the returned
candidate did not have any and therefore, did not suppress any liability or
indebtedness on the date of nomination in April 2024 in the loan account of
M/s Priyam Kela Suppliers against Citizen Cooperative Bank, Burhanpur.
Hence, no triable issue survives in the matter.
32. The counsel for election petitioner argued that there was suppression
of assets also, and the existence of the firm M/s Priyam Kela Supplier was
suppressed. No ground has been raised in the election petition that any asset
is held by this Firm, rather the pleading is that there is indebtedness in name
of this Firm. The election petitioner cannot raise a plea which is not
pleaded. The election petition has to proceed on pleadings of the election
petition. In the election petition, it has been vehemently pleaded that the
returned candidate suppressed the existence of Firm M/s Priyam Kela
Suppliers and therefore, suppressed his liabilities towards a public financial
institution. The grounds alleged are under Section 100 (d) (i) and (ii) of the
Act of 1951 and corrupt practices u/s 123 (2) of the said Act.
33. If suppression of asset had been pleaded, then it would have become
debatable whether material facts are pleaded, or something consisting a
triable issue arises, because the candidate is required to disclose his assets
and liabilities. Then the ancillary questions could have arisen in the matter
of affect of such suppression on nomination and on election and whether it
has materially affected the election or has cast undue influence on electors
in terms of Section 123 of Act of 1951. However, there is not a single
whisper in the entire petition, that any asset has been suppressed. What is
alleged is non-disclosure of running a firm, wherein no asset is being
alleged, and rather a liability is being alleged towards a public financial
institution. Therefore, the argument of non-disclosure of assets is an
argument in mere desperation, and nothing else, as it is not founded on any
pleading.
34. In view of the aforesaid discussion, in the considered opinion of this
Court, it would be an exercise in futility to try the present election petition
on merits by allowing the parties to lead evidence, only to be dismissed
subsequently, because no triable issues are made out. As a result,
I.A.No.19879/2024 is hereby allowed and the election petition is hereby
rejected. No costs.
(VIVEK JAIN)
JUDGE
nks
