Telangana High Court
Ch.Sudhakar Raju vs Tirumala Coop Urban Bank ... on 11 September, 2024
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE J.SREENIVAS RAO
WRIT APPEAL No.1044 of 2014
JUDGMENT:
(Per the Hon'ble Sri Justice J. Sreenivas Rao)
This intra-court appeal is filed by the appellant aggrieved
by the order dated 11.07.2014 passed by the learned Single
Judge dismissing W.P.No.18684 of 2009 and confirming the
order dated 03.08.2009 passed by the Andhra Pradesh Co-
operative Tribunal, Hyderabad, in C.T.A.No.238 of 2003.
2. Heard Sri Vedula Srinivas, learned senior counsel
representing Smt.V.Chitralekha, learned counsel for the
appellant, Sri B.S.Prasad, learned senior counsel representing
Sri K.B.Ramanna Dora, learned counsel for respondent No.1-
Bank, and Smt.B.Mohana Reddy, learned Government Pleader
for Cooperation Department appearing for respondent Nos.
2 and 3.
3. Brief facts of the case:
3.1. Respondent No.1 is Tirumala Co-operative Urban Bank
Limited conducting business of banking and grant loans to its
members. The appellant approached respondent No.1 for a loan
of Rs.10,00,000/- and opened a savings account No.424 on
23.01.1999. Respondent No.1 after scrutiny of the value of the
collateral security sanctioned loan to an amount of
Rs.8,00,000/- as Secured Overdraft, vide SEOD A/c.No.32, on
17.02.1999 and the rate of interest agreed was 5% over the
bank's prime lending rate with a minimum of 20% per annum
with quarterly rests and the EMI was fixed at Rs.87,710/-. The
appellant executed a demand promissory note on 17.02.1999
for an amount of Rs.8,00,000/- agreeing to pay the interest with
quarterly rests from the date of executing the demand
promissory note. After obtaining approval of the governing body
and all the directors, respondent No.1 disbursed the loan
amount on 18.02.1999 by deducting Rs.10,065/- towards share
capital, out of sanctioned loan of Rs.8,00,000/-, and paid
Rs.7,89,395/-. The appellant deposited the title deeds relating
to his property vide letter dated 25.02.1999. Respondent No.1
has got a sister concern by name Tirumala Chit Funds Private
Limited, which runs chit fund business, and the appellant
herein was a subscriber to three chits for a total sum of
Rs.11,00,000/-. The appellant became defaulter and not paid
arrears, despite respondent No.1 issued notices on 23.07.1999,
13.03.2001 and final notice on 25.04.2001 requesting him to
remit the entire loan amount together with further penal
interest accrued thereon.
3.2. Respondent No.1 filed A.R.C.No.322 of 2001-J1 before
respondent No.2-Arbitrator for recovery of an amount of
Rs.7,38,079/- with interest from 01.07.2001. The appellant
entered his appearance through counsel, but no counter or
documents have been filed and ultimately remained ex parte.
Respondent No.2 passed an Award on 19.11.2002 in favour of
respondent No.1. Aggrieved by the same, the appellant filed
C.T.A.No.262 of 2002 before respondent No.3-A.P. Cooperative
Tribunal at Hyderabad. Respondent No.3 allowed the appeal on
19.07.2002 by setting aside the Award dated 19.11.2002 and
remitted back to respondent No.2 for fresh consideration on
merits. Respondent No.2 once again passed Award on
21.04.2003 in A.R.C.No.25 of 2003. Aggrieved by the same, the
appellant filed C.T.A.No.238 of 2003 before respondent No.3 and
the same was allowed on 12.06.2006.
3.3. Questioning the same, respondent No.1 filed
W.P.No.14428 of 2006 before the erstwhile High Court of
Andhra Pradesh, Hyderabad, and the same was allowed on
08.12.2006 and the matter was remitted back to respondent
No.3 for consideration afresh. Pursuant to the above said order,
respondent No.3 after considering the oral and documentary
evidence on record dismissed C.T.A.No.238 of 2003, by its
judgment dated 03.08.2009. Questioning the said judgment,
the appellant filed W.P.No.18684 of 2009 before erstwhile
combined High Court for the State of Telangana and Andhra
Pradesh, Hyderabad, and the learned Single Judge dismissed
the same, by its order dated 11.07.2014. Aggrieved by the
same, the appellant filed this intra-court appeal.
Submissions of learned senior counsel for the appellant:
4. Learned senior counsel submitted that the appellant had
discharged entire loan amount to respondent No.1. In spite of
the same, respondent No.1 has not returned the documents,
which are pledged at the time of availing loan, on the other
hand, initiated arbitration proceedings for recovery of the
alleged amount from the appellant. Respondent No.2, without
giving reasonable opportunity to the appellant, passed ex parte
Award on 21.04.2003, especially without giving any reasons,
and the same is non est in the eye of law. He further contended
that even if the appellant was made set ex parte in Arbitration
Proceedings in A.R.C.No.25 of 2003, respondent No.2 ought to
have passed Award by giving reasons. Hence, the Award passed
by respondent No.2 is contrary to Rule 49 of the Andhra
Pradesh Co-Operative Societies Rules, 1964 (for short, 'the
Rules').
4.1. He further contended that the appellant filed appeal, vide
C.T.A.No.238 of 2003, before respondent No.3 along with all
documents with regard to payment of total loan amount
including certificate dated 24.02.2001 issued by respondent
No.1, wherein it is specifically stated he paid the principle
amount of Rs.8,00,000/- along with interest by way of cash
payments and the said document was marked as Ex.B.1 and he
had discharged his initial burden. However, respondent No.3
disbelieved the same merely on the alleged ground that PW.1 in
his evidence disputed about payment of the amount by the
appellant which is mentioned in Ex.B.1. Though PW.1 has not
denied Ex.B.1, only denied the payment made by the appellant
in the absence of any evidence.
4.2. Learned senior counsel vehemently contended that PW.1
has not denied about the issuance of Ex.B.1, on the other hand,
PW.1 denied the two sentences, which reads as follows:
"The above interests are taken under "Housing Loan
Scheme" only.
The principle amount of Rs.8,00,000/- along with interest
has already been discharged by cash payments."
In the absence of any iota of evidence, respondent No.3
erroneously come to the conclusion that the last two sentences
in Ex.B.1 were in dark colour and not tallying with colour of
earlier typing and learned Single Judge also without properly
appreciating the same dismissed the writ petition simply relying
upon the judgments of the Hon'ble Apex Court in Syed Yakoob
v. K.S. Radhakrishnan and others 1, S.R. Bommai and others
v. Union of India and others 2 and Mohd. Shahnawaz Akthar
and another v. First Additional District Judge, Varanasi and
others 3 holding that the scope of judicial review under Article
226 of the Constitution of India is very limited and writ Court
cannot re-appreciate the findings recorded by the Tribunal,
especially while exercising the appellate jurisdiction to consider
the oral and documentary evidence on record and give specific
findings and the same is contrary to law.
4.3. In support of his contention, he relied upon the judgment
of the Hon'ble Apex Court in Central Council for Research in
AIR 1964 SC 477
AIR 1994 SC 1918
(2001) 5 SCC 510
Ayurvedic Sciences and anr. V. Bikartan Das and Ors 4,
wherein it was held that findings of fact based on 'no evidence'
or purely on surmises and conjectures or which are perverse
points could be challenged by way of a writ of certiorari. Hence,
the impugned order passed by the learned Single Judge
confirming the judgment of respondent No.3 as well as the
Award passed by respondent No.2 is contrary to law.
Submissions of learned senior counsel for respondent No.1:
5. Learned senior counsel contended that the appellant has
not paid the amounts to respondent No.1. Respondent No.2 has
given several opportunities to the appellant in A.R.C.No.25 of
2003, but he has not filed counter/objections nor produced any
evidence. Respondent No.2, after considering the claim and also
documentary evidence on record and after following the due
process as contemplated under law, passed Award in
A.R.C.No.25 of 2003 on 21.04.2003. Aggrieved by the same, the
appellant filed statutory appeal, vide C.T.A.No.238 of 2003,
before respondent No.3, wherein the appellant for the first time
filed Ex.B.1 in the year 2006 alleging that he paid principle
amount and interest, though he has not paid the said amount.
The appellant himself included last two sentences in the said
AIR 2023 SC 4011
document Ex.B-1, whereas the document Ex.A.11 does not
contain the said two sentences. Respondent No.3 after
evaluating the oral and documentary evidence adduced by both
the parties dismissed the appeal by giving cogent findings and
disbelieved the version of the appellant in respect of alleged
payment of loan amount.
5.1. He further contended that the appellant had not
approached respondent No.3 as well as this Court with clean
hands and Ex.B.1 document is a fabricated one. Hence, the
appellant is not entitled to the equity relief enshrined under
Article 226 of the Constitution of India and the learned Single
Judge had rightly dismissed the writ petition; and he is not
entitled to any relief in the present writ appeal.
Analysis of the case:
6. Having considered the rival submissions made by the
respective parties and after perusal of the material available on
record, it reveals that the appellant had borrowed an amount of
Rs.8,00,000/- on 17.02.1999 vide loan account No.SEOC 32
from respondent No.1 and he committed default in repayment of
the loan amount. Respondent No.1 initiated the proceedings for
recovery of the amount due from the appellant and filed
Arbitration Application before respondent No.2 in A.R.C.No.322
of 2001-J1 invoking the provisions of Section 62 of the Andhra
Pradesh Cooperative Societies Act, 1964 (for short, 'the Act') and
the same was allowed on 19.11.2002. Aggrieved by the same,
the appellant filed C.T.A.No.262 of 2002 before respondent No.3
and the same was allowed and remitted back to respondent
No.2, by its judgment dated 19.07.2002. Thereafter, respondent
No.2 after following due procedure had passed Award in favour
of respondent No.1 on 21.04.2003. Questioning the same, the
appellant filed C.T.A.No.238 of 2003 and the same was allowed,
by its judgment dated 12.06.2006. Aggrieved by the same,
respondent No.1 has filed W.P.No.14428 of 2006 before
erstwhile High Court of Andhra Pradesh at Hyderabad and the
same was allowed and remitted the matter to respondent No.2
for consideration afresh and with a direction to give opportunity
to the parties to lead evidence, both oral and documentary, and
also permit them to get the genuineness of any of the
documents examined by experts, if necessary, by its judgment
dated 08.12.2006.
7. In the above said C.T.A.No.238 of 2003, the appellant was
examined as PW.1 and on his behalf Exs.B.1 to B.34 documents
were marked and on behalf of respondent No.1, Mr.M.V.Ramana
Rao, who is the Manager of the Bank, was examined as RW.1
and Exs.A.1 to A.55 documents were marked. Respondent
No.3 after considering the contentions of the respective parties,
oral and documentary evidence on record and also after hearing
both the parties dismissed the appeal holding that the claim of
the appellant that he paid principal amount of Rs.8,00,000/-
along with interest in favour of respondent No.1 was not true
and correct and respondent No.1 denied the same including
Ex.B1 document, especially two sentences which are mentioned
in Ex.B1 are interpolation. Respondent No.3 after examining
Ex.B1 and Ex.A11 documents observed that the last two
sentences typing in Ex.B1 document was in dark colour and not
tallying with colour of earlier typing. Respondent No.3 further
observed that the appellant has not produced any iota of
evidence that he paid the amount by way of cash to respondent
No.1, especially respondent No.1 filed statement of accounts of
particular period, whereby it is revealed that respondent No.1
has not received any amounts as alleged by the appellant.
Respondent No.3 further held that till 2006, the appellant has
not placed the documents at any point of time and he filed
Exs.B1 and B.15 documents in the year 2006, for the first time
i.e., on 13.03.2006 and 14.03.2006, though Ex.B1 document
pertains to 24.02.2001, and also observed that if the appellant
really discharged the amount through Ex.B1, he has not made
any effort for return of the documents, which are in the custody
of respondent No.1 or approached any Court of law.
8. It is also pertinent to mention here that the appellant had
not filed objections or produced any documents or participated
in the Arbitration proceedings twice, in spite of the matter
remitted back to respondent No.2 at the instance of appellant in
C.T.A.No.262 of 2001 on 19.07.2002 and C.T.A.No.238 of 2003
on 03.08.2009.
9. The judgment relied upon by the learned senior counsel
for the appellant is not applicable to the facts and
circumstances of the case on the ground that respondent No.3
considered the oral and documentary evidence on record and
passed the impugned judgment dated 03.08.2009 by giving
cogent reasons.
10. It is pertinent to mention here that the appellant relying
upon Ex.B.1 contended that he had discharged the loan
amount, whereas RW.1 denied the same. It is settled principle
of law that the party who is claiming the benefit under the
document, he has to prove and establish that the said
document is genuine one by adducing necessary evidence under
law. It is also relevant to mention here that this Court, while
setting aside the judgment dated 12.06.2006 passed in
C.T.A.No.238 of 2003, remitted the matter to respondent No.3
and granted liberty to both the parties to lead evidence, both
oral and documentary, and also permitted them to get the
genuineness of any of the documents examined by experts, if
necessary. In spite of the same, the appellant had not taken
any steps to prove Ex.B.1 document through expert by filing
necessary application nor made any request before respondent
No.3 to send Ex.B.1 document to the expert's opinion nor filed
any application for summoning the concerned officer, who
issued Ex.B.1 document, for recording evidence. However, the
appellant simply filed Ex.B.1 document and had not discharged
his initial burden, on the other hand, he shifted the same upon
respondent No.1 and the same is not permissible under law.
11. It is also pertinent to mention here that the Appellate
Tribunal is a fact finding Court/Tribunal while exercising the
appellate jurisdiction and after appreciating the oral and
documentary evidence on record and after hearing the parties
passed the judgment on 03.08.2009 by giving cogent findings
and the learned Single Judge also after considering the
contentions of the respective parties and after taking into
consideration the principles laid down by the Hon'ble Apex
Court dismissed the writ petition.
12. For the foregoing reasons, this Court does not find any
ground in the writ appeal to interfere with the impugned order
dated 11.07.2014 passed by the learned Single Judge to
exercise the powers conferred under clause 15 of Letter Patent.
13. Accordingly, the writ appeal is dismissed, without costs.
Miscellaneous applications pending, if any, shall stand
closed.
___________________________________
ALOK ARADHE, CJ
____________________________________
J. SREENIVAS RAO, J
Date: 11.09.2024
mar
