Civil Writ Petition No.4653 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-25 .1.2011 Vinod Bansal son of Dharam Pal ....Petitioner Versus Financial Commissioner, Cooperation, Punjab and others ....Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Pankaj Gupta, Advocate for the petitioner. Mr.Sartaj Singh Gill, Deputy Advocate General, Punjab for respondent Nos.1 to 3. Mr.Harit Sharma, Advocate for respondent No.4. M ehinder S ingh S ullar , J. (Oral) Tersenessly, the facts, which need a necessary mention for a limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, are that the Citizen Urban Cooperative Bank Limited, Mithapur Branch, Jalandhar City (respondent No.4) (for brevity “the respondent- Bank”) had advanced a loan to the firm M/s Bhim Sen Hukam Chand-principal loanee (respondent No.5), in which, respondent Nos.6 and 7 were the partners. Petitioner Vinod Bansal stood guarantor. As the loanee-respondent No.5 did not return the principal amount as well as interest, therefore, the respondent bank raised a reference of dispute, in view of the provisions of sections 55 and 56 of the Punjab Cooperative Societies Act, 1961 (hereinafter to be referred as “the Act”) for recovery of Rs.54,48,849-89 P together with interest as per certificate (Annexure R4/1). 2. During the course of proceedings, the learned counsel for the respondent-bank made a statement on 19.1.2004 that the record of respondent- bank be treated as evidence. Thereafter, the application (Annexure P1) for dismissal of the reference petition was moved on the ground that since the respondent-bank did not lead any evidence, so, the reference petition be dismissed. Civil Writ Petition No.4653 of 2009 2 The respondent-bank contested the prayer, filed the reply (Annexure P2), moved another application dated 12.4.2004 (Annexure P3) for permission to lead evidence and to file affidavit of Ex-Manager of the Bank by way of evidence, in whose period, the loan was sanctioned to the principal loanee. 3. The Deputy Registrar, Cooperative Societies although disposed of the application dated 9.2.2004 (Annexure P1), but the application dated 12.4.2004 (Annexure P3) filed by the respondent-bank was adjourned, by virtue of order dated 13.8.2004 (Annexure P4). 4. In the wake of notification bearing No.656 dated 20.12.2004, with regard to peculiar jurisdiction, of the competent authority issued revised guidelines. Pursuant thereto, the case (arbitration proceeding) filed by the respondent- bank, against the principal loanee and others, was transferred from the Court of Deputy Registrar to the Court of Joint Registrar, Cooperative Societies for its disposal in accordance with law. 5. Thereafter hearing the learned counsel for the parties, the arbitrator (Joint Registrar) negatived the plea of the petitioner that the respondent bank cannot be permitted to lead evidence, set aside (reviewed) the order (Annexure P4) and fixed the arbitration petition for hearing on merits, by virtue of impugned order dated 8.2.2006 (Annexure P5). 6. The petitioner-guarantor did not feel satisfied and filed the instant writ petition, challenging the impugned order (Annexure P5) invoking the provisions of Articles 226 and 227 of the Constitution of India. That is how I am seized of the matter. 7. Assailing the impugned order, the learned counsel for the petitioner, contended with some amount of vehemence that as the Joint Registrar (Arbitrator) did not have the jurisdiction to review the order (Annexure P4) passed by the earlier Arbitrator-Deputy Registrar, therefore, the impugned order (Annexure P5) is liable to be quashed. In support of his contention, he has placed reliance on the Civil Writ Petition No.4653 of 2009 3 judgments of Hon'ble Apex Court in cases Patel Narshi Thakershi and others v. Shri Pradyumansinghji Arjunsinghji 1971 (3) Supreme Court Cases 844; Harbhajan Singh v. Karam Singh and others AIR 1966 Supreme Court 641 and of this Court in cases Deep Chand and others v. Addl.Director, Consolidation of Holdings, Punjab and another AIR 1964 Punjab 249 and Baldev Singh and others v. The Additional Director, Consolidation of Holdings, Punjab and another 2005(1) L.A.R. 16. 8. On the contrary, the learned counsel for respondent-bank urged that the Deputy Registrar neither allowed nor dismissed the application (Annexure P1) and abruptly adjourned the application (Annexure P3) for leading evidence filed by the respondent-bank, vide order (Annexure P4). Since the Deputy Registrar did not adjudicate upon and decide anything, so, the order (Annexure P4) cannot legally be termed as an order, which itself is void, ab initio and has to be ignored. The argument is that subsequently, the Joint Registrar has rightly clarified the matter and allowed the independent application for producing evidence filed by the respondent bank, by means of impugned order (Annexure P5). Therefore, the impugned order (Annexure P5) independently passed in the wake of application (Annexure P3) did not have the effect of review of order (Annexure P4), as submitted on behalf of the petitioner. 9. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant writ petition in this context. 10. What is not disputed here is that during the course of hearing of the arbitration proceedings, its learned counsel stated that the record of the respondent-bank be treated as evidence. Taking the undue benefit of the said statement, the application (Annexure P1) was moved with the prayer to dismiss the reference petition. The respondent-bank filed reply dated 12.4.2004 (Annexure Civil Writ Petition No.4653 of 2009 4 P2), inter-alia pleading certain preliminary objections of, maintainability of the application, being not verified or supported by an affidavit and vague. It was claimed that since the proceedings before the Arbitrator were summary in nature and the record of the bank is presumed to be evidence, so, the similar statement was made by the counsel on 19.1.2004 that the original record of the bank may be treated as evidence in this case. The statement was not made with the intention to avoid the cross-examination as alleged. Each and every documents executed by the loanee and guarantor were placed on the record and copies of the same were supplied to the opposite side. So, it cannot be said that there is no evidence on the record of the case. The remaining allegations were stoutly denied by the respondent-bank. 11. Not only that, at the same time, the respondent-bank has also moved an application (Annexure P3) for permission to lead evidence. Both the applications came up for hearing before the Deputy Registrar, who has disposed of application (Annexure P1) and adjourned the hearing of application (Annexure P3), by way of order (Annexure P4), which in substance is as under: “After hearing the arguments of the counsels for both the parties and while disposing off the application filed by second party on 9.2.04, the objections raised by the second party in the application were allowed except for the dismissal of the case and the case is adjourned to 10.9.2004 for hearing. On the said date, the arguments on the application filed by the first party on 12.4.04 will be heard.” 12. Such thus being the position on record, now the short and significant question, though important, arises for determination in this petition is, as to whether the order (Annexure P4) is a legal order or not? 13. Having regard to the rival contentions of learned counsel for the parties, to me, the order (Annexure P4) cannot possibly be termed as a legal order. 14. Section 2 (14) CPC defines an order to mean the formal expression of any decision of a Court, which is not a decree. A bare perusal of definition of order would reveal that there must be a formal adjudication of particular issue by Civil Writ Petition No.4653 of 2009 5 the Court, only then it can be termed as a legal order. 15. As is evident from the record that the Deputy Registrar has not decided/adjudicated upon the applications (Annexures P1 and P3) and only adjourned the hearing of application (Annexure P3) and arbitration proceedings on merits in a routine manner. Had he decided the application (Annexure P1) by means of order (Annexure P4), then its effect would have been the dismissal of the main reference petition, as prayed for in the indicated application, but he has only and vaguely observed that the objection raised by the second party in it was allowed except for dismissal of the case and adjourned the main case as well as the application (Annexure P3) for leading evidence filed by the respondent-bank for arguments. Therefore, it cannot possibly be saith that the Deputy Registrar has passed any legal order in this relevant direction. On the contrary, since nothing was decided, so, effect of order (Annexure P4) is only a step in aid for disposal of reference petition as well as application (Annexure P3) filed by the bank to lead evidence as nothing else was adjudicated upon in this context. In this manner, one line vague observation in the order (Annexure P4) cannot legally be termed as an order as contemplated under section 2(14) CPC in this regard. 16. In Patel Narshi Thakershi's case (supra), it was held “that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its order, it is obvious that its delegate could not have reviewed its order. The question whether the Government's order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored. The Subordinate Tribunals have to carry out that order. For this reason alone the order of Mr.Mankodi was liable to be set aside.” 17. Sequelly, in Deep Chand's case (supra), during the consolidation Civil Writ Petition No.4653 of 2009 6 proceeding in a village, holdings were repartitioned, according to the scheme prepared, published and confirmed according to law and all the land owners took possession of their respective holdings. The petitioner therein dug a well and constructed a house on his holding by spending huge amount. One H applied for the consolidation of his Chahi and Nehri land but his prayer was disallowed by the Assistant Consolidation Officer on 26.11.1952. Thereafter, he applied under section 42 of the Consolidation Act urging that he had not been given any area worth -/8/-, but his application was filed after perusing a report called from the Consolidation Officer through the settlement Officer as per order dated 28.5.1956. Thereupon, he again moved the State Government on 3.10.1956 by means of an application under Section 42 of the Act. This application was forwarded to the Director, Consolidation who after calling for the report from the Settlement Officer dismissed it on 27.6.1957. Still another application under Sec.42 of the Act was submitted by H. addressed to the Minister Incharge Consolidation. This was heard and disposed of by the Additional Director on 18.3.1960. The Consolidation Officer was directed to have a look at plots of H and to make suitable recommendations if he was of the opinion that the plots were such as required interference on grounds of equity. The Consolidation Officer made some recommendations and the Additional Director Consolidation by his order dated 18.3.1961 made certain adjustments redistributing the plots. Thus, the Consolidation Officer considerably varied and upset the allotment of holdings of the land finally allotted to the owners as per the scheme prepared, published and confirmed. 18. In other words, the matter was already finally adjudicated upon by the competent authority and the allotment of holdings therein had become final much prior to the varying it by the Additional Director, Consolidation, by way of order dated 18.3.1961. On the peculiar facts and in the circumstances of that case, it was observed that the Additional Director was not competent to recall or review Civil Writ Petition No.4653 of 2009 7 his order on merits of the already finally decided case. The observations of Hon'ble Supreme Court in Harbhajan Singh's case and of this Court in Baldev Singh's case (supra) are also to the same very effect. 19. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the present petitioner to resolve the real controversy between the parties. 20. As discussed here-in-above, the Deputy Registrar did not adjudicate upon or decide the application (Annexure P1) for dismissal of reference petition and order (Annexure P4) is a step in aid to adjourn the case for deciding the reference petition as well as the application (Annexure P3) for leading evidence filed by the respondent-bank and nothing more can be extracted from it. The confusion created by the Deputy Registrar exhibits his paucity of legal knowledge and such meaningless order, lacking legal sanctity, straightway deserves to be ignored. Subsequently, the arbitration case was transferred to the court of Joint Registrar in pursuance of notification dated 20.12.2004, who has rightly cleared the utter confusion created by the Deputy Registrar, by means of impugned order (Annexure P5), the operative part of which is as under:- “Sh.Dua, counsel for the first party while starting the arguments, contended that the application filed by the respondents was not to be considered by Deputy Registrar, Cooperative Societies, Jalandhar because said application was filed by some person i.e. Attorney of Shami of second party whereas no proof was produced in said court regarding his being attorney. Sh.Dua while rebutting this argument of Sh.Bhatia and holding it to be false, stated that this arbitration case relates to the loan advanced by the first party i.e. Bank to the second party and all the proceedings were conducted on the basis of written record. Sh.Dua further stated that the basis of decision given with regard to loan dispute is record only. Therefore, the decision given by the Deputy Registrar, Cooperative Societies, Jalandhar on the basis of record, cannot be challenged. As per Sh.Dua, the second party has not denied the fact of taking loan from the first party and in such circumstances when the second party admits the taking of loan, then how the legal proceedings initiated against it with Civil Writ Petition No.4653 of 2009 8 regard to payment can be held wrong. As per Sh.Dua, this argument of Sh.Bhatia can be considered that objection can be raised regarding amount being less/excess payable by the second party to the first party but the entire arbitration case cannot be dismissed on this basis that bank had not produced any witness in this case. Sh.Dua further contended that the fact that the Deputy Registrar, Cooperative Societies, Jalandhar forwarded this case to this Court or after hearing the application of Sh.Bhatia, granting another date of adjournment, is a proof that Deputy Registrar has not disposed off this case. In the last, Sh.Dua prayed for continuing the hearing of the case and for disposing off the same so that the bank could recover its loan amount. After hearing the arguments of both the parties and perusal of the case file, I have come to the conclusion that the order dated 13.8.2004 passed by Deputy Registrar, Cooperative Societies, Jalandhar is not correct. On the one hand, he has ordered to close the case and on the other hand has fixed the next date of hearing. Besides this, Sh.Bhatia counsel for the respondents had given an application but had not attached any power of attorney purported to have been given. From this angle also, there is a discrepancy in this case. Therefore, keeping in view the above said facts, I set aside the order dated 13.8.2004 passed by the Deputy Registrar, Cooperative Societies, Jalandhar and this arbitration case is ordered to be fixed for hearing in this court. The next date of hearing in this case is fixed for 22.2.2006.” 21. As the order (Annexure P4) cannot possibly be termed a legal order as envisaged under section 2(14) CPC, therefore, question of its review, by virtue of impugned order (Annexure P5) did not arise at all in the instant case. Hence, the contrary arguments of learned counsel for the petitioner “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. Above-all, every Court/Tribunal has an inherent jurisdiction and power of review to clear such unwarranted confusion created, in order to decide the real controversy between the parties and to meet the ends of justice. 22. There is another aspect of the matter, which can be viewed from a different angle. What is not disputed here is that the principal loanee had taken loan and as it did not pay the amount alongwith interest, therefore, the respondent Civil Writ Petition No.4653 of 2009 9 bank raised a dispute of arbitration for recovery of Rs.54,48,849-89 P with interest. If such frivolous objections are sustained, then no recovery is possible from such loanee by the cooperative institutions, which would be detrimental to the cooperative movement. Thus, the petitioner cannot possibly be permitted to take the benefit of such technicality, which is otherwise not legally maintainable, as depicted here-in-above. Moreover, it is well recognized principle of law that all the parties are entitled to lead the evidence in order to substantiate their respective pleas, which is essential to decide the real controversy between the parties in a fair trial. This is precisely the import of law of the impugned order (Annexure P5) passed by the Joint Registrar (Arbitrator). 23. Meaning thereby, the Joint Registrar, in its impugned order (Annexure P5) has taken a legal and pragmatic view of the subject-matter, rightly concluded to decide the case on merits and recorded the valid reasons in this relevant connection. Such order cannot legally be interfered with, in exercise of limited writ jurisdiction of this Court, unless and until, the same is perverse and without jurisdiction. As no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, therefore, the impugned order deserves to be and is hereby maintained in the obtaining circumstances of the case. 24. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 25. In the light of the aforesaid reasons, as there is no merit, therefore, the instant writ petition is hereby dismissed as such. (Mehinder Singh Sullar) 25.1.2011 Judge AS Whether to be referred to reporter? Yes/No