*THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY +WRIT PETITION No.3574 of 2001 % Dated: 26-11-2008 # Dr. S.K. Singh Petitioner VERSUS $ The Cooperative Tribunal, Hyderabad & others. Respondents ! Counsel for the petitioner : Sri D. Prakash Reddy senior Counsel assisted by Sri T.S. Praveen Kumar ^ Counsel for respondents 1&2: GP for Cooperation Counsel for respondent No.3 : Sri K. Raghuveer Reddy Counsel for respondent No.5 : Sri P. Sriraghuram <GIST: > HEAD NOTE: ? Cases referred 1. AIR 1948 Madras 320 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SIXTH DAY OF NOVEMBER, TWO THOUSAND EIGHT ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.3574 of 2001 Between: Dr. S.K. Singh … Petitioner AND The Cooperative Tribunal, Hyderabad & others. … Respondents Counsel for the petitioner : Sri D. Prakash Reddy Senior Counsel assisted by Sri T.S. Praveen Kumar Counsel for respondents 1&2: GP for Cooperation Counsel for respondent No.3 : Sri K. Raghuveer Reddy Counsel for respondent No.5 : Sri P. Sriraghuram This Court made the following: THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.3574 of 2001 JUDGMENT:- This case unfolds the story of a victim of fraud perpetrated on him by respondent No.4 with the active connivance of respondent No.3 and unjust and unwarranted intervention with the arbitral award by the Andhra Pradesh Cooperative Tribunal headed by a responsible judicial officer. The following facts unravel this squalid affair: The petitioner is a member of respondent No.3 Society (for short, ‘the Society’) with membership No.1498 and was allotted plot bearing No.1012 admeasuring about 1100 square yards on 04.08.1975 by the Society. The petitioner paid the entire cost of the plot in instalments and was corresponding with the Society for allotment of an alternative plot. The petitioner lives in USA. On 23.12.1992, he addressed a letter to the Society requesting it to furnish information to his GPA, Dr. Dinesh Singh (for short, ‘the GPA’) regarding his membership. In reply thereto, the Secretary of the Society wrote letter dated 05.01.1993, wherein he informed that the petitioner’s membership and his plot were transferred to his ‘sister’ Smt. V. Aruna wife of Ashok Rao, H.No.1-2-51, Sri Krupa Towers, Flat No.C-1, Domalguda, Hyderabad, respondent No.4 herein, based on the petitioner’s letter dated 04.07.1992 and notarized affidavit dated 06.07.1992. The Secretary further informed that the petitioner is not a member of the Society and that if any further information is required, he may write to the Society or visit it. Shocked by this letter, the petitioner wrote back on 22.03.1993, wherein he informed that respondent No.4 is neither his sister nor in any way related to him, that the alleged letter of transfer and the affidavit relating thereto were forged with the mala fide intention of grabbing his land by misrepresentation and that the entire transaction was allowed to take place by the Society without verification of genuineness of the transfer letter and the affidavit. The petitioner requested the Society to enquire into the matter and restore his membership and the plot by cancelling the transfer made in favour of respondent No.4. The petitioner also informed in the said letter that he was authorizing his nephew Dr. T. Dinesh Kumar Singh through GPA duly executed by him to take appropriate steps in the matter. As the Society failed to take any steps to restore his membership and the plot to him, the petitioner caused legal notice dated 11.11.1993 issued to the Secretary of the Society, wherein the Society was called upon to take necessary action in that regard by revoking the transfer made in favour of respondent No.4 and restore the membership and re-allot the plot in his favour, failing which necessary steps including criminal action will be taken against the Society and all the persons concerned with the alleged fraud. The Secretary of the Society got a reply sent through his lawyer wherein he inter alia referred to the previous correspondence the petitioner had with the Society from the time of allotment in the year 1975. Reference to purported letter dated 04.07.1992 of the petitioner and the notarized affidavit dated 06.07.1992 was made in the said reply notice and the Society took the stand that it has transferred the membership and plot acting bona fide on the said documents. It is inter alia stated “The Society is not interested in any way, except looking after the activities of the Society. When once the Society receives a letter and the affidavits in the usual course of business, the Managing Committee of the Society has approved the transfer after making the verification with the records and correspondence already available with the Society and since the transfer has been effected, the tenor of your notice to ignore the affidavits and the letters at this belated stage does not arise. Your client is advised to take legal recourse”. It is further maintained that the Society is not aware of any fraud practiced by respondent No.4 and it cannot sit over the judgment and decide whether the letter and the affidavits are forged or not and that the same falls within the purview of the Courts and as the Managing Committee of the Society already acted upon the transfer letter and the notarized affidavit in good faith and effected transfer, the question of restoring back the plot and membership did not arise. A further reply notice to the said reply notice of the Society was issued by the petitioner through his lawyer on 14.02.1994, wherein he reiterated his stand that the alleged letter and the affidavit, on the basis of which the transfer was effected, were forged and fabricated documents. The petitioner charged the Society of conspiring with and shielding respondent No.4 in the entire fraud. A copy of the said notice was marked to respondent No.4 “for information”. A day after the copy of legal notice was sent to respondent No.4, she and respondent No. 5 filed separate affidavits before the Society requesting for transfer of the plot from her to respondent No.5. A more detailed account of the events will be given in the later part of this judgment. The petitioner initiated arbitration proceedings before the Cooperative Sub-Registrar under Section 61 (1) (b) of the Andhra Pradesh Cooperative Societies Act, 1964 (for short, ‘the 1964 Act’) impleading the Society and respondent No. 4 as parties thereto. On 17.03.1994, the Arbitrator granted an order of injunction restraining the Society and respondent No. 4 from selling, constructing and transferring the property, but in the meantime the Society effected transfer of the property in favour of respondent No.5 on 28.02.1994. After receiving necessary pleadings and considering oral and documentary evidence let in by the parties, the Arbitrator passed award on 10.05.1995 in ARC.No.4 of 1994 in favour of the petitioner. The said award was questioned by the Society in CTA.No.182 of 1997 before respondent No.1 Tribunal (for short, ‘the Tribunal’). The said appeal was allowed by the Tribunal by order dated 30.11.2000, which is called in question in this writ petition. In the appeal, respondent No.5 got himself impleaded as respondent No.4 and supported the case of the Society. The Tribunal framed three points, which are as under: “1. Whether Dr. Dinesh has the legitimate General Power of attorney in his favour so as to represent Dr. S.K. Singh in this case? and if so, whether he is entitled to maintain this case? 2. Whether the 2nd respondent transferred the membership of the petitioner and the plot No.1012 in favour of the 1st respondent V.Aruna basing on the forged letter dated 04.07.1992 and affidavit dated 06.07.1992? and if so, whether such transfer is illegal? 3. Whether the petitioner is entitled for re-transfer of the membership as well as the said plot in his name? 4. To what relief?” The Tribunal held all the four points against the petitioner. Sri D. Prakash Reddy, learned Senior Counsel appearing for the petitioner contended that the whole approach of the Tribunal in reversing the award passed by the Arbitrator is fundamentally erroneous and that in the face of the documentary as well as circumstantial evidence, which clinchingly established fraud played by respondent Nos.3 and 4, the Tribunal committed a serious legal error in overlooking the evidence adduced on behalf of the petitioner and set aside the award on the grounds, which are totally extraneous and unsound. The learned counsel further submitted that respondent No.4, who falsely claimed that she is the sister of the petitioner, got the membership and plot fraudulently transferred in her favour and neither respondent No.4 nor respondent No.5, who is a subsequent transferee, derived any legal right over the plot in question. The learned Senior Counsel also contended that the Tribunal unjustly rejected unimpeachable evidence, which established beyond any doubt the fraud played by respondent Nos.3 to 5 and non-suited the petitioner on the ground that Dr. Dinesh Singh did not hold valid GPA. Sri K. Raghuveer Reddy, learned counsel representing respondent No.3 Society sought to support the findings of the Tribunal. Counsel for respondent No.4 was not present during any of the hearings though the case underwent adjournments several times commencing from 06.09.2008. Sri P. Raghuram, learned counsel appeared for respondent No.5 and made his submissions. He submitted that while he does not want to argue on the correctness or otherwise of the order of the Tribunal, he would confine his arguments only to the provisions of Section 41 of the Transfer of Property Act, 1882 (for short, ‘the 1882 Act’). The learned counsel submitted that respondent No.5 is a bona fide transferee from respondent No.4, who is the ostensible owner, for consideration and that respondent No.5 took reasonable care to ascertain that the transferor has power to make the transfer and acted in good faith. He therefore contended that as respondent No.5 satisfied the ingredients of Section 41, the transfer is not voidable on the ground that the transferor was not authorized to make it. Before dealing with the contentions advanced by the learned counsel for respondent No.5, I would like to first examine whether the order passed by the Tribunal is sustainable in law. On point No.1 framed by the Tribunal, it held that the GPA failed to file the original General Power of Attorney before the Arbitrator and that the same is fatal, for, failure to produce the original GPA denied an opportunity to the Tribunal to compare the signature of the principal with his admitted signature and find out whether the petitioner has really executed the GPA authorizing Dinesh Singh to represent him in the case. The Tribunal further reasoned that when the respondents have challenged the competence of Sri Dinesh Singh to represent the petitioner the burden is heavy on the latter to prove that he has been authorized to file this case on behalf of the principal. The Tribunal therefore concluded that Sri Dinesh Singh did not possess the legitimate GPA in his favour to represent the petitioner and that therefore he has no locus standi to maintain the case. In rendering the finding that Sri Dinesh Singh failed to file the original GPA, the Tribunal failed to note the evidence of Sri Dinesh Singh and the specific observation made by the Arbitrator in his award. In his chief-examination, Sri Dinesh Singh, who deposed as PW.1, stated “I am the GPA holder of Dr.S.K. Singh, the petitioner herein. Ex.A1 is the original GPA.” In the award, the Arbitrator stated “Ex.A1 is the original GPA. Ex.A2 is the certified copy of the passport.” The Arbitrator also stated in his award at another place “I have perused the original General Power of Attorney dated 12.07.1993, wherein Sri S.K. Singh has authorized Dr. D.K.Singh as his General Power of Attorney holder duly signed before second Secretary Embassy of India Washington D.C. and signed and sealed by second Secretary”. Very curiously the Tribunal omitted to refer to these aspects and made a wholly incorrect observation that the Arbitrator was absolutely silent and did not discuss anything on the crucial and vital point of non-filing of the original GPA. At the hearing of this writ petition, it has come out that after the award was passed by the Arbitrator, the GPA of the petitioner has taken back the original GPA by submitting a photo copy before the Arbitrator in order to file the same in the pending criminal case. After hearing the writ petition in part on 19.09.2008, this Court adjourned the case directing the GPA of the petitioner to produce the original GPA. Accordingly, during the subsequent hearing of the case, the original GPA was produced before the Court by the learned counsel for the petitioner on 23.10.2008. Learned counsel for respondent Nos.3 and 5 have not made any submissions on the genuineness of the original GPA. I have carefully perused the said GPA and am satisfied that the copy made available in the record of the Arbitrator, which was transmitted to the Tribunal, is the authentic copy of the original GPA. In my view, the Tribunal made an unnecessary issue out of a non-issue by delving into the purported non-genuineness of the GPA. Without regard to the serious nature of the dispute raised before it, the Tribunal gave undue importance to this aspect and in the process allowed itself to digress from the real issue involved before it, namely; whether there was fraudulent transfer of the valuable property by respondent No.3 in favour of respondent No.4 and later by respondent No.4 in favour of respondent No.5. As the genuineness of the GPA is established beyond any cavil of doubt, the finding of the Tribunal on point No.1 that Dr.Dinesh Singh had no locus standi to initiate arbitration proceedings is unsustainable and this finding is accordingly reversed. With regard to the findings on point Nos.2 and 3, in support of the plea put-forth on behalf of the petitioner that the transfer was fraudulent and the two letters, namely, 09.05.1992 and 04.07.1992 purportedly addressed by the petitioner from Guntur address and also the alleged affidavit of the petitioner attested by a notary at Hyderabad on 06.07.1992 were out and out forgery, the GPA of the petitioner relied on many circumstances. In his evidence, he deposed that for more than 10 years the petitioner was residing in USA and his last visit to India was on 14.09.1990 and he went back to USA on 28.09.1990. From this circumstance, he wanted to prove that there was no possibility of the petitioner addressing the abovementioned two letters and signing the affidavit on the abovementioned date in Guntur. To substantiate this plea, the GPA filed the certified copy of the petitioner’s passport, which was marked as Ex.A2. He also filed Ex.A3 passport, the validity of which expired on 05.07.1992. The GPA also clearly deposed that respondent No.4 was not the sister of the petitioner and that the signatures on letters dated 04.05.1992 and 04.07.1992 and affidavit dated 06.07.1992 are not of the petitioner and are forged. The GPA, besides filing a copy of letter dated 22.03.1993 addressed by the petitioner to the Society, also identified the signature of the petitioner at two places on document dated 21.12.1992 produced by the Society, which was marked as Ex.B1. He categorically stated that the signature found in Ex.A1 (the original GPA) on all papers and on Ex.B1 are that of the petitioner. He also deposed that the signature contained on letter dated 04.07.1992 does not belong to the petitioner and the same is forged and that the signature on letter dated 09.05.1992 was also not of the petitioner. To the suggestion put forth on behalf of the Society that he was deposing falsely in disputing the signatures of the petitioner, he empathetically denied the same. When the Society gave a suggestion to the GPA that the signatures on affidavit dated 06.07.1992 and Exs.A1 and B1 are of the petitioner, he specifically replied that the signature on affidavit dated 06.07.1992 is not the same as that on Exs.B1 and A1. The counsel for respondent No.4 has not subjected the GPA to any cross-examination with regard to the genuineness of letters dated 09.05.1992 and 04.07.1992 and the affidavit dated 06.07.1992. No suggestions whatsoever were put by the counsel for respondent No.4 to the GPA that the said documents on the basis of which transfer was made by the Society in favour of his client were genuine. Though the Secretary of the Society examined himself as RW.1 and tried to establish that the two letters (Exs.B3 and B4) and the notarized affidavit (Ex.B5) are genuine documents, respondent No.4 has not even examined herself. The Tribunal held that non-examination of the petitioner was fatal. The basis for this finding is that he is the only competent person to deny execution of the two letters and the affidavit and rushed to the conclusion that in order to make a wrongful gain the GPA used the name of the petitioner and filed the case unauthorizedly. This finding is absolutely without any basis whatsoever. The Tribunal wittingly or otherwise glossed over the fact that the petitioner has been in USA and as per the evidence produced on his behalf he has last visited India in the year 1990. As he was unable to prosecute his case personally, he executed the power of attorney in favour of Sri Dinesh Singh, who is no other than his own nephew. On these admitted facts, there was no warrant for the Tribunal to presume from the non-participation of the petitioner in the proceedings before the Arbitrator that Sri Dinesh Singh filed the case unauthorizedly for wrongful gain. The Tribunal further failed to consider the documentary evidence filed before the Arbitrator, the authenticity of which is not and for that matter cannot be disputed, which established beyond any pale of doubt that Exs.B3 to B5, the two letters and the affidavit are forged and to establish this fact there was no need for the presence of the petitioner. A perusal of Ex.A7, the reply notice got issued through the Society’s lawyer makes it evident that the Society was well aware of the fact that the petitioner had been corresponding with it from USA and as recent as 14.03.1992, a few days before controversial letter dated 09.05.1992 (Ex.B3) was purportedly written by the petitioner, he wrote letter to the Society requesting for demarcation of his plot. It was categorically stated in the said reply notice “All through the original member was corresponding with the Society from America”. It was also stated that the Society received letter dated 21.10.1992, wherein the petitioner attested the signature of his GPA Dr. Dinesh Singh and also an undated letter received on 21.12.1992 (Ex.B1) bearing USA address requesting for information regarding his plot number and membership number and authorizing his GPA Dr.Dinesh Singh to receive the particulars. Thus, when the Society has received umpteen number of letters containing the original signatures of the petitioner, wherein he denied the execution of the two letters and the notarized affidavit, it is beyond one’s comprehension that the Tribunal termed the GPA as an unauthorized person intending to make unjust enrichment. The Tribunal failed to consider that these letters addressed by the petitioner, far from being disputed, are admitted by the Society. The Arbitrator summoned original application of the petitioner filed for allotment of plot to compare his signature with the signature found on affidavit dated 06.07.1992. The Society failed to produce the said application on the ground that it is not traceable. That the Secretary of the Society, RW.1, deliberately withheld the said application is evident if his cross-examination is perused. He has clearly stated therein as under: “I never saw the plaintiff Sri S.K. Singh and RI. I do not know who submitted the Ex.B3 to B6 in my society office. We have compared the signatures of Sri S.K.Singh with that of original application and from correspondence.” Having said so, RW.1 stated “We did not address any letter to S.K. Singh enquiring about the application dated 04.05.1992, Exs.B3 and B4 and B5, as there is no need since required documents as per procedure were produced. I do not remember whether I have seen the original application submitted by S.K. Singh while joining as a member after I assumed office.” This material contradiction in the evidence of RW.1 clearly goes to show that he was not a truthful witness and he deliberately withheld the original application for membership filed by the petitioner before the society from being filed before the Arbitrator. The Arbitrator rightly drew an adverse inference in this regard. Be that as it may, when the initial burden was discharged by the petitioner through his GPA, respondent Nos.3 and 4 failed to discharge the onus shifted on them to show that Exs.B3 to B5 are not forged documents. Even in the absence of original application of the petitioner, the record contained the original signatures of the petitioner on documents such as Ex.A1, the original GPA, Ex.A5, letter dated 22.03.1993 and Ex.B1, letter written by the petitioner to the Society on 21.12.1992. Indeed, PW.1, GPA was subjected to cross-examination with reference to these signatures to elicit from him that the admitted signatures of the petitioner on Exs.A1 and B1 and the disputed signatures on Exs.B3 to B5 are one and the same. But the GPA stood firm on his stand that the signatures on Exs.B3 to B5 are not of the petitioner. The only manner by which respondent Nos.3 and 4 would have discharged the onus shifted to them was by sending the signatures contained on Exs.B3 to B5 to a handwriting expert for comparison with the admitted signatures contained on Exs.A1, A5 and B1. They have not made any such effort in this regard. Surprisingly, the Tribunal failed to discuss this crucial aspect. The Tribunal also committed a serious error in brushing aside another material circumstance, which clearly establishes that the disputed documents are forged. The petitioner filed a certified copy of the passport. The Arbitrator perused the said document and found that the petitioner visited India between 14.09.1990 and 28.09.1990 and that he was not in India during the period when the disputed letters and affidavit were said to have been signed by him at Guntur. On this finding, the Arbitrator held that the said documents have to be treated as fictitious documents and that the Society utterly failed to verify the genuineness of the said documents. The Tribunal committed a grievous error in treating the certified copy of the passport of the petitioner as “xerox copy”. The GPA in his evidence given as PW.1 stated that the passport marked as Ex.A2 is the certified copy. The Arbitrator in his award also termed Ex.A2 as the certified copy of the passport. It is therefore not known on what basis the Tribunal treated the certified copy of the passport as a xerox copy. Neither the Society nor the counsel for respondent No.4 suggested to PW.1 in his cross-examination that any of the pages of the passport were missing. The Tribunal has entertained needless suspicion about the possibility of leaving out certain pages in the passport while taking xerox copy and on that premise it assumed that all the pages of the passport would not have been produced before the Arbitrator. This approach of the Tribunal is perverse, to say the least. In fact, a copy of Ex.A2, passport filed in the writ petition contains the attestation of K.C. Banerjee, Attache (Cons), Embassy of India, Washington D.C. with the following endorsement: “Attested true copy of the original passport, in its entirety from page 1 – 36.” It is indeed baffling that the Tribunal, which is headed by a senior District Judge, turned a blind eye to this certificate issued by the responsible officer of the Indian Embassy at Washington D.C. No further evidence is required to show that Exs.B3 to B5, which are purported to have originated in Guntur, India are blatantly forged documents because it was conclusively proved from the