Allowed

Smt.Malti Devi v. U.P. Cooperative Tribunal U.P. Lucknow and Others

Allahabad HC11 Mar 2024WRIC/1003013/2006

Case brief

AI extract

What is this about?

The High Court set aside two orders regarding a housing loan dispute. It held that the lower authorities acted arbitrarily by deciding the issue of non-receipt based only on receipts and oral testimony, failing to verify bank statements which should have been produced to conclusively prove payment through banking channels. The matter is remitted for fresh adjudication.

What did the court decide?

Impugned orders of the Assistant Commissioner, Housing and the U.P. Cooperative Tribunal are set aside and the matter is remitted for fresh adjudication after verification of bank statements.

Smt.Malti Devi Vs U.P. Cooperative Tribunal U.P… — Banking and Recovery | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:21383

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Court No. - 6

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Case :- WRIT - C No. - 1003013 of 2006

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Petitioner :- Smt.Malti Devi

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Respondent :- U.P. Cooperative Tribunal U.P. Lucknow And Others

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Counsel for Petitioner :- Mohiuddin Khan,M.A.Khan Counsel for Respondent :- C.S.C.,Anuj Kudesia,Gaurav Mehrotra,M.Chandra,M.G.Mishra,Punit Chandra

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Hon'ble Alok Mathur,J.

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Heard Mohd. Arif Khan, learned Senior Counsel assisted by Sri Abhishek Mishra, learned counsel for petitioner as well as learned Standing Counsel for respondent Nos. 1 & 2 and Sri Anuj Kudesia and Sri Vikash Agarwal ,learned counsel for respondent Nos. 3 & 5.

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No one has appeared on behalf of respondent No. 4 though counter affidavit has been filed.

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The dispute raised in the present case by the petitioner is with regard to a housing loan having been obtained from Respondent Nos. 3 & 5 for an amount of Rs. 1,20,000/according to agreement entered between petitioner and respondent Nos. 3 & 5. Housing loan of Rs. 1,20,000/- was sanctioned which has to be disbursed through respondent No. 4 which is Anand Sahkari Avas Samiti Limited of which the petitioner is a member.

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It has been submitted that the said loan was sanctioned and was disbursed in three installments to the petitioner. The first installment of Rs. 27,900/- was disbursed on 13.02.1990, the second installment of Rs. 57,000/- was disbursed on 23.03.1990 and the last and final installment of Rs. 28,500/- was disbursed on 21.04.1990.

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When a recovery proceeding was commenced against the petitioner, she raised an objection that out of 1,20,000/sanctioned for the housing loan, only the first installment for an amount of Rs. 27,900/- was disbursed while the remaining installments were not paid to the petitioner consequently it was submitted that the said amount cannot be recovered. It was further stated that out of amount of Rs. 27,900/- disbursed to the petitioner, she has already remitted an amount of Rs. 40,546.10 back to respondent Nos. 3 & 5.

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The recovery proceedings initiated by the respondent was assailed by the petitioner under Section 70 of the Cooperative Societies Act before the Assistant Commissioner, Housing / Assistant. Registrar, Uttar Pradesh Avas Evam Vikas Parishad, Lucknow. The Assistant Commissioner, Housing decided the said dispute and passed his award on 6.02.2004 rejecting the claim made by the petitioner and held that the money was duly disbursed to the petitioner and she has also given the receipt in the regard.

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The petitioner being aggrieved by the order of the Assistant Commissioner, Housing dated 06.02.2004 preferred an appeal before the U.P. Cooperative Tribunal. The U.P. Cooperative Tribunal has also rejected the said appeal by means of order dated 23.05.2006 affirming the order passed by the Assistant Commissioner, Housing. While rejecting the appeal, the appellate authority has taken note of the fact that the loan was disbursed by respondent Nos. 3 & 5 directly to the petitioner and the said drafts were in fact received by the petitioner and consequently she cannot resile from the said receipt and accordingly dismissed the appeal.

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Learned counsel for petitioner while assailing both the aforesaid orders has submitted that only first installment was received by the petitioner and second and third installments were never received. He further submits that the society i.e. respondent No. 4 had issued a cheque of Rs. 45,000/- in favour of petitioner which was dishonored and the reason given was that account has since been closed. The said information was given to the petitioner by the bank on 05.12.2010.

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He has also submitted that there is no material on record which can demonstrate from the statement of accounts that the amount of loan was in fact disbursed and paid to the petitioner. He has submitted that only on papers the respondents have indicated disbursal of the said loan but there is no document or statement of any bank available which can demonstrate the said disbursement. The petitioner has in fact given a receipt on 01.08.1990 indicating that she had received all the three installments but in fact only the first installment had been received by her at the time she has signed the said receipt. The details of column Nos. II & III were not filled up and they were filled up subsequently, and has accordingly disputed the said receipts.

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He has further submitted that it has been a consistent stand of the petitioner before the Assistant Commissioner as well as appellate authority that the entire amount of loan has not been disbursed in favour of the petitioner and accordingly it is prayed

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that the impugned orders along with recovery proceedings be set aside.

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The case has been vehemently opposed by learned counsel for respondents.

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It has been submitted that the amount of three installments were duly paid by a bank draft by respondent Nos. 3 & 5 in favour of respondent Nos. 4. It was the onus of respondent No. 4 to have further disbursed the amount to the petitioner who was the borrower. It is stated that respondent no. 4 had in fact given the said amount to the petitioner and he has submitted the said receipts to respondent Nos. 3 & 5 which have been annexed along with counter affidavit.

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With regard to the said receipts, it has been stated that the same was fraudulently got signed by the petitioner but in fact the money was never disbursed. It is accordingly submitted that there is no dispute that the said amount was actually disbursed and the petitioner has falsely made the said claim.

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I have heard learned counsel for the parties and perused the record.

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The undisputed facts of the case are that the petitioner is a member of respondent No.4 society titled as as Anand Sahkari Avas Samiti Limited. The petitioner had sought a loan from U.P. Sahkari Avas Sangh Limited i.e. respondent Nos 3 and 5 for construction of a house for an amount of Rs.1,20,000/-. The said loan was duly sanctioned and first installment of Rs.27900/- was disbursed and the said amount was remitted to respondent No. 4-Society and subsequently respondent No. 4- society by means of a cheque had disbursed the said amount in favour of the petitioner. As regards the disbursement of first installment, there is no dispute.

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The dispute in the present case is with regard to second and third installments which the petitioner denies to have received. Second installment of Rs.57,000/- (total amount of Rs.60,000/after deducting Rs.3000/-) is said to have been disbursed by respondent Nos. 3 and 5 in favour of the society which in turn has stated that the same was tendered to the petitioner by cheque No.878579 on 23.3.1990 for an amount of Rs.57,000/and third installment was also disbursed to the petitioner for an amount of Rs. 28500/- by means of cheque No. 177406 on 21.4.1990. The petitioner denies receiving the cheque or the amount with regard to second and third installment allegedly given by respondent No.4 to the petitioner.

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The Assistant Commissioner, Housing by means of impugned order has merely relied upon the statement of the respondents and the receipt given by the petitioner to indicate that she had received the entire amount. It is on these facts that he was of the considered opinion that entire amount has been disbursed in favour of the petitioner. It seems that he never put the respondents under duty to demonstrate by adducing statement of account or himself verifying as to whether in fact the said amount has been tendered by respondent nos. 3 and 5 and also that respondent No.4 had disbursed the said amount in favour of the petitioner. Neither the respondent No.4 produced statement of accounts nor the Bank indicating that the said amount had been deducted from their respective account and credited to the account of the petitioner. Even the appellate authority merely on the basis of the facts where the respondents had consistently stated that all the three installments have been paid to the petitioner were relied but even the appellate authority did not proceed to verify the said facts.

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In a dispute pertaining to denial of payment of the amount which is supposed to have been tendered by the bank and was paid by normal banking channels the authorities should have asked the respective parties to adduce primary evidence i.e. statement of bank accounts etc. with regard to disbursal of the said amount. Payment and receipts are matter of facts which can be conclusively proved merely by adducing statement of bank accounts.

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Mere oral settlement facts cannot be a substitute for proving financial transaction. Where there is denial of receipt of money, and normal banking channels have been used for the transaction, then there should be insistence of production of relevant bank statement for the relevant period which can prove the payment receipt. The present matter having been decided on receipts and oral testimony when relevant bank statements could have been examined, the authorities below have acted arbitrarily and failed to examine the matter in its proper perspective rendering the impugned order liable for interference by this Court.

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Accordingly both the orders are set aside.

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The matter is remitted back to Assistant Housing Commissioner, to decide the matter afresh by verifying the factum of disbursal of second and third installments in favour of the petitioner by respondent No.s 3 and 5 as well as by respondent No.4.

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The matter shall be decided after directing the respondents

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to adduce cogent and relevant material which can verify the disputed transactions.

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Considering that substantial period has lapsed during pendency of he said case respondent No.2 is directed to decide the same expeditiously say within a period of three months from the date a certified copy of this order is placed before him after giving opportunity of hearing to all the parties concerned. He shall ensure presence of respondent No.4 and also the date of actual period of disbursal of the amount of loan except from respondent No.3 and 4 and disbursal of the same in favour of the petitioner.

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With aforesaid directions the writ petition is allowed .

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(Alok Mathur, J.)

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Order Date :- 11.3.2024

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Ravi/R.K.M.

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Digitally signed by :- RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, Lucknow Bench

Smt.Malti Devi v. U.P. Cooperative Tribunal U.P. Lucknow and Others

Case brief

What is this about?

What did the court decide?

Smt.Malti Devi v. U.P. Cooperative Tribunal U.P. Lucknow and Others

Case brief

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What did the court decide?

What the court decided

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