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2024 Supreme(All) 399
IN THE HIGH COURT OF ALLAHABAD
ALOK MATHUR, J.
Smt. Malti Devi - Petitioner
Versus
U.P. Cooperative Tribunal U.P. Lucknow and Others - Respondents
Writ - C No. 1003013 of 2006
Decided On : 11-03-2024
For the Petitioner: Mohiuddin Khan, M.A. Khan.
For the Respondent: C.S.C., Anuj Kudesia, Gaurav Mehrotra, M. Chandra, M.G. Mishra, Punit Chandra.
IMPORTANT POINT
Authorities should insist on the production of relevant bank statements to conclusively prove financial transactions, especially in cases involving denial of payment and normal banking channels.
Headnote:
Housing Loan Disbursement Dispute - Cooperative Societies Act - Section 70
Fact of the Case:
The petitioner obtained a housing loan from respondent Nos. 3 & 5, with the loan amount disbursed in three installments. The petitioner disputed the disbursement of the second and third installments, leading to a recovery proceeding initiated against her.
Finding of the Court:
The court found that the authorities failed to verify the disbursement of the disputed installments and relied solely on oral testimony and receipts, leading to an arbitrary decision. As a result, the court set aside the previous orders and remitted the matter for fresh consideration.
Issues: Disputed disbursement of housing loan installments, reliance on oral testimony and receipts, failure to verify financial transactions.
Ratio Decidendi: In cases involving denial of payment and normal banking channels, authorities should insist on the production of relevant bank statements to conclusively prove financial transactions. The reliance on oral testimony and receipts without verifying bank statements was deemed arbitrary.
Final Decision: The court allowed the writ petition, set aside the previous orders, and remitted the matter for fresh consideration with directions to verify the disputed transactions and decide expeditiously.
JUDGMENT :
1. 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.
2. No one has appeared on behalf of respondent No. 4 though counter affidavit has been filed.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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 sai
