Delhi District Court
Ram Lal Shukla vs Delhi Nagrik Sehkari Bank Ltd on 24 August, 2023
IN THE COURT OF MS. NEHA GARG, CIVIL JUDGE-01, TIS
HAZARI COURTS, CENTRAL DISTRICT, DELHI
CNR No:-DLCT03-001842-2022
CS SCJ No.1019/2022
Shri Ram Lal Shukla
S/o Shri Ram Bodh Shukla,
R/o 475/1-A, Durga Marg,
Mandawali, Fazalpur, Delhi-92.
Presently residing at:-
158-A, Kamna Vaishali,
Ghaziabad, UP. .............. Plaintiff
Versus
1. Delhi Nagrik Sehkari Bank Ltd.,
720, Near Ghanta Ghar, Subzi Mandi,
Delhi-7, through its Hony. Secretary.
2. Anil Kumar Singh (Cashier),
C/o Delhi Nagrik Sehkari Bank Ltd.,
Branch:- 107/63-A, B-Block, Shahdara,
Delhi-51.
3. Shri Surendra Mishra,
C/o Ram Prakash Tiwari,
R/o A-262-63, Partap Vihar,
Near Mayur Vihar,
Phase-III, Chowk, Khoda Colony,
Ghaziabad, UP.
CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd
Page 1 of 33
4. Achhey Lal Pandey,
R/o Budha Market Marg,
Mandawali, Fazalpur, Delhi-92.
Office:- Dispatcher, Dispatch Section,
Hindustan Times, Kasturba Gandhi Marg,
Delhi.
5. Jangjeet Singh,
Employed with M.T.N.L. Kidwai Bhawan,
New Delhi,
Designation as Lineman,
R/o Indira Gali, Mandawali Fazalpur,
Delhi-92.
6. Branch Manager,
Delhi Nagrik Sehkari Bank Ltd.,
107/63-A, East Azad Nagar,
Krishna Nagar, Delhi-51.
7. The Manager,
Nav Bharat Times,
Times of India Group Publications,
15-A, Shed-4, Shahibabad,
Ghaziabad, UP. .........Defendants
Date of institution of suit : 17.01.1996
Date on which reserved for judgment : 07.08.2023
Date of pronouncement of Judgment : 24.08.2023
CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd
Page 2 of 33
SUIT FOR DECLARATION, PERMANENT AND MANDATORY
INJUNCTION AND RECOVERY.
JUDGMENT
1. The present suit has been filed by plaintiff for declaration, permanent & mandatory injunction and for recovery.
FACTUAL MATRIX OF THE CASE SET UP BY THE PLAINTIFF:
2. The brief facts of the case, as stated in the plaint are that the plaintiff is presently residing at House No. 158-A, Kamna, Vaishali, Ghaziabad, U.P. and he previously used to reside at H. No.475-1/A, Durga Marg, Mandawali, Fazalpur, Delhi. It is the case of plaintiff that plaintiff applied for getting membership of the defendant No.1 bank (herein after referred to as 'the bank') and the application of the plaintiff was accepted by the bank officials. It is submitted that after the acceptance of the plaintiff's application for joining the said membership of the bank, the plaintiff received a letter to deposit the membership charges of Rs. 2,100/- and accordingly the plaintiff deposited the said CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 3 of 33 amount and an account No.42024 has been allotted to him by the bank. It is submitted that the plaintiff became the member of the defendant Bank in the month of March, 1994 and since then he is the member of the said bank.
3. It is submitted by the plaintiff that he applied for grant of loan facility on the instigation of defendants No.2 and 3, however, on seeing the grounds as furnished by the plaintiff for grant of loan facility, the then Manager of the bank i.e., the Bank's Branch situated at 107/63-A, East Azad Nagar, Krishna Nagar, Delhi-110051 declined the grant/sanction of loan facility to the plaintiff saying that grounds for advancing loan facility not sufficient. It is submitted that thereafter on 12.04.1995, plaintiff along with his two friends namely Sh. Ram Manorath Shukla and Satya Narain Tiwari met with the branch manager of East Azad Nagar Branch of the bank and requested him that the plaintiff's membership of the bank may kindly be closed and the amount deposited by the plaintiff with the said bank at the time of obtaining membership of the bank may kindly be refunded to him. It is submitted that on this, the then branch manager asked the defendant No.2 to obtain signatures of the plaintiff on some papers without reducing in writing anything on the said papers and thereafter plaintiff met with the cashier of the said bank CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 4 of 33 namely Sh. Anil Kumar Singh i.e., the defendant No.2 who asked the plaintiff that he will obtain the signatures of the plaintiff at his house.
4. It is submitted that thereafter defendants No.2 and 3 visited the residence of plaintiff and advised him that the membership of the plaintiff from the bank can be cancelled but the amount paid by the plaintiff i.e., a sum of Rs. 2,100/- cannot be returned immediately to him, because it will take sufficient time. It is submitted that defendants No.1 and 2 advised the plaintiff that the said amount can be returned to him if he is ready to transfer his membership to one of their relatives i.e., the relatives of defendants No.2 and 3, who will refund Rs. 2,100/- to the plaintiff. It is further submitted that thereafter the above-named defendants again visited the house of the plaintiff after some time and asked the plaintiff that he may sign some papers lying with them and the plaintiff has to further visit at the bank's office where he has to sign more two or three papers and the rest of the work will be done by them at their own cost. It is submitted that that immediately on the next day, as per the advise given by defendants No.2 and 3, plaintiff signed 2-3 papers in the bank. It is submitted that that when plaintiff signed the blank papers at his residence, the said blank papers were in the shape of printed forms and at the time of signing those papers one Sh. Ram Manorath Shukla was CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 5 of 33 present there.
5. It is submitted by plaintiff that thereafter, on several occasions he visited the bank office and requested the then Branch Manager and Cashier i.e. the defendant No.2 to return the amount deposited by the plaintiff with the bank and also asked about closure of membership or transfer of the membership as mentioned earlier. It is submitted that on this the then branch manager of the said branch told the plaintiff that as soon as the work will be completed, it will be initiated by defendant No.2 and thereafter the plaintiff may come to the bank and can take back his deposited amount. It is submitted that despite several visits and requests made by plaintiff to defendant No.2, defendant No.2 neither informed about closure of membership nor refunded the amount deposited by the plaintiff.
6. It is the case of plaintiff that on 18.10.1995 it was revealed to him from defendant No.4 that a sum of Rs. 34,000/- loan has been granted in the name of the plaintiff whereupon defendants No.4 and 5, who are also members of the said bank, have stood as surety. It is submitted that it has also been revealed to the plaintiff that defendants No.2 and 3 had obtained a cheque for Rs. 34,000/- and embezzled the entire amount of CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 6 of 33 the loan i.e., the cheque amount by making forged signatures. It is submitted that that it is well within the knowledge of bank officials i.e., the defendants that at no stage plaintiff received any loan amount nor the said cheque has been ever handed over to the plaintiff for encashment. It is submitted that when plaintiff came to know about this fact, he immediately visited the bank along with Sh. Ram Manohar Shukla and Sh. Satya Narain Tewari and on enquiry it has been revealed to the plaintiff that by forging and fabricating the documents, a sum of Rs. 34,000/- has been withdrawn in the name of the plaintiff from the bank by the defendants No.2 and 3 and when the plaintiff asked about this fact to the defendant No.2, he clearly stated that the plaintiff has not to worry and that the amount has been withdrawn in the name of plaintiff but the defendants No.2 and 3 will deposit the same. It is submitted that immediately after this incident the defendant No. 3 fled away from Delhi, who is originally resident of District Sultanpur, U.P.
7. It is submitted that thereafter plaintiff received the letter dated 30.10.1995 issued by the bank for recovery of the installment against the loan, which has been obtained by the defendants No.2 and 3 in the name of plaintiff by forging, fabricating and manipulating the documents, thereafter again the plaintiff received another letter dated 30.11.1995 CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 7 of 33 which has been issued from the bank for the recovery of the loan amount which has been addressed in the name of plaintiff at his office address wherein the defendant bank has requested the employer of the plaintiff to recover the loan amount/installment from the salary of the plaintiff. It is submitted that it is well within the knowledge of the bank officials that no amount has ever been withdrawn by the plaintiff nor he is liable to make the payment of single penny to the bank against the alleged loan amount. It is further submitted that the plaintiff has also filed complaint to SHO PS Krishna Nagar regarding the said offence of fraud and embezzlement committed by the defendants No.2 and 3 in collusion with each other. It is submitted that the complaint filed by the plaintiff dated 19.10.1995 was duly received by the police officials of PS Krishan Nagar, Delhi, therefore plaintiff also made another representation to the bank that the alleged notice for the recovery of loan amount is illegal, unjust, unwarranted and plaintiff is not bound to make any payment against the said loan amount as mentioned in the notices issued by the defendant bank. It is submitted that apart from this the plaintiff also sent complaint to Commissioner of Police, DCP (Crime), DPC East Delhi, SHO Krishna Nagar, Lt. Governor, Delhi, Chief Minister, Delhi State, Home Minister, Govt of India and the present Branch Manager of East Azad Nagar Branch of Delhi Nagrik Sehkari Bank. It is submitted that thereafter CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 8 of 33 plaintiff preferred a criminal complaint petition before the Court of Ld. ACMM, Shahdara, Delhi u/s 40/408/420/468/471/511/34 IPC, wherein notice u/S 156(3) Cr.P.C. was issued for investigation by the local police and the matter has been investigated by the local police on the aforesaid notice issued u/s 156(3)Cr.P.C. and the report made by the police officials make it crystal clear that the defendants have committed offence of embezzlement, fraud and fabricated the documents by forging them and use the same as genuine one knowingly it well that the documents are forged and fabricated and are not genuine. It is the case of plaintiff that the above stated forged documents have not been filled by the plaintiff nor the plaintiff has ever signed the alleged borrowers consent letter. It is submitted that the plaintiff never took any loan from the defendant bank nor any amount has ever been paid on account of loan to the plaintiff. Hence the present suit has been filed by the plaintiff with the following prayers:-
(a) Decree of declaration thereby declaring that the alleged agreement in between the plaintiff and defendant bank had come to an end when the plaintiff requested and the defendant No.6 exceeded to the same and the plaintiff was not member of the said defendant bank, thereafter as such could not have been granted loan on the said membership and all the agreements between the parties including the borrowers consent not have CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 9 of 33 become non-existent and in operative, as such the defendants cannot take any action on the basis of the said agreement.
(b) Decree of declaration thereby declaring that the recovery notices dated 30.10.1995 and 30.11.1995 are illegal, unlawful, in-operative as the loan could not have been granted to the plaintiff and the alleged loan amount is not recoverable from the plaintiff, rather plaintiff is entitled to recover the amount i.e., a sum of Rs. 2,100/-which he has deposited with the defendant bank at the time of inception of membership together with interest thereupon @ 24% per annum from the date of depositing till the date of realization of the said amount and the defendant No.7 is not bound to abide by the borrowers consent note/agreement as such is not under obligation to pay the amount of demand notice to defendants No.1 to 6.
(c) Decree of mandatory injunction, thereby directing the defendants No.1 and 6 not to raise any demand on the basis of the membership which had already come to an end prior to sanctioning of the alleged loan, in future upon the defendant No.7 or the plaintiff.
(d) Decree of recovery for a sum of Rs. 2,100/- along with interest thereupon @ 24% per annum w.e.f. the date of depositing of the said amount with the defendant bank till its realization, in favour of the plaintiff and against the defendants.
CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 10 of 33
(e) Decree of permanent injunction thereby restraining the defendants from raising any demand for recovery of the alleged loan amount of Rs. 34,032/- and/or recovery of an amount of Rs. 4,607/- as shown in notice dated 30.10.1995 and 30.11.1995 respectively. Further particularly defendant No.7 be restrained from giving effect to the said notice.
8. Summons of the suit were issued to the defendants upon which only defendants No.1, 2 & 6 and defendants No.4 and 5 had put appearance. However, written statement was filed only on behalf of defendants No.1 through defendants No.2 and 6 and no written statement was filed by defendants No.4 and 5. Record reveals that defendants No.3, 4 and 5 were proceeded ex-parte in March 1999.
FACTUAL MATRIX OF THE CASE SET UP BY THE DEFENDANT BANK: -
9. In the written statement filed on behalf of defendants No.1 through defendants No.2 and 6, the averments made in the plaint were denied and it is submitted on behalf of defendants that plaintiff is a member of the bank which is a cooperative bank registered under the Bombay Cooperative Societies Act, 1925 as applicable to Delhi and is governed under the provisions of Delhi Cooperative Societies Act 1972 CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 11 of 33 (hereinafter referred to as 'the DCS Act'). It is submitted that the DCS Act is a special act and deals with cooperative societies in Delhi and if there is any dispute between the members of the bank or its employees a separate machinery has been provided under the Act u/s 60 of the DCS Act and jurisdiction of Civil or Revenue Courts has been ousted; hence the present suit is not maintainable and liable to be dismissed. It is further submitted that as per Section 90, a notice has been prescribed before filing the suit against the Cooperative Societies in any Court and no such notice as required u/S 90 of the DCS Act 1972 has been served nor there is any such statement of service of any such notice in the plaint hence the suit is liable to be dismissed. In other words, it is the case of defendant No.1 that this Court has no jurisdiction to entertain or try this suit as the matter relates to dispute required to be referable u/S 60 to the Registrar and jurisdiction of this Court in such cases is specifically barred u/s 93 of the Delhi Cooperative Societies Act.
10. In reply on merits it is submitted by defendant No.1 that as per records of the bank, plaintiff has given his residential address as House No. 475/1-A, Durgamarg, Mandawali, Fazalpur, Delhi-92 and thereafter no intimation for change of address has been received in the bank. It is further submitted that the plaintiff applied for a loan of Rs. 34,000/-
CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 12 of 33 which was sanctioned to the plaintiff vide resolution dated 04.05.1995 and after that the amount was transferred to the saving account of plaintiff. It is submitted that the plaintiff has withdrawn the said amount vide withdrawal slip No. 176273 dated 13.05.1995 and defendants No.4 and 5 who were also the members of the bank stood surety for the said loan. It is submitted that the General Power of Attorney papers in respect of property of surety Sh. Parvesh Kumar Dikshit were deposited by him with the bank against the loan of Rs. 34,000/- advanced to plaintiff and that at the time of taking of loan the plaintiff also deposited Rs. 800/- with the bank on 13.05.1995. It is the case of defendant No.1 and 2 that defendant No.2 never told the plaintiff that Rs. 2,100/- shall be returned to him or that he will intimate the plaintiff for payment of Rs. 2,100/-. It is submitted that the question of refund of any amount of Rs. 2,100/- also does not arise because the plaintiff has taken a loan of Rs. 34,000/- from the bank and has not repaid any amount.
11. It is submitted by defendant No.1 that the plaintiff never visited the bank office for closing his membership and the question of any request to the defendant for refund of Rs. 2,100/- does not arise. It is submitted that the documents executed by the plaintiff at the time of taking the loan are genuine and signed by the plaintiff on the basis of which the loan has CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 13 of 33 been advanced to the plaintiff which he has withdrawn from the account by withdrawal slip and he is liable to repay the same. It is submitted that the plaintiff is not entitled to any amount of Rs. 2,100/- or any interest on the said amount as the amount deposited by the plaintiff with the bank before taking of the loan has been deposited as share money and no share money can be refunded till the member resigns and the resignation is accepted by the managing committee. It is submitted that even if plaintiff submits any resignation to the bank, the same is not acceptable till he clears his loan. It is submitted that the plaintiff has sought a relief against the loan papers executed by the plaintiff in favour of the bank for loan of Rs. 34000/- and he has withdrawn the amount of Rs. 34,000/- as loan on those papers, hence the suit has not been properly valued and no proper stamp has been affixed. In light of aforesaid averments, it is prayed on behalf of the defendants No.1, 2 and 6 that the present suit deserves dismissal with cost.
12. Replication was filed on behalf of the plaintiff to the written statement filed on behalf of defendants, wherein all the averments made in the plaint were reaffirmed and contents of written statement of defendant were denied.
CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 14 of 33
13. On completion of pleadings, following issues were framed in the present matter 17.04.2000:-
1.Whether the plaintiff is entitled to the decree of declaration and injunction as prayed in the plaint? OPP
2. Relief Vide Order dated 14.11.2022, the following additional issue was framed by this Court:-
"Whether this Court does not have the jurisdiction to try the present suit in view of the provisions of Delhi Cooperative Societies Act, 1972? OPD-1"
EVIDENCE:-
14. Thereafter the matter was listed for recording of plaintiff's evidence. In order to prove his case, the plaintiff has been examined as PW-1. PW-1 was duly cross examined.
Sh. M.S. Mishra (Handwriting Expert) has been examined as PW-
2. PW-2 proved on record the report Ex.PW2/A, photographs Ex.PW2/1 to Ex.PW2/3. PW-2 was duly cross examined.
Thereafter PE was closed and the matter was listed for defendant's evidence.
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15. In defendant's evidence, defendant No.2 has been examined as DW-1. DW-1 tendered his affidavit of evidence Ex.DW1/A. DW-1 was duly cross examined. Sh. Ashwani Kumar Jain has been examined as DW-2. DW-2 tendered his affidavit of evidence Ex.DW2/A. DW-2 was duly cross examined.
Thereafter the matter was fixed for final arguments.
16. Final Arguments have been heard and the record is carefully perused by this court.
After giving my thoughtful consideration to the pleadings of the parties, the entire evidence available on record and after hearing the submissions of both the sides, my issue wise finding in the present matter is as follows:
ISSUE WISE FINDINGS:-
Issue No.1:- Whether the plaintiff is entitled to the decree of declaration and injunction as prayed in the plaint? OPP
17. The burden to prove the present issue is on the plaintiff. Plaintiff/PW-1 has deposed in his examination in chief that he applied for the membership of the bank in March 1994 and he deposited a sum of Rs.2,100/- as membership fee. Plaintiff has deposed that he had applied CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 16 of 33 for a loan with the bank for repairing his house but his said loan application was turned down. Plaintiff has deposed that he along with friends Ram Manohar Shukla and Satnarain Tiwari went to the bank on 12.05.1995 to close his membership in the bank and for refund of the membership fee of Rs.2,100/-. PW-1 has further deposed that the Manager of the bank asked the cashier i.e., the defendant No.2, who resides in the same colony as the plaintiff, to get plaintiff's signatures on some forms for cancellation of membership of the plaintiff. Plaintiff has deposed that defendant No.2 had obtained the signatures of the plaintiff on some blank papers. Plaintiff has deposed that 'after that' defendants No.2 and 3 visited his residence and asked him to transfer the membership of the bank in the name of one of the relatives of defendant No.3 who will pay him a sum of Rs.2,100/-. Plaintiff has deposed that thereafter defendants No.2 and 3 have got his signatures on some blank papers and they informed the plaintiff that they will give an amount of Rs. 2,100/- to the plaintiff. Plaintiff has deposed that after that he kept on asking for the amount of Rs. 2,100/- but the defendants never returned the same to the plaintiff. Plaintiff has deposed it was on 18.10.1995, defendant No.4, who resides in the same colony as the plaintiff, informed the plaintiff that defendants No.2 and 3 have got the loan sanctioned in the name of the plaintiff and they have embezzled the money from the CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 17 of 33 bank by forging and fabricating the signatures of the plaintiff. Plaintiff has deposed that the signatures appended on the back of the vouchers for withdrawing money were not his and the same have been forged.
18. Per contra, DW-1 and DW-2, who are the clerk cum cashier and supervisor of the bank respectively, have deposed that plaintiff had applied for a loan of Rs. 35,000/- with the bank vide his application dated 01.05.1995 (Ex.DW1/2) and after the completion of the formalities, a loan of Rs. 34,000/- was sanctioned to the plaintiff. The aforesaid witnesses have deposed that defendants No.4 & 5 stood as surety for the plaintiff. DW-1 & DW-2 have deposed that at the time of applying for loan, plaintiff has deposited with the bank the pay certificate issued by his employer Benett Coleman & Company Ltd (Ex.DW1/3) and the original pay slips of the sureties (Ex.DW1/4 & Ex.DW1/6). DW-1 & DW-2 have deposed that after the amount of Rs. 34,000/- was credited in the account of plaintiff, he withdrew the same on 13.05.1995 vide withdrawal slip No. 176273 (Ex.DW1/18). DW-1 & DW-2 have further deposed that plaintiff at the time of availing the aforesaid loan has executed a bond dated 13.05.1995 (Ex.DW1/7) which was also signed by the sureties; borrower's consent note (Ex.DW1/8); letter of lien and set off (Ex.DW1/9); letter of undertaking (Ex.DW1/10) and promissory note CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 18 of 33 (Ex.DW1/11). DW-1 & DW-2 have further deposed that the sureties of plaintiff had also executed consent notes and bonds. Both the witnesses have deposed that plaintiff also acknowledged the receipt of Rs. 34,000/- on 13.05.1995 by putting his signatures in the payment register maintained by the bank (Ex.DW1/21).
19. DW-1 & DW-2 have deposed that after taking the loan from the defendant bank, the plaintiff failed to repay the same as per the agreed schedule and hence, the bank had to approach the sureties for recovery of the amount. DW-1 & DW-2 have further deposed that the sureties of the plaintiff had written letters Ex.DW1/22 & Ex.DW1/23 wherein the sureties have requested the bank to recover the amount from the salary of plaintiff. Both the aforesaid witnesses have deposed that the bank has already approached the Registrar, Cooperative Societies, Delhi u/S 60 of the DCS Act for recovery of the loan amount vide petition Ex.DW1/24. DW-1 & DW-2 have deposed that the Ld. Arbitrator has also passed an Award (Ex.DW1/26) against the plaintiff and his sureties, which Award was challenged by the plaintiff before the Tribunal and the matter was remanded back to the Arbitrator by the Tribunal. It is deposed by the defense witnesses that plaintiff has leveled false and frivolous allegations against the bank.
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20. In order to succeed on the present issue, the plaintiff must prove that defendants No.2 and 3 have forged, fabricated and manipulated the documents as relied upon by the bank for withdrawing a sum of Rs. 34,000/- from the bank. As stated earlier, plaintiff has deposed in his examination in chief that on 12.05.1995 he along with friends Ram Manohar Shukla and Satnarain Tiwari went to the bank to close his membership in the bank and then defendant No.2 had obtained the signatures of the plaintiff on some blank papers. Plaintiff has deposed that 'after that' at his residence also, defendants No.2 and 3 obtained in his signatures on some blank papers on the assurance of transferring his membership and for refunding the amount of Rs. 2,100/-. In other words, plaintiff has deposed in his examination in chief that twice his signatures were obtained on blank papers. However, a perusal of the plaint reveals a different story.
21. A combined reading of paras No.4 & 5 of the plaint reveals that plaintiff has averred therein that when he went to bank on 12.04.1995, defendant No.2 told him that he will obtain plaintiff's signatures at plaintiff's residence and thereafter, defendants No.2 and 3 visited plaintiff's residence. It is averred in the plaint that when defendants No. 2 CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 20 of 33 & 3 visited plaintiff's residence, plaintiff was informed that his membership can be transferred to one of the relatives of defendants No.2 & 3 who will then refund the amount of Rs. 2,100/- to plaintiff. It is averred that thereafter the defendants No.2 & 3 again visited the house of plaintiff and asked him to sign on some papers lying with them. It is averred that immediately on the next day he visited the bank and he signed 2-3 papers in the bank. In para 5 of the plaint it is averred that when plaintiff signed the blank papers at his residence, the same were in the shape of printed forms and at the time of signing the same, Sh. Ram Manohar Shukla was present. Firstly, plaintiff has failed to mention as to when the aforesaid blank printed forms were signed by him as it is the case of plaintiff that defendants No.2 & 3 had visited the plaintiff twice at his residence. Plaintiff has failed to specify whether he had signed those printed forms during the first visit or the second visit of defendants No.2 & 3. Secondly, it is clear that in the plaint, plaintiff has alleged that he signed papers in the bank 2-3 days after defendants No.2 & 3 had already visited him at his residence which is a material contradiction from his testimony made in examination in chief wherein plaintiff has deposed that he had signed blank papers in the bank on 12.04.1995 when he had visited the bank along with his friend Ram Manohar Shukla and Satnarain Tiwari. Also, the testimony of plaintiff that defendants No.2 & CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 21 of 33 3 got plaintiff's signatures on blank papers at his residence is contradictory to the averments made in para 5 of the plaint where plaintiff has mentioned that he had signed certain printed forms. The aforesaid material contradictions raise doubt on the case set up by the plaintiff. Also, plaintiff has failed to examined his friend Ram Manohar Shukla who allegedly went to the bank with plaintiff on 12.04.1995 and who was also present when plaintiff had signed the printed forms at his residence. There is nothing on record regard non-availability of Ram Manohar Shukla. The non-examination of Ram Manohar Shukla by plaintiff again raises serious doubt on the case set up by the plaintiff.
22. Plaintiff in support of his case has examined Sh. M.S. Mishra, who has claimed to be a handwriting expert, as PW-2. Plaintiff has deposed that defendants No.2 & 3 have forged and fabricated his signatures to embezzle the sum of Rs. 34000/- from the bank. However, plaintiff has failed to state the document on which defendants No.2 and 3 have forged his signatures. The bank has relied on various documents executed by the plaintiff at the time of the impugned loan transaction. A bare perusal of the plaint reveals that these documents find no mention in the plaint. Order VI Rule 4 of CPC provides that in all cases in which a party pleading relies on any misrepresentation, fraud, breach of trust, willful CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 22 of 33 default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleadings. In the present case, in the absence of the any specific averment as to where the defendants No.2 and 3 have forged plaintiff's signatures, the mere bald averment of the plaintiff that his signatures have been forged will not suffice. None the less, I shall also briefly deal with the probative value of the testimony of PW-2.
23. PW-2 has deposed that he has done a diploma course in documentation from Amity University, Delhi and Indian Institute of Criminology, Nagpur. However, no qualification certificate of PW-2 has been placed on Court record which in itself raises doubt on the expertise of PW-2. Also, PW-2 has examined the signatures of plaintiff as affixed on the plaint with the signatures affixed on document Ex.DW1/21 and has opined in his report (Ex.PW2/A) that the signatures on document Ex.DW1/21 are not of the same person who has signed the plaint. Thus, it is to be seen that the opinion expressed by PW-2 only challenges the genuineness of document Ex.DW1/21 and not the remaining documents relied upon by defendant. Along with the written statement, defendant has filed various documents that were executed by the plaintiff while CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 23 of 33 availing the impugned loan. However, in his replication, plaintiff has not specifically denied the execution of these documents relied upon by the bank. In para 8 of its written statement, defendant bank has specifically averred that the plaintiff has withdrawn the loan amount of Rs. 34000/- vide withdrawal slip No.176273 dated 13.05.1995 (Ex.DW1/18). Per contra, plaintiff in his replication has vaguely and evasively denied the aforesaid averment made in para 8 of the written statement without specifically stating that the withdrawal slip Ex.DW1/18 does not bear his signatures. Therefore, as per provisions of Order VIII Rule 3 & 5 of CPC, the plaintiff is deemed to have admitted the execution of the various documents relied upon by the bank. Thus, the mere testimony of PW-2 will not enable the plaintiff to discharge the burden cast on him to prove that the various documents relied upon by the bank are forged and fabricated.
24. Plaintiff has failed to explain how the defendant No.1 obtained his pay slip dated 08.02.1995 (Ex.DW1/3) as it is not the case of plaintiff that he has ever handed his pay slip to the bank. It is the case of plaintiff that he had earlier applied for a loan with the bank for repairing his house but the same was rejected. Plaintiff has deposed in his cross examination that the said loan was applied in the month of October 1994 and that CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 24 of 33 along with the loan application form for the said loan he had annexed his salary slip. For a loan applied in the month of October 1994, plaintiff could not have deposited the salary slip for the month of February 1995. Therefore, plaintiff has failed to explain how his salary slip for the month of February 1995 came in the possession of the bank and the same rebuts the case set up by the plaintiff. Thus, it is to be seen that from the various complaints filed by the plaintiff with the various authorities, which complaints are not the proof that defendants No.2 and 3 have forged, fabricated and manipulated the documents as relied upon by the bank for withdrawing a sum of Rs. 34,000/, there is no material evidence on record to substantiate the averments of the plaintiff except his own self- serving statements made in his examination in chief.
25. Section 103 of the Indian Evidence Act, 1872 provides that the burden of proof of a particular fact lies on the person who wishes the Court to believe in its existence. Plaintiff had the opportunity to prove the present issue in his favour by way of leading evidence himself or through cross examination of defense witnesses. DW-2 has specifically deposed in his cross examination that he was posted at the Krishna Nagar branch of the bank from 1992 to 1995. DW-2 has deposed that he was posted as supervisor in the Krishna Nagar Branch when plaintiff had come to apply CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 25 of 33 for the loan. DW-2 has deposed in his cross examination that bond Ex.DW1/7 was signed by the plaintiff in the presence of the two sureties. DW-2 has deposed that at the time of signing of the said bond he along with Sh. S.K. Jain, the then accountant of the branch, were present. There is no reason for this Court to disbelieve the testimony of DW-2. Plaintiff has been unable to extract anything from the cross-examinations of defense witnesses in support of his case.
26. Learned Counsel for plaintiff has argued that both the defense witnesses have not been authorised by the bank to depose on its behalf and accordingly, the testimony of these witnesses cannot be considered. In the cross-examination of both the defense witnesses it is elicited that the witnesses have no power of attorney or written authorisation from the bank to give evidence in the Court. In order to decide the aforesaid objection raised by the learned counsel for plaintiff, I have the profit of referring to the decision of the Hon'ble Bombay high Court in Central Bank of India vs. Tarseema Compress Wood Manufacturing Company and Ors. AIR 1997 Bom 225 wherein while dealing with a objection that the PW-1, who was the Manager in the concerned Branch of the plaintiff- bank, has no right to give evidence on behalf of the bank without power of attorney or written authorisation, the Hon'ble High Court held as CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 26 of 33 under:-
"In my view, this argument, has no merit. Anybody can come and give evidence in Court provided that he is acquainted with the facts of that case. No power of attorney or authorisation is necessary for any witness to give evidence in Court. It may be for filing the plaint, or signing the plaint or signing a written statement an authorisation may be necessary, but to give evidence on oath, anybody, who is acquainted with the facts can give evidence."
27. Thus, it is to be seen that any person who is acquainted with the facts of the case can depose. Therefore, the objection of the learned counsel for plaintiff that defense evidence cannot be taken into consideration cannot be sustained. Even otherwise, plaintiff has himself admitted that DW-1 is the cashier/employee of the bank and accordingly, it does not lie in the mouth of the plaintiff to now argue that DW-1 is not competent to depose on behalf of the bank.
28. It is clear from the foregoing discussion that the plaintiff has failed to discharge the burden to prove the present issue on the balance of probabilities. Accordingly, the present issue is decided against the plaintiff and in favour of defendants.
CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 27 of 33 Issue:- Whether this Court does not have the jurisdiction to try the present suit in view of the provisions of Delhi Cooperative Societies Act, 1972? OPD-1
29. The burden to prove the present issue is on the bank. Learned Counsel for defendant No.1 has argued that as per Section 70 of the DCS Act, 2003 if any dispute touching the constitution, management or the business of a co-operative society has arisen between the member or the past member of the society and its managing committee, then such dispute shall be referred to the Registrar for decision and no Court shall have the jurisdiction to entertain any suit or other proceedings in respect of such dispute. Learned Counsel for defendant No.1 has argued that the jurisdiction of the Civil Courts has been specifically barred by Section 132 of the DCS Act, 2003. Learned Counsel for defendant No.1 has further argued that the plaintiff has not complied with the statutory provisions of Section 129 of the DCS Act, 2003 of serving notice of 90 days to the Registrar and accordingly, the present suit deserves dismissal.
30. In order to appreciate the arguments advanced by Learned Counsel for the defendant No.1, it is imperative to reproduce the relevant provisions of DCS Act, 2003 which are as under:-
CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 28 of 33 "70. Disputes which may be referred for arbitration.-(1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a co-operative society other than a dispute regarding disciplinary action taken by the cooperative society or its committee against a paid employee of the co-operative society arises -
(a) among members, past members and persons claiming through members, past members and deceased members; or
(b) between a member, past member or person claiming through a member, past member or deceased member and the co-operative society, its committee or any officer, agent or employee of the co-operative society or liquidator, past or present; or
(c) between the co-operative society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent, or deceased employee of the co-operative society; or
(d) between the co-operative society and any other co-operative society, between a co-operative society and liquidator of another co-operative society or CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 29 of 33 between the liquidator of one co-operative society and the liquidator of another co-operative society;
such disputes shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such disputes.
(2) If any question arises whether a dispute referred to the Registrar under this section is or is not a dispute touching the constitution, management or the business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court.
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132. Bar of jurisdiction of civil or revenue courts. - (1) Save as provided in this Act, no civil or revenue court shall have any jurisdiction in respect of-
(a) the registration of a co-operative society or its bye-laws or of an amendment of a bye-law;
(b) the removal of the committee;
(c) any dispute required under section 70 to be referred to the Registrar; and
(d) any matter concerning the winding up and the dissolution of a co-operative society.
(2) While a co-operative society is being wound up, no suit or other legal proceedings relating to the CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 30 of 33 business of such co-operative society shall be proceeded with or instituted against the liquidator as such or against the cooperative society or any member thereof, except by leave of the Registrar and subject to such terms as he may impose.
(3) Save as provided in this Act, no order, decision or award made under this Act, shall be questioned in any court on any ground whatsoever."
31. It is clear from the bare perusal of the aforesaid provisions that Section 132 of the DCS Act, 2003 bars the jurisdiction of the Civil Court to adjudicate on any dispute which is required to be referred under Section 70 of the DCS Act, 2003. Section 70 of the DCS Act, 2003 again puts bar upon the jurisdiction of the Cour to entertain any suit or proceedings in respect of any dispute touching the constitution, management or the business of a co-operative society which has arisen amongst the member, past member or the society etc. In the instant case, admittedly plaintiff is the member of the bank since March 1994. There is no denial that the bank is a Co-operative Society registered under the Delhi Co-operative Societies Act, 1972 and is now governed by the new Act of 2003.
CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 31 of 33
32. The question that arises for consideration is whether the dispute raised by the plaintiff in the present suit touches the constitution, management or the business of defendant No.1 society or not. It is the case of plaintiff that he had applied for loan with the defendant No.1 bank but he was not granted any loan and that in order to get his membership cancelled he signed some blank papers but later on he got to know that a loan has been granted in his name and the amount has been embezzled. Plaintiff has sought declaration regarding his membership, the impugned loan, the recovery notice issued by the bank and injunction from recovery. In other words, plaintiff is challenging the impugned loan granted to him by the bank and he is also seeking declaration of cessation of his membership. The defendant No.1 is engaged in banking business in which granting of loans is an essential component. This being so, the dispute raised by the plaintiff in the present suit touches upon the essential business of the bank of granting loan. The conditions of Section 70 of the DCS Act, 2003 of plaintiff being a member of the Co-operative Society and the dispute as raised touching upon the business of the defendant bank are clearly satisfied in the present case and the same brings the present suit within the exclusive domain of Section 70 of the DCS Act, 2003. Consequently, this Court does not have the jurisdiction to try the present suit in view of Section 132 of the DCS Act, 2003.
CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 32 of 33
33. In light of the foregoing discussion, the present issue is decided in favour of defendant No.1 and against the plaintiff.
RELIEF:-
34. In view of the foregoing discussion and the findings on the aforesaid issues, the present suit filed by the plaintiff is dismissed.
Costs of the suit are awarded in favour of defendant No.1 to be paid by the plaintiff.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open Court (NEHA GARG)
On 24.08.2023. Civil Judge-01/Central,
Tis Hazari Courts/Delhi
CS SCJ No. 1019/2022 Sh. Ram Lal Shukla vs. Delhi Nagrik Sehkari Bank Ltd Page 33 of 33