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Judgment
Dharam Chand Chaudhary, J.—The challenge herein is to the order dated 7.4.2008, Annexure P-2 passed by the 2nd respondent in a petition filed u/s 94 of the Himachal Pradesh Co-operative Societies Act (hereinafter referred to as ''the Act'' for short), registered as case No. 2 of 2008 against award dated 9.1.1995, Annexure P-1 whereby the award has been upheld and the petitioner-Society held liable to pay a sum of Rs. 18,469/- to the 5th respondent. The legality and validity of the impugned order has been assailed on the grounds that the same is highly illegal, arbitrary and against the principles of natural justice. It has further been pointed out that the amount in question, i.e. Rs. 18,469/- stands paid to the 5th respondent and in lieu thereof he has issued the receipt, available on record. No amount is stated to be recoverable by the 5th respondent from the petitioner-Society. Such facts on record are stated to be not appreciated. The plea taken by respondent No. 5 that it is a pre-receipt issued by him without actually receiving the amount, according to the petitioner is false. The 5th respondent is stated to have taken undue advantage of the audit report for the year 1992-93 and on the strength thereof submits that the amount in question was never withdrawn from the accounts of the petitioner. The plea raised by the 5th respondent is stated to be without any substance. It is pointed out that the 5th respondent as per the receipt has received the amount in question from the petitioner and now he has raised a false plea that the same is a pre-receipt.
The stand of respondents No. 1 to 4 in reply to the writ petition reads as follows:-
That respondent No. 5 Sh. Om Parkash raised a dispute u/s 72 of the H.P. Co-operative Societies Act, 1968 for the recovery of Rs. 31,657.69 before the Deputy Registrar Co-operative Societies, Dharamshala in the year 1994 and the said dispute was adjudicated by Arbitrator on 9.1.1995 and petitioner society was held liable for payment of a sum of Rs. 31,657.69 and interest of Rs. 3132.20. The petitioner society filed an appeal against the order of Arbitrator after a long delay of ten years i.e. on 3.12.2004 before the Additional Registrar Cooperative Societies Dharamshala on the ground that the petitioner society had admitted an amount of Rs. 31657.69 payable to Sh. Om Parkash, Ex-salesman before the Arbitrator but out of the said amount an amount of Rs. 18468-75 had already been paid to Sh. Om Parkash vide receipt dated 24.7.1992 and the balance amount i.e. Rs. 17500/- has been paid to said Sh. Om Parkash through Recovery Tehsildar and now nothing is payable to Sh. Om Parkash respondent No. 5. Sh. Om Parkash denied this fact before the Additional Registrar that the petitioner society has paid an amount of Rs. 18468/- to him. Respondent No. 5 explained that the society had obtained a pre-receipt of Rs. 18460/- from him and the society had assured him that the said amount will be credited to his deposit account but the society had not credited this amount to his account. The Additional Registrar Co-operative Societies, Dharamshala afforded due opportunity of being heard to both the parties, scrutinized the audit report of the petitioner society for the relevant periods and also scrutinized the cash book of the petitioner society which revealed that on 24.7.1992 at page No. 147 of cash book of the petitioner society an amount of Rs. 11315.50 only is shown as cash in hand whereas on the same day an amount of Rs. 18468.75 stated to have been paid to Sh. Om Parkash respondent No. 5 vide receipt dated 24.7.1992 was not confirmed from the balance amount shown in the cash book on that day as the record of the petitioner society could not prove the payment of Rs. 18468.75. Accordingly, the Additional Registrar Co-operative Societies Dharamshala vide order dated 10.1.2006 dismissed the appeal and ordered the society to pay a sum of Rs. 18468-75P to respondent No. 5. The petitioner society dissatisfied with the order dated 10.1.2006 of the Additional Registrar Co-operative Societies Dharamshala filed a revision petition u/s 94(2)(b) of the Act ibid before the replying respondent on the grounds that Additional Registrar Co-operative Societies Dharamshala has erred in law and facts in as much as the receipt of Rs. 18468.75 as available in the records of the society and the presumption is that the said amount was received by respondent from the society. The replying respondent after having gone through the record of the case and hearing both the parties came to the conclusion that receipt dated 24.7.1992 which was being relied upon by the petitioner society seemed to be pre-receipt, because had the amount actually been paid to the respondent Sh. Om Parkash on 24.7.1992, same would have been reflected in the accounts of the society for the period 1992-93. Hence, in view of the above submissions the replying respondent has rightly upheld the order dated 10.1.2006 of the Additional Registrar Co-operative Societies Dharamshala. The present writ petition is without merit and substance hence deserves to be dismissed by this Hon''ble Court.
Respondent No. 5 in the separate reply filed to the writ petition, has submitted that the petitioner-Society had obtained a pre-receipt from him without paying the amount in question. It is for this reason and on going through the record right from Arbitrator upto Registrar Co-operative Societies, the respondent No. 2 recorded concurrent findings that the payment of Rs. 18,469/- has not been made to him.
Learned counsel representing the petitioner has strenuously contended that the receipt dated 24.7.1992, Annexure P-1(colly) leaves no manner of doubt qua the payment of the amount in question by the petitioner-Society to the 5th respondent. The findings to the contrary recorded by the 2nd respondent in the impugned order and for that matter by the Arbitrator in Annexure P-1, according to him are beyond the record, hence, perverse and not legally sustainable.
On the other hand, learned Additional Advocate General and also learned counsel representing the 5th respondent while repelling the contentions so raised on behalf of the petitioner had submitted that they actually have paid the amount in question to the 5th respondent, the petitioner-Society is taking undue advantage of the receipt. It is further pointed out that had the sum of Rs. 18,469/- been actually passed on to the 5th respondent, entries to this effect would have been there in the accounts books of the Society. However, no such entries are there in the accounts books of the petitioner-Society. In the audit report for the year 1992-93 also, there is no reference qua this payment.
Having gone through the record and also taking into consideration the rival contentions, the only irresistible conclusion would be that the 2nd respondent has not committed any illegality or irregularity while upholding the award, Annexure P-1 and arriving at a conclusion that the petitioner-Society is liable to pay a sum of Rs. 18,469/- to the 5th respondent for the reason that the best piece of evidence to prove the payment of the amount in question to the 5th respondent would have been the entries in this behalf in the accounts books of the petitioner-Society.
It is worthwhile to mention here that the petitioner is a Society and can reasonably be believed to be functioning in accordance with its bye-laws. It has its own accounts books. It can reasonably be believed that the entries in respect of the business being carried out by the Society are being made in its accounts books. In the event of payment of the amount in question to the 5th respondent, the same was required to be withdrawn by it from its accounts on 24.7.1992 when this amount is claimed to have been paid to the 5th respondent and the receipt obtained from him and only a sum of Rs. 11315.50 was in balance in its accounts. Nothing has been brought on record that this amount was lying in cash with the Society on that day.
Admittedly, the audit of the accounts of the petitioner-Society for the year 1992-93 was conducted by S/Shri Venimadhav, District Audit Officer, Dharamshala and Gorkhu Ram, Inspector (Audit) on 13.5.1994. There is no mention in the audit report also so far as the payment of Rs. 18,469/- to the 5th respondent is concerned. The 2nd respondent while upholding the award, Annexure P-1 and dismissing the petition u/s 94 of the Act vide impugned order Annexure P-2 has, therefore, not committed any illegality or irregularity and the impugned order is the result of proper appreciation of the record. This Court thus finds no merit in this petition and the same as such deserves dismissal. In view of the above observations, this petition fails and the same is accordingly dismissed. Pending application(s), if any, shall also stand disposed of. No order as to costs.