Harkishan
Dass & Ors Vs. State of Haryana & Ors [1995] INSC 639 (8 November 1995)
Punchhi,
M.M. Punchhi, M.M. Manohar Sujata V. (J)
CITATION:
1996 SCC (7) 32 JT 1995 (8) 335 1995 SCALE (6)349
ACT:
HEAD NOTE:
O R D
E R
The Punjab and Haryana High Court at Chandigarh dismissed the writ petition of the
appellants in limine, which has given rise to this appeal.
On the
bare outlines of the matter, it is clear that there is not much scope for
interference at our end. The appellants are heirs and legal representatives of Mathura
Parshad, deceased, cashier-cum-member of the Cooperative Society, respondent
no.3. On his demise, it was discovered that he had defalcated large sums of
money of the Society.
Since
a dispute arose between the Society and its deceased member, about the recovery
thereof, the heirs and legal representatives of the deceased, Mathura Parshad
were made to face proceedings. An arbitrator was appointed to go into the
matter in accordance with the provisions of Sections 55 and 56 of The Punjab
Co-operative Societies Act, 1961. An award was made by the Arbitrator against
the appellants, being heirs and legal representatives of Mathura Parshad,
deceased, not only for the principal amount found due, but also for the
liability to pay interest at the rate of 16 per cent per annum and costs at the
rate of 2 per cent on the sum awarded. On appeal before the Deputy Secretary of
the Department, at the instance of the appellants, the liability to pay the
principal sum was sustained but rest of the award i.e. pertaining to interest
and costs was struck off. The appellants' writ petition, as said before, was
dismissed in limine by the High Court, repelling the plea raised that the
dispute did not squarely fall within the purview of Section 55 and 56 of the Punjab
Co-operative Societies Act, 1961.
Though
the order of the High Court in sum and substance is in approval of the orders
of the departmental officers, one claim however, laid in the writ petition,
needs to be highlighted. That was contained in ground (j) in paragraph 11 of
the writ petition. It is reproduced hereafter:
"(J)
That in any case, the liability on the petitioners cannot exceed the interest
devolved upon the petitioners from late Mathura Parshad. Late mathura Parshad had no bank balance and no
property of his. All that he had was a share in the ancestral house in which
some of the petitioners established, then cannot exceed the share of mathura Parshad
in that house." This was a valid plea. All the same the dismissal of the
writ petition cannot have the effect of wiping out such plea which would remain
alive when the question of recovery would arise. This plea was personal to the
appellants. They cannot be held liable personally for the liability of late mathura Parshad except to the extent of
interest devolved upon them from mathura Prasad. If such plea is raised as defence in an appropriate forum, that
plea shall not be shut out merely on account of the dismissal of the writ
petition.
No bar
of res judicata would be valid to the thwart such defence as and when raised as
such matter was not, and could not be, directly and substantially in issue.
With this clarification, the appeal stands disposed of. No costs.
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