Bhupinder Singh vs Primary Land Mortgage Bank, Hoshiarpur

S.D. Bajaj, J.

Plaintiffappellant Bhupinder Singh owed Rs. 9233.51 to defendantrespondent No. 1 for which his land was put to auction on December 12, 1979. Plaintiffappellant deposited the outstanding amount and the other charges with defendantrespondent No. 1 on December 29, 1979. The request made to the Board of Directors of the Punjab Cooperative Land Mortgage Bank, Hoshiarpur, Assistant Registrar, Cooperative Societies, Hoshiarpur and the Registrar, Cooperative Societies at Chandigarh for release of the land from attachment and sale proceedings, for recovery of outstanding loan after deposit, were rejected by the authorities on flimsy technical grounds. Registrar, Cooperative Societies, Chandigarh, made the final order of rejection on August 10, 1982.

Plaintiffappellant filed civil suit No. 218 on November 18, 1982 for a declaration that the sale was illegal and for consequential relief of recovery of possession of the land sold. It was dismissed by the learned trial Court on November 7, 1984. Civil appeal No. 95 filed on December 14, 1984 against the decision of the learned trial Court was also dismissed by the learned Additional District Judge, Hoshiarpur, on January 22, 1986 on point of jurisdiction. Hence Regular Second Appeal No. 1117 of 1986 in this Court.

I have heard Shri Vinod Sharma, Advocate, learned counsel for the plaintiffappellant and have carefully gone through the records of the learned Courts below. None, however, appeared for the respondents.

Both the learned Courts below obviously erred in nonsuiting the plaintiffappellant on point of jurisdiction. Second 17 of the Punjab Cooperative Land Mortgage Banks Act, 1957 reads :

"17. (1) When a mortgaged property has been sold under this chapter, the mortgagor or any person having a right or interest therein affected by the sale, may, at any time within thirty days from the date of sale, apply to the Board to have the sale set aside on his depositing at the office of the State Bank

(a) for payment to the said bank the amount specified in the proclamation of sale together with subsequent interest and the costs, if any, incurred by the Bank in brining the property to sale; and

(b) for payment to the purchaser, a sum equal to two per cent of the purchase money.

(2) If such deposit is made, the Board shall make an order setting aside the sale.

(3) Where no application is made under subsection (1) or where such application is made and disallowed, the Board shall apply to the Registrar to make an order confirming the sale and on such officer confirming the sale, it shall become absolute."

(4) The deposit envisaged in subsection (1) of section 17 having been made before the expiry of 30 days from the date of sale, the Board was obliged to make and order setting aside the sale as contemplated in subsection (2) of this section.

For enforcing the statutory duty on the Board as held in Om Parkash v. Dodewala Cooperative Agricultural Service Society, 1984 RRR 624 (P&H) : 1982 Punjab Law Reporte 697, civil Court had the jurisdiction to entertain the suit and adjudicate upon the subject matter of controversy. The relevant observations read :

"Once it is held that the certificate was issued against the plaintiff under section 67A of the Act, without following the procedure laid down in subsection (2) or in violation of the principles of natural justice because the issue of certificate created liability in the sum of Rs. 9,615/ which affected civil rights of the plaintiff, it could not be enforced against him and he had a good cause to file a civil suit to seek protection of his rights. If notice had been served on him and certificate had been issued, then certainly the suit would not have been competent and he had to resort to remedy under the Act only. As held by the Supreme Court in Dhulabhai etc. v. State of Madhya Pradesh and another, AIR 1968 S.C. 78, even if the jurisdiction of the civil Court is specifically barred if the procedure prescribed by the statute is not followed and is against the fundamental principles of judicial procedure, then certainly the suit is competent. Therefore, even if it is assumed that the jurisdiction of the civil Court was barred, on the peculiar facts of this case it would not be so in view of the aforesaid decision of the Supreme Court. Similar view was taken in 1974 PLJ 5 (D.B.) and 1978 PLJ 251. Accordingly I upset the findings of the Courts below to the contrary on this aspect of the matter."

It would not be out of place to mention here that vide orders Exhibit P.5 dated February 4, 1980, Registrar, Cooperative Societies, adopted the right course of sending plaintiffappellant''s request to the Board of Directors of Primary Cooperative Land Mortgage Bank, Hoshiarpur, for disposal as envisaged in section 17(1) of the Punjab Cooperative Land Mortgage Banks Act, 1957 but somehow thereafter heard it himself on August 10, 1982 and rejected it in violation of the law on the point and statutory duty cast upon the Board aforesaid.

For the reasons given above, this appeal is allowed, the judgments and decrees of the learned two Courts below are site aside and the suit filed by the plaintiffappellant before the learned trial Court is decreed with costs throughout.