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PETITIONER: HARKISHAN DASS AND OTHERS

       Vs.

RESPONDENT: STATE OF HARYANA AND OTHERS

DATE OF JUDGMENT08/11/1995

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  1996 SCC  (7)  32        JT 1995 (8)   335  1995 SCALE  (6)349

ACT:

HEADNOTE:

JUDGMENT:                          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

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    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.