High Court
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{1} WP-2190-2018 IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 2190 OF 2018 Narendra s/o Babulal KarnawatAge: 52 yrs, Occu. BusinessR/o. Sukhshnanti, Aadarsh ColonyT.V. Centre, Sawedi, AhmednagarTal & Dist. Ahmednagar....PETITIONER[Org. Opponent No. 1]VERSUS1.Kanhurpathar Co-op. Credit Society Ltd.,Kanhurpathar, Taluka Parner, Dist. AhmednagarThrough its recovery officer/Manager2.Kishor Dharamchand SingviAge: Major, Occu. BusinessR/o. Mayur, Sambhaji ColonyNear Railway Station RoadAhmednagar, Tq. & Dist. Ahmednagar3.Rajendra Lalchandra KothariAge: Major, Occu. BusinessR/o. Shivkrupa, Raut Mla, Market YardAhmednagar, Tq. & Dist. Ahmednagar....RESPONDENTS [Res. No. 1- Orig. Petitioner] Mr. Vivek V. Tarde, Advocate for petitionerMr. Surendra V. Suryawanshi, Advocate for respondent No. 1 ....... CORAM : MANJUSHA DESHPANDE, J. RESERVED ON : 13th JANUARY, 2025 PRONOUNCED ON: 21st JANUARY, 2025 JUDGMENT :.Rule. Rule made returnable forthwith. Heard finallywith the consent of parties. Bhagyawant Punde {2} WP-2190-20182.The judgment and order dated 05.05.2017 passed byMaharashtra State Co-operative Appellate Court, Mumbai, Benchat Aurangabad, in Appeal No. 32/2016 is challenged in thepresent writ petition.3.It is the contention of the petitioner that respondentNo. 1 is credit co-operative society, which is duly registered asper provisions of Maharashtra Co-operative Societies Act, 1960.The society is in the business of banking and makes availablefinance to creditors and its members. Though, the petitioner atno point of time had availed any loan facility, in order to harasshim, respondent No. 1 has filed false and baseless claim in thenature of Dispute No. 783/2007 before the Co-operative Court,Ahmednagar. In the said dispute, amount of Rs. 5,00,419/- wassought to be recovered from the petitioner and respondent No. 2and 3, jointly and severally. It was claimed that the petitionerhad availed loan from respondent No. 1 and after one year of theloan becoming overdue, disputant society issued notice on02.03.2007 demanding the outstanding amount from thepetitioner. The petitioner i.e. original opponent No. 1 was servedwith summons of dispute after which the opponent causedappearance in the dispute and filed written statement at Exhibit-Bhagyawant Punde
Legal Reasoning
{3} WP-2190-201812. The opponent denied the dispute and the claims madetherein. It was contended that the dispute is not legal,maintainable and also not within limitation. It was alleged thatthe disputant society obtained signatures on blank documentsand forms and thereafter conveniently used said documents toclaim that opponent had availed loan, which is outstanding.4.On the basis of rival pleadings, issues were framedvide Exhibit-13 on 18.11.2009. Accordingly, the disputantadduced evidence by fling affidavit of evidence on 01.12.2009.The opponent i.e. present petitioner filed application seekingamendment in the written statement on 04.02.2010, on whichorder below Exhibit-29 was passed, thereby allowing theapplication subject to payment of cost of Rs. 500/- vide orderdated 17.09.2010 by the Co-operative Court, Ahmednagar. Itwas contended in the application that they have filed the writtenstatement, however, certain pleadings are necessary to be addedin the written statement. It was also contended that thepleadings and documents in the dispute filed by disputant didnot match, therefore, on these counts the amendment to thewritten statement was sought. In the proposed amendment,leave to add para 6A to the written statement was sought. InBhagyawant Punde {4} WP-2190-2018para 6A, petitioner has disputed about membership of the saidsociety. It was claimed that there is no relationship of societyand member between disputant and the opponent. They havenever become member of that society and the disputant needsto be put to the strict proof thereof. It was claimed thatpleadings and documents placed on record along with disputebeing conflicting should not be read in evidence and not allowedto be exhibited in the claim. It was also claimed that otherdocuments regarding resolution, proceeding book and otherdocuments annexed to the claim were denied. Pursuant to theorder Exhibit-29 dated 17.09.2010, additional issues came to beframed by the Co-operative Court vide order dated 03.12.2010,which reads thus:1A]Whether O are members of disputant society? 1B]Whether this Court has Ju to entertain the matter U/s. 91 of M.S.C. Act5.It is contended by the petitioner that respondent No.1 had already filed affidavit of evidence and even crossexamination of the witnesses of disputant had commenced on01.01.2010 itself. The cross examination continued andconcluded on 12.08.2014. Thereafter, petitioner i.e. opponentBhagyawant Punde {5} WP-2190-2018No. 1 has filed his affidavit in support of evidence on23.09.2014. His cross examination was concluded on 13.01.2015and thereafter Judge, Co-operative Court, Ahmednagar hasdecided the dispute vide judgment and order dated 31.10.2015.While deciding the dispute the issue No. 1A and 1B i.e. Whetheropponents are members of disputant society? and whether thisCourt has jurisdiction to entertain the matter u/sec. 91 of theM.C.S. Act?, have been answered in negative. Both the issueswere subsequently framed by Judge of Co-operative Court,Ahmednagar after the amendment made in the writtenstatement. The issue i.e. Whether the disputant prove that theopponent No. 1 obtained loan of Rs. 5,00,000/- from thedisputant and opponents No. 2 and 3 stood as guarantors for thesame?, was answered in negative. It was also held that thesignatures of opponents were obtained by disputant on blankpapers. Hence, the dispute filed by disputant society wasdismissed by Co-operative Court, Ahmednagar vide judgmentand order dated 31.10.2015.6.Being aggrieved by the judgment and orderdismissing the dispute, disputant society filed Appeal No.32/2016 before Maharashtra State Co-operative Appellate CourtBhagyawant Punde {6} WP-2190-2018Bombay, Bench at Aurangabad, under Section 97 of MaharashtraCo-operative Societies Act, 1961. It was challenged on theground that when learned Judge has come to the conclusion thatopponents were not members of the disputant society, the Co-operative Court was not justified in entertaining the dispute andrecording finding on merits of the matter. The findings recordedon the issue no. 2 to 7 were unwarranted since the Court haditself held that it does not have jurisdiction to decide the dispute.It was also challenged on the ground that since while answeringissue No. 1 it was held that disputant society being registeredco-operative society had filed dispute for recovery of loanborrowed by its member i.e. Opponent No. 1 to which membersof the society i.e. Opponents No. 2 and 3 stood guarantor. Inview of said positive finding being recorded, the finding of issueNo. 1A and 1B were unwarranted. Apart from that there wereother grounds raised by the society in the memo of appeal dated16.01.2016.7.Appeal No. 32/2016 was heard by Maharashtra StateCo-operative Appellate Court, Bombay, Bench at Aurangabad andhas been decided by its judgment and order dated 05.05.2017.Judge of the Appellate Court after taking into consideration theBhagyawant Punde {7} WP-2190-2018grounds raised by appellant therein has observed that, onperusal of record, it is evident that at Exhibit-54 the society hasproduced original applications of membership, however, thesedocuments are not exhibited and not referred during crossexamination of the opponents witness. The disputant has alsonot produced copy of resolution accepting opponentsmembership, counterfoils of payment receipt and sharecertificate. The compliance under Rule 19 is not on record toinfer membership of opponents. Therefore, the Trial Court hasanswered issue pertaining to membership in negative.8.Likewise, witness of the society has specificallyadmitted that the documents were not executed in his presence.Therefore, the issue in respect of disbursement of loan was alsoanswered in negative. The disputant urged before the Court thatnow they want to produce documents to prove the loandisbursement and membership of the opponents. The request ofthe disputant was opposed by opponents. It was contended thatit was unintentional negligence on the part of society in notpresenting its case before Trial Court. Therefore, Judge,Appellate Court has thought it fit to grant permission to leadadditional evidence to the disputant by passing order of remandBhagyawant Punde {8} WP-2190-2018in view of the fact that this being a money claim and publicmoney is involved, in order to do substantial justice, it wasthought appropriate to remand the matter back for leadingadditional evidence by imposing cost of Rs. 6,000/-. In order tomeet the ends of justice and compensate the respondent forinconvenience caused to him cost of Rs. 6,000/- was imposedand the judgment and award dated 13.01.2015 passed inDispute No. 783/2007 by the Judge, Co-operative Court,Ahmednagar was set aside and the matter was remanded back,by partly allowing the Appeal. The appellants were directed toappear before the Trial Court on 01.07.2017. The parties werepermitted to lead additional evidence and liberty to amend theirpleadings subject to law of amendment was granted. Beingaggrieved by said order of remand and setting aside of orderpassed by Co-operative Court, Ahmednagar, petitioner hasapproached this Court.9.It is the contention of the petitioner that since thefinding on the issue regarding jurisdiction and failure to provemembership has been given on the basis of evidence led by theparties, the order passed by Appellate Court is totallyunwarranted. Though sufficient opportunity was given to theBhagyawant Punde {9} WP-2190-2018disputant society to lead evidence, the disputant has not takenefforts to lead evidence. It would not be appropriate again toremand the matter back to lead evidence when everything isalready placed on record by the present petitioner. Though,respondent No. 1 had been given opportunity to lead evidence,he has willingly and voluntarily submitted purshis at Exhibit-37stating that they do not want to lead further evidence in supportof their case. In view of undisputed position, the order passed byCo-operative Court, Ahmednagar did not deserve to be interferedwith. Though, petitioner was subjected to cross examination bysociety and nothing could be elicited from the cross examinationof the petitioner. Only after taking into consideration thedocuments placed on record and the evidence, Co-operativeCourt, Ahmednagar has rightly dismissed the dispute filed byrespondent No. 1. Therefore, the order passed by Co-operativeAppellate Court remanding the matter back to the Co-operativeCourt, Ahmednagar deserves to be quashed and set aside.10.Learned advocate Shri. Suryawanshi, appearing forrespondent No. 1 has opposed the writ petition. It is contendedby him that it needs to be appreciated that after the affidavit ofevidence has been filed by officer of disputant on 01.12.2009,Bhagyawant Punde
Decision
{10} WP-2190-2018the application has been filed by petitioner seeking amendmentin the written statement. Upon the application being allowed,additional issues were framed on 03.12.2010. Since additionalissues were framed after filing of affidavit in support of evidence,he did not have opportunity to prove the additional issuesframed by the Co-operative Court, Ahmednagar. Even theaffidavit in support of evidence was filed by respondent No. 1 on23.09.2014. It was after the purshis filed by respondent No. 1herein on 10.03.2011 stating that they do not want to make anyamendment or change in the claim affidavit, long after that thepetitioner has filed affidavit of evidence on 23.09.2014.Therefore, the disputant society could not lead evidence to provethe additional issues which were framed after the amendmentwas allowed.11.I have heard the learned advocate for the petitionerand learned advocate for respondent No. 1 and perused thedocuments annexed with the writ petition. Admittedly, there wasnegligence on the part of disputant society, however, factremains that in their initial written statement, petitioner has notraised any objection regarding maintainability of the dispute onthe ground that they were not members of the society.Bhagyawant Punde {11} WP-2190-201812.Though, in the written statement which was initiallyfiled on 25.06.2008 they have denied to have availed loan facilityand also it was contended that there is no cause of action forfiling the dispute since the petitioner has not availed any loanand there is no outstanding, which can be recovered. Though allthe claims in the dispute were denied by the petitioner, however,in para 10 of the written statement, petitioner has contendedthat he is in the business of tractor and tractor spare parts,which is associated with the agriculture. As a result of financialdifficulties faced by agriculturists, the market has slowed down.As result of which there are huge amounts outstanding from theagriculturists which he has not yet received. He is facing financialcrunch, therefore, he is unable to pay the amount claimed by thedisputant. Therefore he has sought exemption from paying theamount and prayed that he should be granted permission to paythe amount in installment in future 10 years to come. Thisadmission in the written statement of the present petitioner itselfindicates that original respondent No. 1 i.e. petitioner had hadavailed loan which was outstanding. Though, there is negligenceon the part of disputant society to produce on record certaindocuments, however, this being money claim as observed by theCo-operate Appellate Court the disputant society deserve to beBhagyawant Punde {12} WP-2190-2018granted opportunity to lead evidence in respect of maintainabilityof the dispute filed by the disputant society. Similarly,considering that the Co-operative Court has already givennegative finding on the maintainability of dispute it wasunwarranted for the Court to give finding on the merits of thematter. Hence, in order to do complete justice, the Co-operativeAppellate Court has rightly quashed and set aside the orderpassed by the Co-operative Court, Ahmednagar in order toenable the disputant society to adduce evidence about loandisbursement and membership of the petitioner. Theco-operative Appellate Court has also compensated thepetitioner by awarding cost of Rs. 6,000/-.13.Though, the Co-operative Appellate Court hasremanded the matter back, however, no prejudice would becaused to the petitioner since Member, Co-operative AppellateCourt has also granted liberty to the petitioner by observingthat, parties to lead additional evidence. Though, respondent No.1 has been granted liberty to lead evidence, the same liberty isgranted to the petitioner to rebut the same or even adduce freshevidence in support of his case. Even the parties are at liberty toamend the pleadings subject to law of amendment. Hence,Bhagyawant Punde {13} WP-2190-2018considering that all the issues are kept open, there is noprejudice caused to the petitioner. Hence, in view of the same, inmy opinion, there is no error committed by the Co-operativeAppellate Court while passing the impugned order. Hence, orderdated 05.05.2017 passed by Member, Co-operative AppellateCourt, Mumbai, Bench at Aurangabad, being just, legal andproper and in the interest of justice does not deserve anyinterference. Writ petition is therefore dismissed. Rule standsdischarged. (MANJUSHA DESHPANDE, J.) Bhagyawant Punde