High Court
Facts
1 wp 7049.2022IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD903 WRIT PETITION NO. 7049 OF 20221.Saroj Dilip Gandhi,Age: 60 years, Occu.: Business,R/o.: Devendra Bunglow, Anand Rushiji Road,Ahmednagar, Dist.: Ahmednagar2.Suvendra Dilip Gandhi,Age: 42 years, Occu.: Business,R/o.: Devendra Bunglow, AnandRushiji Road, Ahmednagar,Dist.: Ahmednagar3.Vaibhav Dharmnath Khalate,Age: 38 years, Occu.: Business,R/o.: Shirala, Tal.: Pathardi,Dist.: Ahmednagar .. PetitionersVersus.Bhaichand Hirachand Raysoni Multi StateCo-operative Credit Society Limited(under liquidation) through SureshSitaram Sapkale, Age: 42 years,Occu.: Service, R/o.: E-2, 3, 4, 5,Raymond Chaufuli, Ajintha Colony,Jalgaon Road, Dist. Jalgaon .. Respondent...Advocate for the Petitioners : Mr. Shaikh Mazhar A. JahagirdarAdvocate for Respondent : Mr. Anandsingh Sangramsingh Bayas... CORAM:ARUN R. PEDNEKER, J.DATE:10th MAY, 2024JUDGMENT:1.Heard. 2 wp 7049.20222.By the present writ petition, the petitioners are challengingthe impugned order dated 17.01.2022, whereby the application filed bythe Judgment Debtor at Exhibit 32 for adjustment of Rs.1,15,00,000/- inthe loan account and for direction to issue the fresh account statement bythe Bank is rejected, and also, challenges order dated 16.03.2022,whereby the applicant prayed in application at Exhibit 38, that the list offixed deposits of the near relatives of the petitioner are given to the Bankand the same to be adjusted towards the loan account of petitioner no.1.3.This court while issuing notice, on 06.10.2022, this court hasrecorded the submissions of the petitioners as under,“According to the petitioner he has transferred an amount ofRs. 1,15,00,000/- to the respondent/decree holder on13.08.2018 and fixed deposit receipts totally amounting toRs. 1,90,00,000/- are given to the respondent/decreeholders. Thus, the petitioner has paid decretal amount,however, though the petitioner requested the ExecutingCourt to adjust the said amount, applications filed by thepetitioner in that behalf are rejected, since, the record of therespondent was not available for verification of the same.Order of civil prison is passed against the petitioners on16.03.2022. The petitioners apprehends that any time saidorder can be executed.”and, accordingly, this court noted the submissions of thepetitioner as above and granted stay in terms of prayer clause “D”. 3 wp 7049.20224.Brief facts leading to the filing of the petition can besummarized as under:-A.It is the contention of the petitioners that therespondent bank filed the execution petition bearingArbitration Darkhast No.1999 of 2021 against the petitionersand three others contending therein that petitioner no.1 hadbeen given a term loan of Rs.2,50,00,000/-, on 25.03.2014,through it’s Navi Peth, Jalgaon branch office, on thecondition of repayment within 48 months from the date ofdisbursement with interest thereon at the rate of 20% perannum.B.The petitioners no.2 and 3 are the guarantors ofthe loan. Petitioner no.1 failed to repay the loan, as such, thematter was referred to the arbitrator and the award waspassed, on 18.04.2015, against the petitioners and theguarantors.C.The respondent / bank thereafter filed executionof the same before the Principal District Judge, Ahmednagar,which has been assigned to the C.J.S.D., Ahemednagar.Petitioner No.2 filed an application at Exhibit 32 and prayedfor producing the account statement on record by the decree
Legal Reasoning
7 wp 7049.2022process of law and considering the documents on record passed thearbitral award dated 18.04.2015.10.In the year 2018 the society filed the execution proceedingsfor the amount of Rs.4,86,98,690/- as per the award passed by thelearned arbitrator. The liquidator has accepted that as a matter of record,petitioner no.1 has deposited Rs.1,15,000/- in her loan account byRTGS. The judgment debtors, since, 2018 made frivolous spuriousobjections with mala fide intention to delay and obstruct the execution ofaward.11.The liquidator has also stated in his affidavit that thepetitioner has filed various application for statement of account and therespondent / liquidator has replied to the same indicating that as on23.03.2022, Rs.7,21,27,421/- is due against the petitioners.12.Having considered the rival submissions, it is to be notedthat the respondent / bank has accepted the payment ofRs.1,15,00,000/-. However, on perusal of the statement produced asregards the deposit of near relatives of petitioner no.1 with prayer toadjust the same in loan account, the petitioners seek to adjust the fixeddeposit of third persons into the loan account of petitioner no.1. Theseare deposits of other customers. They may take steps to withdraw from 8 wp 7049.2022their fixed deposits and make payment into the loan account of thepetitioner. The bank cannot accept the request of petitioner no.1 toadjust the amount deposited by other customers of the bank into the loanaccount of petitioner no.1 without having a specific request from theconcerned depositors for liquidating their deposits and, further, requestedthe bank to transmit the same into the loan account of the petitioner.Merely by giving some statements of amounts deposited by othercustomers, the same cannot be adjusted towards the loan account of thepetitioner without the concurrence of the depositors.13.If the depositors are interested in liquidating their depositsand making payment into the loan account of the petitioner, thedepositors are free to do so individually. The bank cannot on anapplication by the judgment debtor liquidate deposits of third personand, as such, something that is unlawful cannot be undertaken by thebank at the instance of the petitioners. 14.Payment of Rs.1,15,00,000/- is admitted by the bank.Admittedly, no other payment is made by the petitioner after taking loanof Rs.2,50,00,000/- in the year 2014. His only contention is that he hasgiven the list of deposits of close relatives of petitioner no.1 to beliquidated and adjusted in the loan account of petitioner no.1. However,such an exercise cannot be undertaken by the bank unless those 9 wp 7049.2022individuals take necessary steps to liquidate their deposits and adjusttheir amounts in the loan account of the petitioner. The bank is underliquidation, as such, only the amount that may be available on liquidationof the deposits to the depositors could be adjusted to the loan account ofpetitioner no.1 and only on the specific request of the concernedcustomer.15.It is the contention of the petitioners that in the executionproceedings all the contentions have to be decided by the executing courton merits and the executing court has failed to do so. However, in theinstant case, the petitioner has not made out case of payment of loanamount. Admittedly, the petitioner has only paid Rs.1,15,00,000/- and hehas to pay the remaining decretal amount along with accrued interest.16.The liquidator has stated in it’s affidavit that the decretalamount is Rs.2,86,81,589/- along with future interest and, as per theloan statement, amount of Rs.7,21,27,421/- is due against the petitioneras on 23.03.2022. The respondent / liquidator is directed to file the saidstatement of outstanding dues before the executing court beforeproceeding in the execution.
Arguments
4 wp 7049.2022holder. It is contended that petitioner no.1 has deposited anamount of Rs.1,15,00,000/- by way of RTGS, on 13.08.2018from Nagar Urban Co-operative Bank (Scheduled) MultistateLtd., Ahemednagar after the arbitration decree and beforefiling of the execution petition. It is the contention of thepetitioners that the respondent bank in it’s reply submittedthat the respondent society is in liquidation and the relevantpapers has not been received. It is further contended by thepetitioner that the bank in it’s reply has stated that the entiredocuments in relation to the borrowers accounts are in thecustody of the investigating officer as such it will not bepossible to produce the record statement of account in thecourt.D.The executing court by order dated 17.01.2022was pleased to reject the application at Exhibit 32 and it heldthat the court cannot go beyond the decree. Thereafter,petitioner no.1 filed another application at Exhibit 38seeking direction to the bank to adjust an amount of fixeddeposit of around Rs.1,90,02,124/- submitted to the bank.The same was also rejected by the executing court, on16.03.2022. Thus, against the order dated 17.01.2022, 5 wp 7049.2022below Exhibit 32 and, 16.03.2022, below Exhibit 38, thepresent writ petition is filed, so also, the order of theexecuting court dated 16.03.2022, below Exhibit 28,whereby the executing court has also issued arrest warrantunder Order XXI Rule 38 of the CPC against petitioners no.2and 3 is also challenged. 5.It is the contention of the petitioners that the application atExhibit 32 by petitioner no.2 was required to be allowed in view ofprovisions of Order 21 Rules 1 and 2 of the CPC and that it was necessaryunder Order 21 Rules 1 and 2 of the CPC to call for the accountstatement. It is further contention of the learned counsel for thepetitioners that Exhibit 38 filed by petitioner no.1 so as to adjust the listof fixed deposit submitted to the respondent credit society towards therecovery amount ought to have been allowed as the respondent hasneither disputed nor denied of such fixed deposit.6.The learned counsel for the petitioners submits that, therespondent has come up with the case and the entire record of therespondent in respect of borrowers were in the custody of the earlierliquidator Shri Jitendra Kandare but after the complaints, the said recordis in the custody of Daccan Police Station, Pune City, and, as such, it isnot in a position to produce the same before the executing court. 6 wp 7049.20227.It is further contention of the petitioners that sincesubstantial amount of arbitration award has been deposited by thejudgment debtor and unless the account statement and exact figure ofamount if any remained to be recovered is brought before the learnedexecuting court, the execution shall not be proceeded.8.Per contra, the learned counsel appearing for the respondenthave filed reply and has stated that the liquidator came to be appointedover the society and the liquidator has filed an affidavit in the matter. Theliquidator submitted that the society has more than three lacs depositorswho have deposited approximately Rs.740 Crores. The said society hasnearly 264 branches spread over six states. The liquidator appointed onthe said society, after taking charge, he has taken steps to collect therecord from all these branches and audit work by collecting the necessaryinformation is in progress. There are various criminal cases initiatedagainst the managing committee members and there was hue and cryamong the depositors for getting the refund of the deposit. 9.On affidavit it is stated that the petitioners obtained a loan ofRs.2,50,00,000/- in the year 2014. The petitioners failed to repay theloan amount as per the loan agreement, as such, the respondent filedrecovery proceedings under section 84 of the Multi-State Co-operativeSociety Act. The learned counsel further submits that after following due
Decision
10 wp 7049.202217.In view of the same, the writ petition stands dismissed withabove observations. However, the petitioners will not be taken in civilprison for the period of ten (10) weeks from today. [ARUN R. PEDNEKER, J.]marathe