High Court
Legal Reasoning
61 wp 6316 2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 6316 OF 2024Sampada Nagari Sahakari Patsanstha Ltd., Ahmednagar through its Liquidator1st Floor, Lltaki, Ahmednagar,District Ahmednagar.Through its Liquidator.… PETITIONERVERSUS1.The Divisional Joint Registrar,Co-operative Societies, Nashik Division,Nashik.2.Sau. Sunita w/o. Satish Pathare,Age : 39 years, Occu. Household and Agril., R/o. At. Jawala, Taluka Parner,District Ahmednagar. 3.Sarjerao Gopal Jadhav,Age : 46 years, Occu. Agril., R/o. Devibhoyare, Taluka Parner,District Ahmednagar.4.Rajendra Maruti Chaudhari,Age : 49 years, Occu. Agril., R/o. Parner, Taluka Parner,District Ahmednagar.5.The Assistant Registrar,Co-operative Societies (Parseva),Ahmednagar District Patsanstha SahakaariFederation Limited, Ahmednagar.… RESPONDENTSkomal kamble 1/8
Legal Reasoning
61 wp 6316 2024_______________________________________________________________•Mr. V. H. Dighe, Advocate for the Petitioner•Ms. Kalpalata Patil – Bharaswadkar, Addl. G.P. for Respondent Nos.1 and 5•Mr. R. A. Tambe, Advocate for Respondent No. 2_______________________________________________________________CORAM:ROHIT W. JOSHI, J.DATE:16th JUNE, 2025O R D E R :1.The present petition takes exception to order dated06.05.2024, passed by the Divisional Joint Registrar of Co-operativeSocieties, Nashik Division, Nashik in Revision Application No. 96 of2023, whereby the said authority has condoned delay of around 13 yearscaused in challenging order dated 18.03.2010 passed by the AssistantRegistrar, Co-operative Societies, Ahmednagar, issuing certificate underSection 101 of the Co-operative Societies Act, 1960. Having condonedthe delay, learned authority proceeded to allow the revision applicationfiled under Section 154 of the said Act vide order dated 13.05.2024. 2.The petitioner is a Credit Co-operative Society registeredunder the Maharashtra Co-operative Societies Act. The petitioner hadinitiated a proceeding under Section 101 of the Co-operative SocietiesAct against respondent nos. 2 to 4 for recovery of amount of Rs.3,76,560/-. The said application was allowed vide order dated18.03.2010. Initially, against the said order dated 18.03.2010,komal kamble 2/8 61 wp 6316 2024respondent no. 2 preferred an appeal under Section 152 of the said Acton 29.03.2023. Respondent No. 2 has also filed an application forcondonation of delay. The order and certificate issued under Section 101are subject to revisional jurisdiction of respondent no. 1, and accordingly,the said appeal was treated as a revision. 3.By order dated 07.06.2023, the delay caused in filing of therevision application was condoned and execution of the certificate wasstayed by respondent no. 1. The petitioner approached this Court byfiling Writ Petition No. 6332 of 2023. The order dated 07.06.2023 wasquashed in the said petition on the ground that the revision wasentertained despite non-compliance with the mandatory condition ofdepositing 50% of the amount recoverable as per the certificate.Thereafter, respondent no. 2 has thereafter deposited the amount incompliance of the statutory provision. 4.On the second occasion, the revision application was takenup for hearing after remand and was allowed finally vide order dated12.12.2023. However, on this occasion, the delay was not condoned,while the revision was allowed on merits. The petitioner againapproached this Court vide Writ Petition No. 1445 of 2024. This Courtwas pleased to quash the order dated 12.12.2023 and remand the matterfor decision afresh vide order dated 28.03.2024, directing that thekomal kamble 3/8 61 wp 6316 2024application for condonation of delay should be taken up first, and only ifthe delay is condoned, the revision should be considered on merits. 5.After the second remand, respondent no. 1 condoned thedelay vide order dated 06.05.2024. Having so condoned the delay, therevision is allowed vide order dated 30.05.2024. Both these orders areimpugned in the present petition by the Society. Perusal of the orderdated 06.05.2024 demonstrates that the authority has dealt with meritsof the matter without adverting to the cause of delay. It needs to bementioned that the delay is an inordinate delay of 13 years, which hasbeen condoned without dealing with the explanation offered in supportof condonation. The learned authority has, however, dealt with themerits of the matter while condoning the delay. It is now well settled bya catena of decisions that merits of the matter cannot be looked intowhile considering application for condonation of delay. The authority hascompletely misdirected itself in condoning the delay solely dealing withmerits of the matter. The order of condonation of delay dated06.05.2024, therefore, deserves to be quashed and set aside, and isaccordingly quashed. 6.As stated above, having condoned the delay, the authorityalso allowed the revision on merits vide order dated 30.05.2024. Therevision application has been allowed placing reliance on undatedkomal kamble 4/8 61 wp 6316 2024certificate issued by some person on a plain paper. The signature of theperson is affixed along with rubber stamp, which reads thus :“For Sampada Nagari Sahakari Patasanstha Ltd.”7.Besides the rubber stamp, another rubber stamp which ispurportedly round seal of the petitioner society appears on the saiddocument. The document does not bear any date. It is stated thatrespondent no. 2 had taken loan of Rs. 3,30,000/- for purchasing avehicle on 27.08.2007 and that she repaid the entire loan amount alongwith interest on 25.09.2009. However, the amount actually paid is notmentioned in the said certificate. The component of interest is also notmentioned. The certificate further recites that, in view of repayment ofloan, charge created by of the petitioner society over the vehiclepurchased by respondent no. 2 was released. 8.The learned counsel for the petitioner states that there areseveral offences registered against the Manager of the Society for issuingsuch certificates. He states that the record of the Society does notindicate that payment of loan was refunded or received in the account ofthe Society. The petitioner was heard on merits earlier, during the courseof hearing on 10.06.2024. A query was put to the learned counsel forrespondent no. 2 as to whether he has any other document tosubstantiate that the loan amount was actually repaid. This query waskomal kamble 5/8 61 wp 6316 2024specifically posed in view of the fact that the certificate does not reflectthat the loan amount was deposited from time to time. The certificaterecords that entire outstanding amount was paid on single day, andapparently under one single entry. If such a large amount was paidthrough a single transaction, respondent no. 2 would normally havesome documentary evidence, such as a bank statement, to substantiatethe same. However, learned counsel for respondent no. 2 has stated thatsuch documentary evidence is no longer available with respondent no. 2.He contends that the certificate records that the payment was made on25.09.2009, and after a period of 14 years, it is plausible that suchevidence may have been lost. 9.However, since I am convinced that the learned authorityhas committed a jurisdictional error in condoning the delay withoutdealing with the reasons for the delay, it will not be proper to commenton merits of the matter any further, since the order passed below theapplication for condonation of delay is liable to be rejected. Theconsequential order allowing the revision on merits also deserves to bequashed and set aside. 10.The learned counsel for respondent no. 2 has stronglyargued that the delay is properly explained inasmuch as it is contendedkomal kamble 6/8 61 wp 6316 2024in the application that notice of the original proceeding was not receivedby respondent nos. 2 to 4, and they gained knowledge about thecertificate only upon receiving notice in the execution proceeding in theyear 2023. However, this contention is also not dealt with by therevisional authority. The revisional authority has not recorded anyfinding regarding the correctness or otherwise of the said contention. 11.The writ petition is partly allowed by quashing and settingaside orders dated 06.05.2024 (condoning the delay) and 30.05.2024(allowing the revision on merits). The matter is remitted back to the fileof respondent no. 1 for deciding the application for condonation of delayfirst, and then, in the event the delay is condoned, to decide the revisionon merits in accordance with law. 12.Parties shall appear before respondent no. 1 on 01.07.2025.Parties to note that separate notice of appearance will not be issued. Itwill be open for the parties to amend their pleadings in the applicationfor condonation of delay and the reply thereto, and lead evidence if theyso desire. 13.Needless to mention that since the revision is restored tofile, the interim order passed in favour of respondent no. 2 shall continuekomal kamble 7/8 61 wp 6316 2024till the revision is decided on its merits. However, if the delay is notcondoned, the interim order shall operate only till the date of said orderrejecting application for condonation of delay.14.The application for condonation of delay be decided on orbefore 31.10.2025. In the event, the delay is condoned, the revision bedecided on or before 31.12.2025.15.Needless to mention that the authority shall not beinfluenced by the observations made herein, which are made only for thepurpose of holding that application for condonation of delay is notdecided properly. [ROHIT W. JOSHI]JUDGEkomal kamble 8/8