High Court
Legal Reasoning
1094.18wp(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 925 WRIT PETITION NO. 1094 OF 2018DEVGIRI NAGARI SAHAKARI BANK LTD AURANGABAD,BRANCH JALNA, THROUGH ITS BRANCH MANAGERVERSUS1. THE STATE OF MAHARASHTRA, THR. PRINCIPAL SECRETARY,COOPERATION AND TEXTILES DEPARTMENT, MUMBAI2. THE DIVISIONAL JOINT REGISTRAR, COOPERATIVE SOCIETIES,AURANGABAD3. THE ASSISTANT REGISTRAR, COOPERATIVE SOCIETIES, JALNA4. SMT. AANJU SURYAPRAKASH DEMDA5. SHRI. SURYAPRAKASH TEKCHANDJI DEMDA6. SHRI. PRAKASH ARJANDAS BASRANI ….Mr N. T. Tribhuwan, Advocate for petitioner Mr K. N. Lokhande, A.G.P. for respondent Nos.1 to 3Mr A. G. Talhar, Advocate for respondent Nos.4 and 5Mr P. S. Gaikwad, Advocate for respondent No.6WITHCIVIL APPLICATION NO. 3236 OF 2021 IN WP/1094/2018AANJU SURYAPRAKASH DEMDA AND ANOTHERVERSUSDEVGIRI NAGARI SAHAKARI BANK LTD THROUGH BRANCHMANAGER / OFFICER AND OTHERS ….Mr A. G. Talhar, Advocate for applicantsMr N. T. Tribhuwan, Advocate for respondent No.1Mr K. N. Lokhande, A.G.P. for respondent Nos.2 to 4 CORAM : PRAFULLA S. KHUBALKAR, J. DATE : 10th June, 2025 1094.18wp(2) PER COURT:1.Heard learned Advocate Mr Tribhuwan for the petitioner,learned A.G.P. for respondent Nos.1 to 3 and learned Advocate MrTalhar for respondent Nos.4 and 5 in presence of respondentNo.5/Shri. Suryaprakash Tekchandji Demda.2.This petition takes exception to the order dated29/03/2014, passed by respondent No.3/Assistant Registrar,Cooperative Societies, Jalna and the order dated 31/03/2017, passed bythe Divisional Joint Registrar of the Cooperative Societies,Aurangabad, refusing to issue recovery certificate under Section 101of the Maharashtra Co-operative Societies Act, 1960 (for short ‘theMCS Act’) against respondent Nos.4 to 6.3.The petitioner is a cooperative bank which has advancedloan to respondent Nos.4 to 6 and on account of failure to repay theloan, instituted proceeding under Section 101 of the MCS Act beforerespondent No.3/Assistant Registrar, Cooperative Societies, bearingApplication No.1466/2008, seeking recovery certificate for an amountof Rs.20,15,217/- as on 31/07/2008 with future interest. The AssistantRegistrar issued recovery certificate dated 31/12/2008 in favour of thepetitioner bank against respondent Nos.4 to 6 for an amount of 1094.18wp(3) Rs.20,15,217/- with costs, expenses and interest @ 16.5% p.a. w.e.f.01/08/2008. Respondent Nos. 4 to 6 challenged this certificate videWrit Petition No.2255/2009 before this Court and by order dated16/04/2012, the writ petition was disposed of by remanding the matterback to respondent No.3/Assistant Registrar with a direction to makefresh enquiry, subject to deposit of Rs.8,00,000/- by respondent Nos.4to 6. After the matter was remanded, the Assistant Registrar conductedthe proceeding afresh after issuing notices to both the parties. 4.By order dated 29/03/2014, the Assistant Registrar,Cooperative Societies, Jalna, respondent No.3, passed an elaborateorder observing therein that there was discrepancy with respect to theamount claimed by the petitioner bank, since initially recoverycertificate was claimed with respect to amount of Rs.20,15,217/-,however, after the matter was remanded, the claim was made forRs.35,60,746/-. It was also specifically observed that, since the bankhas not specified the exact amount for which the certificate wasclaimed, the bank was not entitled for certificate under Section 101 ofthe MCS Act. 5.Feeling aggrieved by the order passed by the AssistantRegistrar, the petitioner filed Revision Application No.05/2015 before 1094.18wp(4) the Divisional Joint Registrar, Cooperative Societies, Aurangabad,respondent No.2. The parties appeared before respondent No.2 and onconsideration of the controversy, the revision application was decidedby order dated 31/03/2017, by which it was rejected. By this order, theDivisional Joint Registrar also observed that, there was discrepancy inthe amounts claimed by the petitioner bank, as earlier an amount ofRs.20,15,217/- was claimed in the year 2008 and thereafter, an amountof Rs.35,60,746/- was claimed in the year 2014. The Divisional JointRegistrar also observed that the respondents/borrowers have expressedreadiness to compromise the matter by paying Rs.6,00,000/- and byconsidering this aspect, the revision application was rejected, therebyrefusing to grant certificate under Section 101 of the MCS Act. Thepetitioner has challenged both these orders by way of instant petition.6.Learned Advocate Mr Tribhuwan for petitioner submitsthat the impugned orders are grossly erroneous since there is nodiscrepancy at all as observed by respondent Nos.2 and 3. Hevehemently submits that there is no dispute about advancing loan torespondent No. 4 to 6 and on account of their failure to repay the loan,proceedings were filed under Section 101 of the MCS Act in the year2008, claiming an amount of Rs.20,15,217/- and thereafter in the year 1094.18wp(5) 2014, after the matter was remanded, the claim was raised forRs.35,60,746/- and as such, there is no discrepancy. He submits thatrepeated readiness of the respondents to compromise the matter andsome payments made by respondents show that there is an outstandingamount for which bank is entitled for recovery certificate. By invitingmy attention to the impugned order passed by respondent Nos.2 and 3,he submits that the exact amount due can now be brought on record bygranting opportunity to the bank by remanding the matter torespondent No.3/Assistant Registrar, Cooperative Societies, Jalna. Hesubmits that, undisputedly the loan amount is not recovered and anopportunity be granted to the bank to submit the necessary documents,in the interest of justice. 7.Per contra, learned Advocate Mr Talhar for respondentNos.4 and 5 strongly opposes the petition. His primary contention isthat the proceeding under Section 101 of the MCS Act itself were notmaintainable in absence of any statement of accounts as required byprovision of Section 101 of the MCS Act. He further submits that, inview of the disputed questions of fact, particularly the discrepancies inthe amount, the petitioner bank ought to have approached theCooperative Court by filing Dispute under Section 91 of the MCS Act. 1094.18wp(6) By pointing out the reasons mentioned in the impugned order, hesupports the impugned order.8.I have considered the rival contentions. Perusal of theimpugned orders show that respondent No.3/Assistant Registrar, hassimply observed that the amount claimed in the year 2008 wasRs.20,15,217/-, however, after the remand, the amount is enhanced toRs.35,60,746/- as on 31/03/2014. Pertinent to note that, this cannot beconsidered to be a discrepancy since the amounts claimed are after agap of about eight years. The other reasons mentioned in theimpugned order for refusing the certificate under Section 101 of theMCS Act are also cryptic. Even the order passed by the DivisionalJoint Registrar is on the same lines, and by observing the discrepanciesand readiness of the borrower to make some payment by way ofcompromise, the revision application was rejected. 9.It has to be noted that provisions of Section 101 of theMCS Act require the bank to place on record substantial documents inthe nature of statement of accounts and any other documents forseeking the certificate. In the instant case, the respondents alsocontend that the outstanding amount was recovered out of fixeddeposit of the borrowers, and therefore, nothing remained to be paid. 1094.18wp(7) As such, it appears that the claim of petitioner bank for recoverycertificate under Section 101 of the MCS Act was not properly decidedonly on account of alleged discrepancy. The bank is entitled forrecovery of its dues, if any, in case it is in a position to substantiate itsclaim for recovery certificate under Section 101 of the MCS Act.Interest of justice would be subserved if rival contentions of parties areallowed to be considered afresh.10.In view of the controversy involved, it is in the interest ofjustice to remand the matter back to Assistant Registrar of theCooperative Societies, Jalna, respondent No.3. Accordingly, theimpugned orders passed by respondent Nos.2 and 3 are quashed andset aside and the matter is remitted back to respondent No.3/AssistantRegistrar, Cooperative Societies, Jalna, to consider it afresh on its ownmerits by granting opportunity to the parties to place on recordrelevant documents. In view of the controversy involved, it isdesirable that the proceedings are decided expeditiously and in anycase within a period of two months from the date of the appearance ofthe parties. The parties are directed to appear before respondentNo.3/Assistant Registrar, Jalna on 01/07/2025. Parties are directed tocooperate the authority in early disposal of the proceedings.
Decision
1094.18wp(8) 11.Registry of this Court is directed to send the Record andProceeding to the office of respondent Nos.2 and 3 expeditiously.12.The writ petition is disposed of. Accordingly, pendingcivil application also stand disposed of. (PRAFULLA S. KHUBALKAR, J.)sjk