High Court
Facts
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.1271 OF 2022Satish Vasantrao Dhengle,Age 42 yrs., Occ. Business,R/o At Post Nimgaon, Tq. Rahata,Dist. Ahmednagar. … Petitioner… Versus … 1The Special Recovery Officer,The Shirdi Merchant Nagri Co-operative Society Limited,Shirdi Branch, Shirdi,Tq. Rahata, Dist. Ahmednagar. 2The Assistant Registrar,Co-operative Societies,Near Onion Market, Tq. Rahata, Dist. Ahmednagar.3Sanjay Patil,Liquidator,R/o Office of Assistant Registrar,Kanda Market, Sakuri,Tq. Rahata, Dist. Ahmednagar.… Respondents...Mr. S.S. Kulkarni, Advocate for petitionerMr. V.H. Dighe, Advocate for respondent Nos.1 and 3Mr. S.B. Jadhav, AGP for respondent No.2...WITH
Legal Reasoning
6WP_1271_2022+2_JdDivision Bench Judgment of this Court in case of Sundeep Polymers PrivateLimited and others vs. The State of Maharashtra and others [2010(6) AllM.R. 550], the Judgment in case of Khushal Narayanrao Mundhe vs. TheState of Maharashtra and others [2007(4) Mh.L.J. 333] and Judgment incase of Kadir Ilahi Bagwan vs. Usha Anandrao Yadav [2019 (1) Mh.L.J. 705].6Having considered submissions advanced, it would beappropriate to delve into the grievance of petitioners while assailing orderpassed under Section 101 of the M.C.S. Act of 1960. Petitioners have placedon record copy of roznama i.e. proceedings before Assistant Registrar.Petitioners were duly served with notice of proceeding and they causedappearance through Advocate. On 02.08.2021 as per demand of learnedAdvocate appearing for petitioners the relevant documents were supplied bythe society. Thereafter, on 07.08.2021 reply was filed to application of Bank.Thereafter, proceedings was adjourned to 23.08.2021. On that day requestwas made on behalf of respondents for filing arguments. On 06.09.2021again time was granted to petitioners for filing written notes of arguments.The same request was repeated on 09.09.2021. On 16.09.2021 when requestof petitioners for adjournment was rejected and matter was posted for furtherhearing on 28.09.2021, even on that day no written argument was filed.Finally, proceeding was closed for orders. 7WP_1271_2022+2_Jd7Perusal of roznama would clearly reveal that sufficientopportunity was granted. After extending every opportunity for filing writtennotes of arguments, matter was closed. Assistant Registrar in his orderobserved that oral arguments were heard and finally impugned order hasbeen passed. There is nothing to indicate that impugned order is passedviolating Rule 86-A to 86-F. Once petitioner was served with notice and filedhis reply, if he fails to take the opportunity to tender written notes ofarguments, he cannot allege non compliance of the mandate under the rules.As observed above, at least on three consecutive dates petitioners soughtadjournment for filing written notes of arguments. Rule 86-E (3) of theM.C.S. Act mandates that on receipt of reply, the Registrar shall proceed tohear oral arguments of parties and shall close proceedings for orders. Inpresent case, there is no dispute that petitioners filed reply before Registrarand thereafter sought time to file written notes of arguments on multipleoccasions. Lastly, request for adjournment was refused in presence of learnedAdvocate appearing for petitioners. Thereafter, matter was posted for furtherhearing and closed for orders. It is, therefore, clear that petitioners weregranted ample opportunity in compliance with procedure prescribed underRule 86. 8So far as contention of petitioners that once dispute under 8WP_1271_2022+2_JdSection 91 is filed, Assistant Registrar could not have proceeded furtherunder Section 101 of the M.C.S. Act, it can be observed that respondent –bank had instituted proceeding under Section 101 on 21.06.2021. Petitionersappeared through Advocate on 19.07.2021 and filed dispute under Section91 before Co-operative Court on or about 14.09.2021. It is, therefore,evident that petitioners instituted proceedings under Section 91 after puttingappearance before Assistant Registrar in the proceedings under Section 101of the M.C.S. Act. Learned Advocate appearing for petitioners relies uponJudgment of this Court in case of Uttam Sabde (supra) to contend thatRegistrar could not have proceeded further. However, minute reading of lawlaid down of this Court in case of Uttam Sabde (supra) would show thatCourt ruled, proceedings under Sections 101 and 91 are distinct and differentjurisdictions, operating in different fields and can be independentlyproceeded. Conversely, Mr. V.H. Dighe, learned Advocate appearing forrespondent – bank relies upon Division Bench Judgment of this Court in caseof Shewalkar Developers (supra), wherein this Court observed as under -“20.We are of the considered view that the blanket orderwhich had the effect of preventing the Bank from exercising thestatutory right available to it under Section 101 of the said Actwas totally untenable in law. Not only that, but if the learnedCooperative Court desired to grant some relief in favour of thedisputant, the least that was expected was to pass some orderwhich at least partly protects the interest of the Bank. Theeffect of the order passed by the learned Cooperative Court was 9WP_1271_2022+2_Jdpreventing the Bank to exercise the statutory right available to itunder Section 101 of the said Act, for recovery of the hugeamount which was more than rupees five crores. In that view ofthe matter, we find that this is a fit case wherein this Courtshould exercise its extraordinary jurisdiction under Articles 226and 227 of the Constitution of India to set aside the order of theinferior Court, which is not passed in accordance with law.”If aforesaid observations are considered, there is no impedimentfor bank to avail remedy under Section 101 of the Act, even when borrowerresorts to file a dispute. In fact, the Division Bench of this Court observedthat – Co-operative Court in exercise of jurisdiction under Section 91 cannotprevent the bank from exercising statutory rights available under Section 101of the Act for recovery of the dues. The corollary of the aforesaid principlesof law espoused by this Court indicate that the filing of dispute under Section91 before Co-operative Court would not be impediment to bank to proceedwith the application under Section 101 before Registrar. 9In that view of the matter, even without going into the aspect ofavailability of alternate remedy of consideration of matters on merits thisCourt finds that writ petitions sans merits. Hence, following order. ORDER1Writ petitions stand dismissed.
Arguments
2WP_1271_2022+2_JdWRIT PETITION NO.14860 OF 2021Sandeep Vijaykumar Kapre,Age 34 yrs., Occ. Business,R/o Govind Nagar, Ganeshwadi,Shirdi, Tq. Rahata,Dist. Ahmednagar. … Petitioner… Versus … 1The Special Recovery Officer,The Shirdi Merchant Nagri Co-operative Society Limited,Shirdi Branch, Shirdi,Tq. Rahata, Dist. Ahmednagar. 2The Assistant Registrar,Co-operative Societies,Near Onion Market, Tq. Rahata, Dist. Ahmednagar.… Respondents...Mr. S.S. Kulkarni, Advocate for petitionerMr. V.H. Dighe, Advocate for respondent No.1Mr. S.B. Jadhav, AGP for respondent No.2...WITHWRIT PETITION NO.14858 OF 2021Shripad Vijaykumar Kapre,Age 40 yrs., Occ. Business,R/o Govind Nagar, Ganeshwadi,Shirdi, Tq. Rahata, 3WP_1271_2022+2_JdDist. Ahmednagar. … Petitioner… Versus … 1The Special Recovery Officer,The Shirdi Merchant Nagri Co-operative Society Limited,Shirdi Branch, Shirdi,Tq. Rahata, Dist. Ahmednagar. 2The Assistant Registrar,Co-operative Societies,Near Onion Market, Tq. Rahata, Dist. Ahmednagar.… Respondents...Mr. S.S. Kulkarni, Advocate for petitionerMr. V.H. Dighe, Advocate for respondent No.1Mr. S.B. Jadhav, AGP for respondent No.2...WITHCIVIL APPLICATION NO.5494 OF 2022 IN WP/1271/2022WITHCIVIL APPLICATION NO.12876 OF 2023 IN WP/1271/2022...CORAM :S.G. CHAPALGAONKAR, J.RESERVED ON :26th JUNE, 2024PRONOUNCED ON :15th JULY, 2024 4WP_1271_2022+2_JdJUDGMENT : 1Rule. Rule made returnable forthwith. Heard learned Advocatesfor the parties finally, by consent. 2Petitioners impugn the order dated 26.10.2021 passed byrespondent No.1 under Section 101 of the Maharashtra Co-operativeSocieties Act, 1960 (for the sake of brevity hereinafter referred to as “theM.C.S. Act”) and consequential recovery certificate dated 26.10.2021. 3Mr. Suvidh S. Kulkarni, learned Advocate appearing forpetitioners assails order on the ground that it has been issued withoutfollowing procedure contemplated under Section 86 of the Maharashtra Co-operative Societies Act and Rules, 1961. He would further submit thatpetitioners have already filed a dispute under Section 91 of the MaharashtraCo-operative Societies Act, which is pending before Co-operative Court. Inthat view of the matter respondent No.1 could not have proceeded further topass order under Section 101 of the Maharashtra Co-operative Societies Act.To buttress his contentions, he relies upon the decisions of this Court in caseof Uttam Pandurang Sabde and others vs. Osmanabad Janta Sahakari BankLimited and another [2010(1) Mh.L.J. 641], Barindra Overseas PrivateLimited and another vs. Shilpa Shares and Securities and others [2019(3) 5WP_1271_2022+2_JdMh.L.J. 651]. 4Per contra, Mr. V.H. Dighe, learned Advocate appearing forrespondent Nos.1 and 3 submits that petitions are not maintainable sincealternate efficacious remedy is available under Section 154 of the M.C.S. Actto assail the order passed by Assistant Registrar under Section 101 of theM.C.S. Act. He would further submit that proceedings under Section 91 and101 of the M.C.S. Act, operates in independent spheres and deals withdifferent situation. Merely because dispute is instituted under Section 91, theproceedings already initiated under Section 101 of the M.C.S. Act cannot beimpeded. To buttress his submissions he relies upon Division BenchJudgment of this Court in Shewalkar Developers Limited, Nagpur vs. RupeeCo-operative Bank Limited, Pune and others [2016(1) Mh.L.J. 382]. 5Mr. Suvidh Kulkarni, learned Advocate appearing for petitionerswhile refuting objection regarding maintainability of writ petitions submitsthat alternate remedy is not bar to entertain writ petitions when there isjurisdictional error in conduct of proceedings by subordinate authority. Hewould further submit that in present cases there is fragrant violation of rule86A to 86C which governs proceedings before Assistant Registrar underSection 101 of the M.C.S. Act. Further, there is fragrant violation ofprinciples of natural justice. To buttress his submissions he relies upon
Decision
10WP_1271_2022+2_Jd2Pending civil applications also stand disposed of. 3Rule is discharged. 4Amount deposited by petitioners in this Court be refunded alongwith interest accrued thereon, if any, to petitioners. ( S.G. CHAPALGAONKAR ) JUDGEagd