{1}
revised (3) lpa 206.12.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
LETTERS PATENT APPEAL NO. 206 OF 2012
IN
WRIT PETITION NO.7649 OF 2011.
1] Kedarnath Ramdayal Bang,
Age 58 years, Occ. Agri. & Business,
R/o. Sonai, Tq. Newasa,
Dist. Ahmednagar.
2] Radhakrishna Tribakraj Bihani
Age 77 years, Occ. Agri.
R/o. Ashwi Budruk, Tq. Sangamner,
Dist. Ahmednagar.
3] Mahesh Gokuldas Asawa,
Age 38 years, Occ. Business & Agri.
R/o. Songaon, Tq. Rahuri,
Dist. Ahmednagar.
4] Sau. Sunita Shrikant Mundada,
Age 45 years, Occ. Household,
R/o. Bansilalngar, aurangabad.
5] Shrikant Shamsundar Kabra
Age 45 years, Occ. Agri.
R/o. Yeola, Tq. Yeola, Dist. Nashik.
APPELLANTS.
Versus
1] The State of Maharashtra
Through Secretary,
Cooperative Department,
Maharashtra State,
Mantralaya,
Mumbai-32.
2] The Divisional Joint Registrar
Cooperative Societies, Nashik Division,
Nashik.
::: Downloaded on - 23/12/2013 20:34:59 :::
{2}
revised (3) lpa 206.12.odt
3] The District Dy. Registrar,
Cooperative Societies, Dist. Ahmednagar.
4] Mahatma Phule Nagari Sahakari
Patsanstha, Bhingar, Ahmednagar
(through its Manager).
5] Shri Sant Sawta Maharaj Gramin
Bigar Sheti Sahakari Patsanstha,
Songaon, Tq. Rahuri,
Dist. Ahmednagar.
6] Appasaheb Govind Antre,
Age Major. Occ. Agri.
R/o. Songaon, Tq. Rahuri,
Dist. Ahmednagar.
ig Respondents
7] Nandkishor s/o. Shivnarayan Attal
Age 50 years, Occ. Business,
R/o. Yeola, Tq. Yeola,
Dist. Nashik.
8] Sou. Vishwakanta w/o. Jagdish Attal
Age 52 years Occ. Household,
R/o. Yeola, Tq. Yeola,
Dist. Nashik.
9] Vijaykumar s/o. Shivnath Lahoti,
Age 52 years Occ. Agri.,
R/o. Yeola, Tq. Yeola,
Dist. Nashik.
10] Sou. Chandrakala w/o. Laxminarayana Ladhe,
Age 66 years Occ. Household,
R/o. Balikashram Road,
Tq. And Dist. Ahmednagar.
11] Smt. Alka Meenanath Antre,
Age 40 years, Occ. Household
R/o. Satral, Tq. Rahuri,
Dist. Ahmednagar.
12] Dnyandeo Bhaguji Anap,
Age 65 years, Occ. Agril.
R/o. Sonegaon, Tq. Rahuri
Dist. Ahmednagar.
::: Downloaded on - 23/12/2013 20:34:59 :::
{3}
revised (3) lpa 206.12.odt
13] Raghunath Maruti Pathare,
Age 40 years, Occ. Agril.
R/o. Rampur,Tq. Rahuri,
Dist. Ahmednagar.
14] Ashok Raghunath Jumbukar
Age 42 years, Occ. Agri.
R/o. Satral, Tq. Rahuri,
Dist. Ahmednagar.
15] Karbhari Waman Dhige,
Age 70 years, Occ. Agri.
R/o. Dhanore, Tq. Rahuri,
Dist. Ahmednagar.
16] Kaysalyabai Rambhau Shinde,
Age 50 years, Occ. Household,
R/o. Songaon, Tq. Rahuri,
Dist. Ahmednagar.
17] Geetabai Bhanudas Tajane,
Age 65 years, Occ. Household,
R/o. Sonegaon, Tq. Rahuri,
Dist. Ahmednagar.
RESPONDENTS/INTERVENORS.
Mr. N.V. Gaware, Advocate for the appellants.
Mr. S.K. Tambe, AGP for respondent Nos. 1 to 3.
Mr. M.R. Sonawane, Advocate for respondent No.4.
Mr. R.N. Dhorde, Senior Advocate instructed by Mr.
B.T. Bodkhe, Advocate for respondent No.6
Mr. Mukul Kulkarni, Advocate for the respondent Nos. 7
to 10.
Mr. S.B. /Jadhav, Advocate for respondent Nos. 11 to
17.
CORAM : A.H. JOSHI &
RAVINDRA V. GHUGE, JJ.
DATE OF RESERVING JUDGMENT :10th DECEMBER, 2013. DATE OF PRONOUNCEMENT OF JUDGMENT :13th DECEMBER, 2013 ::: Downloaded on - 23/12/2013 20:34:59 ::: {4} revised (3) lpa 206.12.odt JUDGMENT : [ PER A.H. JOSHI,J] 1] Heard both sides on different dates and at length.
2] The appellants were allowed to substitute the bunch of annexures by arranging those in sequence and by placing additional annexures on record. While deciding this appeal, we have referred to the paper book in which substituted bunch of annexures is on record.
FACTS, DATES AND EVENTS.
3] It would be useful to refer to the events as they arose in sequence of dates. Those are as follows :-
Sr. Dates and Particulars of event No.
1 The appellants, respondent No.6 and intervenors are depositors of respondent No.
5. They had deposited their money with the respondent No.5 society.::: Downloaded on - 23/12/2013 20:34:59 :::
{5} revised (3) lpa 206.12.odt The intervenors are supporting the action of the amalgamation of respondent No.5 in the respondent No.4 society. It is alleged that after amalgamation, said deposits have been renewed by the respondent No.4 society.
2 The area of operation of the respondent No.5 is District Ahmednagar. It was running into losses. The money of depositors of the respondent No.5 society could not be repaid by the respondent No.5, and hence, the Managing Committee members as well as the Members of the respondent No.5 society took steps for its amalgamation in some other fit society.
314/8/2009 :-
The Annual General Meeting of Respondent No.5 was called, during which Resolution No.13 was passed proposing that the respondent NO.5 society be amalgamated into some other society which may be economically sound.
::: Downloaded on - 23/12/2013 20:34:59 :::{6} revised (3) lpa 206.12.odt 4 31/10/2009 :-
The respondent No.5 resolved to request the respondent No.4 society to take over in amalgamation, the respondent No.5 society.
5 31/10/2009 :-
The committee of Respondent No.5 decided to call special general body meeting to discuss the issue regarding amalgamation of respondent No.5 society.
Therefore the public notice was issued in "Daily Sarvamat" notifying that the special general body meeting of the members of respondent No.5 society has been scheduled on 1/10/2010 to discuss the issue regarding the amalgamation. The agenda was also issued to the individual members of the society.
6 1/1/2010 :-
In the special general body meeting it was resolved by the general body (with 95% majority i.e. 285 members being present), to amalgamate the respondent No.5 society into ::: Downloaded on - 23/12/2013 20:34:59 ::: {7} revised (3) lpa 206.12.odt the respondent NO.4 society.
7. The said resolution was opposed by 4-5 defaulting members including the respondent No.6, and they left the place of meeting by resorting to walk out.
8 02/01/2010 :-
The Agenda was issued by the respondent No.4 society for conducting special general meeting on 10/1/2010 for discussing the issue of amalgamation of Respondent No.5 into Respondent No.4.
9 10/01/2010 :-
The special general meeting of respondent No. 4 society was conducted and it was resolved to give effect to the amalgamation of the respondent NO.5 with the respondent No.4 society.
10 29/3/2010 :-
The respondent No.4 society submitted a proposal with the respondent No.3 District Deputy Registrar, for amalgamation of respondent NO.5 with the respondent No.4 society.::: Downloaded on - 23/12/2013 20:34:59 :::
{8} revised (3) lpa 206.12.odt 11 08/04/2010 :-
The respondent No.3 District Deputy Registrar directed the Taluka Deputy Registrar, Cooperative Societies, Ahmednagar to submit his report.
12 15/4/2010 :-
Taluke Deputy Registrar, Cooperative Societies, Ahmednagar recommended the amalgamation of the respondent No.5 society in respondent No.4.
13 19/4/2010 :-
The respondent NO.3 District Dy. Registrar has issued the order of amalgamation by exercising powers under Section 17 of MCS Act, 1960 and rule 16 of Maharashtra Cooperative Societies Act, 1961. By said order, the respondent No.3 ordered that the respondent No.5 society stood amalgamated with the respondent No.4 society.::: Downloaded on - 23/12/2013 20:34:59 :::
{9} revised (3) lpa 206.12.odt 14 20/4/2010 :-
The District Dy. Registrar then passed consequential order for cancellation of the registration of respondent No.5 society in view of the amalgamation which took the effect immediately.
15 18th May, 2010 :-
The respondent NO.6 preferred a statutory appeal before the Respondent No.2 Divisional Joint Registrar challenging the order of amalgamation. It was registered as Appeal No. A-54/2010.
16 2nd September, 2010 :-
Respondent No.2 has passed an order of stay of the order of amalgamation in the said appeal No.A-54 of 2010.::: Downloaded on - 23/12/2013 20:34:59 :::
{10} revised (3) lpa 206.12.odt 17 14/2/2011 :-
The respondent NO.2 has decided the appeal preferred by the respondent No.6 and confirmed the order dated 19/4/2010 passed by the respondent No.3, District Dy. Registrar, Ahmednagar regarding the amalgamation.18
1/3/2011 :-
Respondent No.6 being aggrieved by order dated 14.2.2011 preferred revision application under Section 154 of the MCS Act, 1960 before the respondent No.1 State Government.
19 1/3/2011 :-
The Honourable Minister has stayed the order of amalgamation.
20 5/7/2011 Honourable Minister allowed the Revision Application and has set aside the order passed by District Deputy Registrar ordering amalgamation.
::: Downloaded on - 23/12/2013 20:34:59 :::{11} revised (3) lpa 206.12.odt 21 26/9/2011 :-
The appellants thereafter, preferred writ petition No. 7649 of 2011 in the capacity of depositors, challenging the order dated 5.7.2011 passed by the Honourable Minister.
22 21/7/2011 :-
Writ Petition No. 5456 of 2011 was filed by respondent No.4 in this court.23
1/1/2012 :-
Respondent Nos.4, 5 and 6, entered into consent terms and filed those in the High Court in W.P. No. 5456 of 2011. By those consent terms, respondent No.4 agreed to withdraw the writ petition and acquiesced and/or consented to the order passed by the Deputy Registrar, Cooperative Societies setting aside the order of amalgamation.
Under said compromise, the respondent No.4 was compensated by the respondent No.5 towards the expenses incurred by the respondent No.4 towards steps taken by it towards amalgamation.::: Downloaded on - 23/12/2013 20:35:00 :::
{12} revised (3) lpa 206.12.odt 24 Appellants claim that during the pendency of writ petition No. 5456 of 2011, the respondent No.6 has forged the resolution of the respondent No.5 society and, has taken to himself, the authority to enter into the compromise for and on behalf of the respondent No.5 society, which has lost its existence.
25 24/9/2012 The learned Single Judge of this Honourable Court was pleased to dismiss the writ petition NO. 7649 of 2011.
-:CASE OF THE APPELLANTS ON FACTS :-
4] The appellants are original writ petitioners in W.P. No. 7649 of 2011. Appellant's case apart from factual brief noted in foregoing paragraphs is as follows :-
[a] The defaulting members who had borrowed huge loans from the respondent No.5 society are out to stall the further recovery proceedings. Those ::: Downloaded on - 23/12/2013 20:35:00 ::: {13} revised (3) lpa 206.12.odt defaults were instrumental in creating hurdles in the way of amalgamation of respondent No.5 into respondent No.4 society. Respondent NO.6 also had failed to clear off his dues and loan to the tune of Rs.2,35,505/- was outstanding against him and his family members.
[b] On 21/4/2010, the resolution was passed as per the amalgamation order and accordingly the charge of affairs of respondent No.5 was handed to the Respondent No.4 society by the respondent No.5.
Subsequently the respondent No.4 society has started functioning as the entire assets and liabilities of the respondent No.5 were transferred to the respondent No.4 society. The respondent No.4 society issued a communication to the depositors of the respondent No.5 society and refunded 25% of the deposits and balance unpaid amount of the deposits were renewed by the respondent No.4 for further period.
[c] The respondent No.6 is a politically influential person and is in the good books of Ex.MLA Mr. Prasad Tanpure, who belongs to NCP party. The ::: Downloaded on - 23/12/2013 20:35:00 ::: {14} revised (3) lpa 206.12.odt respondent No.6 of Respondent No.5 had exerted great deal of pressure upon the respondent authorities to stall the process of amalgamation.
[d] The Minister of State for Cooperation, erroneously allowed the revision filed by the Respondent No.6. The Minster of State has fallen prey to the political pressure exerted by respondent NO.6 who is the close aide of Ex.MLA. The Hon'ble Minister has failed to appreciate that the procedural aspects as per Sections 17 and rule 16 of Rules of 1961 have been duly complied with and thereafter the order of amalgamation was passed. The Learned Minister has failed to appreciate that the revision at the instance of respondent No.6 was not maintainable and order of amalgamation was already put into execution.
[e] Present respondent No.4 filed Writ Petition No. 5456 of 2011 on 21/7/2011. Contesting respondents and present appellants had appeared suo motu and by caveat. This court heard the petition at the Stage of admission hearing on 26/7/2011 and interim order of status-quo as regards cancellation ::: Downloaded on - 23/12/2013 20:35:00 ::: {15} revised (3) lpa 206.12.odt of registration of Respondent No.5 was granted. It is seen that said order was in operation till disposal of the writ petition.
[f] During pendency of the writ petitions, the respondent No.5 society and respondent No.4, arrived at a compromise. Consent terms were drawn, and were tendered before this court. This court had ordered the Registrar (Judicial) to verify those.
[g] The respondent NO.6 and respondent No.4 have illegally entered into compromise, which cannot bind the Appellants and other members of respondent NO.5 society.
[h] Consent terms were tendered in writ petition filed by respondent No.4.
[i] The learned Single Judge of this court considered it appropriate to dispose of the writ petition No. 5456 of 2011 by order dated 25/1/2013 as withdrawn without taking on record the consent terms.
::: Downloaded on - 23/12/2013 20:35:00 :::{16} revised (3) lpa 206.12.odt CHALLENGE TO THE ORDER PASSED BY MINISTER 5] Present writ petitioner filed W.P. No.7649 of 2011 on 26/9/2011. This petition was heard on 5/10/2011, and the interim order was continued on 11/1/2012 and thereafter from time to time.
6] In the Writ Petition No. 7649 of 2011, the petitioner had raised and agitated the facts and ground which are noted by this court in summary of facts recorded in para. No.3 and ground which are mentioned in para. No.4.
7] The writ petition filed by present appellants, i.e. W.P. No. 7649 of 2011 was heard by the learned Single Judge of this court. Said writ petition was dismissed by order dated 23th September, 2012, which is impugned in this LPA.
8] Interest of the appellants and intervenors is common. Challenge to the impugned order as raised in the writ petition is focussed by the learned advocate for the appellants on the grounds, namely, ground nos. (V), (VI), (IX), (X) and (XI), which read ::: Downloaded on - 23/12/2013 20:35:00 ::: {17} revised (3) lpa 206.12.odt thus :-
"[v] It ought to be held that, the respondent No.6 failed to raise his objection, when the objections were invited by the respondent No.5 society during the process of amalgamation and therefore is estopped from challenging the action subsequently.
[vi] It ought to be held that, the order of amalgamation dated 19/4/2010 was put into execution and the respondent No.4 society started functioning and also the deposits to the tune of 25% were repaid to the depositors proportionately.
[ix] It ought to be held that, the revisional authority has also erred in observing that general body in the Annual General Meeting held on 14/8/2009 empowered the unauthorized Managing Committee to take decision regarding the amalgamation of society without considering the fact that General body is supreme and the resolution was taken in the special general meeting.
[x] It ought to be held that, the registration of respondent No.5 society was already cancelled and therefore same could not be revived ipso facto and as the order of amalgamation has been set aside it has resulted into chaos and feeling of insecurity amongst the depositors and members.::: Downloaded on - 23/12/2013 20:35:00 :::
{18} revised (3) lpa 206.12.odt [xi] It ought to be held that, the revisional authority has failed to appreciate the scope of revisional powers as conferred by virtue of Section 154 of the MCS Act, 1960 and thus has exceeded the jurisdiction vested in it. Moreover, the order dated 20/4/2010 remained unchallenged and no order could have been passed for quashing the order dated 14.2.2011 and 19.4.2010."
[quoted from the grounds contained in the memo of Writ Petition No. 7649 of 2011] SUPPORTING PLEA OF INTERVENORS.
9] The intervenors, who have similar interest, have agitated the points which are summarized as follows :-
[a] The will of majority must be respected.
[b] Society's interest is prime consideration which has been taken into account.
[c] Statutory provisions are followed.
[d] Consent terms are not being vetted by the learned Single Judge while allowing the respondent No.4 to withdraw the writ ::: Downloaded on - 23/12/2013 20:35:00 ::: {19} revised (3) lpa 206.12.odt petition. Therefore, the learned Single Judge while passing the impugned order, erred in believing or proceeding on an assumption that the dismissal of the writ petition filed by respondent No.4 was on the basis of "consent terms" read and recorded.
[e] The amalgamation is already implemented.
[f] Though the order of amalgamation is set aside by the Honourable Minister, the order of de-recognition is not set aside.
[g] The learned Single Judge ought to have decided the petition on its own merits on the points agitated in the petition.
[h] The petitioners being members are entitled to challenge the action and any bar such as locus standi will not come in the way of the petitioners.
[i] A society which has ceased to exist cannot resolve to resile and withdraw from amalgamation. The depositors of the ::: Downloaded on - 23/12/2013 20:35:00 ::: {20} revised (3) lpa 206.12.odt appellants are still in risk. The order passed by the Divisional Deputy Registrar is after due hearing and after following the law and it had attained finality. The Honourable Minister had no jurisdiction to entertain the petition since wishes of the society which is the highest body, are required to be honoured. Petitioner's right to organize for commercial activity under Section 91 include the right to separate and amalgamate.
PLEA OF RESPONDENT NO.6 OBJECTING/OPPOSING THIS LPA :-
10] The petition has been replied to by learned Senior Advocate Shri R.N. Dhorde. The ground which are urged are as follows :-
[a] The order of amalgamation did not operate and take effect since it was stayed during the pendency of the appeal before Joint Registrar as well as before the revisional authority i.e. the Honourable Minister and thereafter the order of status quo is in operation.::: Downloaded on - 23/12/2013 20:35:00 :::
{21} revised (3) lpa 206.12.odt [b] Though the appellant is disputing the fact that there was stay, records show that the order of stay was in operation.
[c] Though the financial condition of the respondent No.5 society had become bad, now, the society has raised funds and the dues by way of repayment of deposits of the petitioners, who are willing to accept the deposits, would be made in due course.
[d] Provisions of Section 17, which relate to amalgamation, provide for consent of "all members" and "all creditors". In the instant case, admittedly, consent of "all members" and "all creditors" was not obtained. According to the appellants, only 95 % members who were present in the meeting had consented in the general body meeting. Respondent No.5 and others had raised objection and it has been noted, considering the brute majority against them, they had walked out after raising objection.
[e] The decision of amalgamation is thus contrary to Section 17 since all members have not consented.
[f] Though the order passed by the Honourable Minister is not eloquent as regards reasons, if the points agitated by revision petitioner i.e. respondent No.5 herein, are taken ::: Downloaded on - 23/12/2013 20:35:00 ::: {22} revised (3) lpa 206.12.odt into account, which are recorded in the judgment, it will reveal that the Minister had passed order after taking into consideration the points agitated by respondent No.5 herein.
[g] That, now there are adequate resources and any depositor or member, who wants refund of money, will be immediately refunded no sooner the order of status-quo is vacated.
[h] The act of the appellants in insisting on amalgamation is not in favour of the society and the cooperative movement.
[i] Appellant's effort by way of present appeal is not bonafide and same deserves to be deprecated and deserves to be dismissed.
-:PLEA OF RESPONDENT NO.4 :-
10] Learned Advocate for respondent No.4 has addressed that considering the solemn undertaking and consent terms enter into between respondent NO.5 and respondent NO.4, now, the respondent NO.4 is not interested in amalgamation. Accepting amalgamation was, in fact, an onerous responsibility and when the respondent No.5 has been revived, there are no grounds ::: Downloaded on - 23/12/2013 20:35:00 ::: {23} revised (3) lpa 206.12.odt whatsoever to thrust upon respondent No.5 as well as the respondent No.4 the amalgamation. The law does not preclude withdrawal of respondent No.4 from the amalgamation. Whatever deposits were to be assumed and taken over by respondent NO.4, will continue with the respondent No.5 and respondent No.5 has already undertaken to satisfy the liability.
-: QUESTIONS ARISING FOR CONSIDERATION :-
11] Now, this court has to consider the present LPA on the following questions:-
[a] Whether the interest of the present appellants is prejudiced by virtue of restoration of the status in favour of respondent No.5 which existed prior to the date of amalgamation ?
[b] If, by virtue of efforts taken by respondent No.5 and their members, the said society has become viable and adequate funds have been raised, can any member insist on amalgamation ?::: Downloaded on - 23/12/2013 20:35:00 :::
{24} revised (3) lpa 206.12.odt [c] Is it necessary to substitute the order passed by the Honourable Minister in the interest of the society ?:FINDINGS :
Answer to question (a) :- Interest of appellants, intervenors and similarly situated depositors is not prejudiced due to revival of respondent No.5 and order passed by Honourable Minister setting aside amalgamation is legal and proper.
Answer to question (b) :- Respondent No.5 has shown and appellants and the intervenors have failed to show that by virtue of efforts of revival done by respondent Nos. 5 and 6, now the society continues to be viable. Appellants' interest is in closing down activity of respondent No.5 than its revival and interest of members thereof.
Answer to question (C) :- It is not necessary to set aside the order of Honourable Minister in law, justice, equity or technicalities.
::: Downloaded on - 23/12/2013 20:35:00 :::{25} revised (3) lpa 206.12.odt 12] It is seen from the facts which are admitted as well as the disputed issues, that certain things are vivid, namely :-
[1] Initially, the financial health of respondent No.5 had gone worse.
[2] It is not clear whether the creditors had applied for liquidation on the ground of erosion of net worth.
[3] It appears to be a case where the respondent No.5 had crunch of liquidity than erosion of assets.
[4] The move was made by members to amalgamate the society with other viable/sound society.
[5] The move for amalgamation was not unanimous or unopposed.
[6] Admittedly, to the appellants, 5/6 members had objected.
[7] Proviso (ii) to Section 17 (1) of the Maharashtra Cooperative Societies Act provides that, "all members" and "all creditors" have to consent for amalgamation.::: Downloaded on - 23/12/2013 20:35:00 :::
{26} revised (3) lpa 206.12.odt [8] Admittedly, all members have not consented.
[9] Exact division of votes in favour and against the motion was not ascertained.
-: OBSERVATIONS, DISCUSSION AND REASONS :-
13] It is important to note that whenever a society has to be taken in liquidation, it may possibly mean loss to the depositors suggesting that they will have to share in the proceeds after liquidation of assets.
14] Whenever members are of the considered view that either the society can be rendered viable, or assets are more than liabilities, and liquidation may be more favourable to the creditors and members, they are bound to oppose, the amalgamation on the ground of personal pecuniary loss.
15] It is clear that the appellants who are interested in amalgamation have primary AND TANGIBLE interest in their deposits.
::: Downloaded on - 23/12/2013 20:35:00 :::{27} revised (3) lpa 206.12.odt 16] It is vivid from the contents of paragraph number 2 of W.P.No. 7649 of 2011 that interest of petitioners is incapacity as depositors. Relevant averment reads thus :-
"The petitioners state that, the petitioners are the depositors who had deposited their deposits with the respondent No.5 society and subsequently said deposits have been renewed by the respondent No.4 society. The petitioners also were Members of the respondent No.5 society and are supporting the action of the amalgamation which has been taken by taking into account the larger public interest and also of the members and borrowers."
17] Interest of intervenors is concurrent to that of the appellants.
18] It is sure that upon amalgamation, the appellants will get refund of their deposits. Members of respondent shall lose their membership with respondent No.5 and shall not get it with respondent No.4 except on fresh application, which they can get even if the respondent No.5 is not amalgamated.
::: Downloaded on - 23/12/2013 20:35:00 :::{28} revised (3) lpa 206.12.odt 19] It is evident that interest of respondent No.5 is in negativity than in positivity. The appellants have not disputed that certain funds are brought in with the effort of the respondent No.5, part thereof is paid towards settlement and arrangements to pay to the depositors are already made. The appellants and intervenors have not disputed before us that equity or deposits now brought in the respondent No.5 are not adequate to render the respondent No.5 economically viable enterprise. There is no whisper to that effect in writ petition, appeal or anywhere. Moreover, the act of amalgamation is such, that it is based on record, accounts and decision as regards financial viability.
20] This court has to keep in mind that an order of amalgamation is not like an auction sale in execution of a decree of a civil court, which, upon finalization would be rendered irreversible.
21] Moreover, if a group of members who have taken efforts for revival of society, cannot be forced into amalgamation. This is so, particularly, when the ::: Downloaded on - 23/12/2013 20:35:00 ::: {29} revised (3) lpa 206.12.odt respondent No.4 has shown its readiness and willingness to dispense with the amalgamation and has rescued itself from the possible liabilities, amalgamation cannot be thrusted upon it.
22] Appellants' effort is like forcing restitution of a matrimony in whom appellants' interest is not as a spouse, child or parent even.
Appellants' role is that of creditor and their interest cannot exceed beyond their deposits.
23] It has to be believed that the interest of the appellants is in putting an end to the status of the respondent No.5 i.e. ensuring its death as a legal entity.
24] The agreement between respondent No.4 and respondent No.5 as regards amalgamation, is like any other agreement and it could be rescinded if it is not rendered irrevocable.. Moreover, its revocation when is done during the pendency of a proceeding in court, and interest of depositors is safeguarded. Moreover, the appellants have not shown any reason as to why ::: Downloaded on - 23/12/2013 20:35:00 ::: {30} revised (3) lpa 206.12.odt such revocation should be branded as defeating the provisions of the MCS Act, the existence of society and cooperative movement.
25] In the aforesaid premises all that the appellants want, is confirmation of the death warrant of respondent No.5. They are insisting on an inauspicious cause than a cause of law and of justice. This court ought not be brought into use and exploited for vindication of such impious task of soliciting and exerting for cause of death of a society.
26] The appellant's interest by way of payment of money and of intervenors as well as many other depositors is wholly protected.
27] Since the respondent No.4 society with whom, amalgamation was sought, itself has backed up, there is no cause available to the petitioner against the respondent No.4 or respondent No.5, either.
28] Therefore, the appeal is nothing but a ::: Downloaded on - 23/12/2013 20:35:00 ::: {31} revised (3) lpa 206.12.odt voracious exercise. The appellants cannot continue to espouse pursuing the amalgamation which could be the cause of respondent No.4 in which it is totally unwilling.
29] Ordinarily, locus-standing of depositors passes through the channel which assures recovery of dues and not incentives or sharing in the surplus.
Learned Advocates for the appellants as well as intervenors were fair enough to be transparent. They did not hesitate in making their stance very specific and clear that :-
"while the pecuniary interest of depositors needs to be protected, being honest citizens they are keen on upholding the prestige of law. Therefore, once amalgamation has taken effect, come what may, now the respondent No.5 should and cannot be revived, and its merger in respondent No.4 should alone be the rule of the court."
30] It is seen that the Honourable Minister's order which is impugned is cryptic than laconic.
However, when on facts and law, it is seen that the order is otherwise serving the cause and ends of ::: Downloaded on - 23/12/2013 20:35:00 ::: {32} revised (3) lpa 206.12.odt justice, the order need not be set aside on any technicalities or deficiencies.
31] It is thus vivid that appellants are out to sell a coffin than a cradle. Why should appellants adopt this course cannot be a question for consideration of this Court. All that is left to our judgment is to approve or disapprove the appellants' lis by guaging and assessing it in the balance of justice.
32] Had appellants and intervenor been espousing the lis for a cause of justice for good of larger number of depositors' pecuniary interest, it could have received applause. Appellants and intervenor seem to be interested in condolence than consolation and applause. The interest of these litigants which is vested in present lis seems to be more of such nature that it is not pecuniary. It does not appear to be social. Only interest which remains as residue, as alleged by respondent No.6 against appellants and intervenor is political.
33] There is no point in avoiding to notice that ::: Downloaded on - 23/12/2013 20:35:00 ::: {33} revised (3) lpa 206.12.odt for their political ends, litigants have been using courts as battle grounds. When access to court is available, such use cannot be stopped, however, when intents do adequately surface, such exercise which is by way of abuse needs to be curbed, deprecated and deplored.
34] We hold that rights claimed by appellants and intervenor are not in existence. Entire exercise is vexatious and totally devoid of bonafides.
Appellants and intervenors deserve to suffer an order of costs.
35] The appeal has no merit. The same is dismissed.
36] We shall hear Advocates from all sides on costs separately and shall pass suitable order separately.
[RAVINDRA V. GHUGE] [A.H. JOSHI]
JUDGE JUDGE
grt/
::: Downloaded on - 23/12/2013 20:35:00 :::