Sau. Vasundhara Ashokrao Patil vs Rajaram Bapu Sahakari Bank Ltd. ...
2003 Latest Caselaw 608 Bom

JUDGMENT

1. The sole question that falls for consideration in this petition under Article 226 and 227 is whether a dispute would lie under Section 91 of the Maharashtra Cooperative Societies Act, 1960, hereinafter referred to as 'the Act', challenging a recovery certificate granted under Section 101 of the said Act. The facts and circumstances giving rise to this petition are few and may be shortly stated. The petitioner Nos. 1 to 3 borrowed loan from the 1st respondent Bank for which petitioner Nos. 4 and 5 and respondent Nos. 3 and 4 were surities. The petitioner Nos. 1 to 3 made defaults and, therefore, the Bank approached the Deputy Registrar, Cooperative Societies, Taluka Walva, District Sangli for issuing Recovery Certificate under Section 101 of the Act. It appears that three separate applications were filed by the Bank. The borrowers as well as surities were joined as parties. The petitioners failed to appear in spite of notice and consequently ex parte orders were passed whereby recovery certificates were issued in favour of the Bank. The petitioners and respondent Nos. 3 and 4 then filed three separate disputes under Section 91 of the said Act being Nos. 259, 289 and 290 before the Cooperative Court challenging certificates under Section 101 on various grounds. The Cooperative Court dismissed the disputes as not maintainable. Against the order of the Cooperative Court three appeals were filed being Appeal Nos. 120, 121 and 122 of 2002. The Cooperative Appellate Court dismissed the appeals by a common order dated 21st December, 2002.

2. Dr. Choudhary, learned counsel for the petitioners strenuously contended that the provisions of Section 101 of the Act provide for summary remedy whereas remedy under Section 91 is substantive remedy and since the Competent Authority under Section 101 has adopted only summary procedure, a remedy provided under Section 91 can be invoked by the parties. He contends that the learned single Judge of this Court (Kapadia J.) in W.P. No. 2542 of 1994 decided on 5th September, 1994 has laid down that where the amount is sought to be recovered as arrears of land revenue pursuant to the certificate issued by the Registrar under Section 101, a dispute would lie before the Cooperative Court under Section 91 of the Act.

3. We shall first take notice of the relevant provisions of the Act. Proviso to Section 91 which is material for the purpose of this petition reads as follows:

"Provided that, an industrial dispute as defined in Clause (k) of Section 2 of the Industrial Disputes Act, 1947, or rejection of nomination paper at the election to a committee of any society other than a notified society under Section 73-IC or a society specified by or under Section 73-G, or refusal of admission to membership by a society to any person qualified under therefore, ( or any proceeding for the recovery of the amount of as arrears of land revenue on a certificate granted by the Registrar under Sub-section (1) or (2) of Section 101 or Sub-section (1) or (2) of Section 101 or Sub-section (1) of Section 137 or the recovery proceeding of the Registrar or any officer subordinate to him or an officer of society notified by the State Government, who is empowered by the Registrar under Sub-section (1) of Section 156 shall not be deemed to be a dispute for the purpose of this section. "

(Emphasis supplied)

4. Section 101 interalia provides as under:

101(1). Notwithstanding anything contained in Sections 91, 93 and 98 on an application made by a resource society undertaking the financial of crop and seasonal finance as defined under the Bombay Agricultural Debtors Relief Act, 1947 (or advancing loans for other agricultural purposes repayable during a period of not less than eighteen months and not more than five years) for the recovery of arrears of any sum advanced by it to any of its members on account of the financing of crop or seasonal finance (or for other agricultural purposes as aforesaid) or by a crop-protection society for the recovery of the arrears of initial cost or of any contribution for obtaining services required for crop-protection which may be due from its members or other owners of lands included in proposal (who may have refused to become members) or by a lift irrigation society for the recovery of arrears of any subscription due from its members for obtaining services required for providing water supply to them (or by a Taluka or Block level village artisans multi-purpose society advancing loans and arranging or cash credit facilities or artisans or the recovery of arrears of its dues) (or by a cooperative housing society for the recovery of arrears of its dues, or by a cooperative dairy society advancing loans for the recovery of arrears of its dues, or by a co-operative housing society for the recovery of its dues, or by salary earners cooperative society for the recovery of arrears of its or by a fisheries cooperative society for the recovery of arrears of its dues (or by any such society, class of societies, as the State Government may, from time to time, notify in the Official Gazette, for the recovery of any sum advanced to, or any subscription or any other amount due from, the members of the society or class of societies so notified) and on the society concerned furnishing a statement of account in respect of the arrears, the Registrar may, after making such inquiries, as he deems fit, grant a certificate for the recovery of the amount stated therein to be due as arrears.

(2) Where the Registrar is satisfied that (the concerned society has failed to take action under the foregoing sub-section in respect of any amount due as arrears), the Registrar may, of his motion, after making such inquiries, as he deems fit, grant a certificate for the recovery of the amount stated therein to be due as arrears, and such a certificate shall be deemed to have been issued as if on an application made by the society concerned.

(3) A certificate granted by the Registrar under Sub-section (1) or (2) shall be final and a conclusive proof of the arrears stated to be due therein and the same shall be recoverable according to the law for the time being in force for the recovery of land revenue.

(4) .....

5. Section 101 was inserted in the statute book by Maharashtra Act 27 of 1969. Intention of the legislature while enacting the provisions of Section 101 was to provide a speedy remedy to class of societies referred to in the section against its defaulting members. The section provides summary method of recovery of loan, seasonal finance, subscription etc. of certain types of societies from their members upon the societies furnishing statement of account in respect of the arrears to the Registrar. Sub-section (1) provides that the Registrar may make enquiry in respect thereof and then issue certificate for recovery of arrears. Sub-section (2) empowers the Registrar to take action suo moto if the society fails to take action under Sub-section (1). Sub-section (3) provides that the amount of arrears stated in the certificate is final and conclusive proof of the arrears stated therein and the same is recoverable, according to law, for the time being in force, for recovery of land revenue.

6. The opening words of Section 101 "Notwithstanding anything contained in Sections 91, 93 and 98" gives overriding effect to the said section. Therefore, for recovery of loans, subscription, seasonal finance etc. it is not necessary for the society to refer the dispute to the Coop. Court under Section 91. The plain reading of Section 101 reveals that a special class of societies is carved out who can apply to the competent authority under Section 101 and those societies alone can obtain recovery certificate in accordance with the said section. The provisions of Section 91 and 101 are separate and distinct and act in different spheres. By virtue of Section 101 a summary and speedy remedy has been provided to certain types of societies. Further it is to be noted that by virtue of Section 101 finality is attached to the certificate granted by the Registrar under this section. It is, therefore, clear that the certificate issued under Section 101 cannot be challenged under Section 91. Only remedy of the party aggrieved is to file revision application under Section 154 of the Maharashtra Cooperative Societies Act. Section 101 is a speedy remedy to recover the amount and when statute gives finality to the action or order it can be challenged only in a manner prescribed by statute. Therefore, a dispute under Section 91 would be completely barred. We may mention that two learned single Judges of this Court have taken a view that certificate under Section 101 is final and conclusive and the dispute to challenge the certificate cannot be filed under Section 91. (See Shri Kedarling Vikas Seva Scy. Ltd. v. Dinkar Bhimrao Raut and Ors., 2003 (1) ALL MR 66 and Bhusawal People's Bank Ltd. v. Vijay Ramdas Rane and Ors. (Writ Petition No. 2277 of 2001 decided by Naik J. on 30th/31st January, 2002.

7. Dr. Choudhary also placed reliance upon the decision of Rebello J. in The Sangli Sahakari Bank Limited v. The Divisional Joint Registrar, 2002 (3) ALL MR 15. In that case the question before the learned Judge was whether a revision application under Section 154 would lie against an order passed by the Recovery Officer under Rule 107 of the Cooperative Societies Rules. There the petitioner bank had obtained a certificate under Section 101 and in execution thereof Recovery Officer attached the premises. Respondents filed objection with the Recovery Officer contending that they have acquired right, title and interest in the premises. The Recovery Officer rejected the contention. Against that order the revision was filed before the State Government. The revisional authority held that attachment of the premises was illegal and consequently set aside the sale. The argument before the learned Judge was that objector has got right to file a civil suit as per provisions of Rule 11(c) and, therefore, revision is not maintainable. The learned Judge held that the revision is perfectly maintainable and if party fails in revision it can resort to a remedy of a civil suit. The said decision has no application to the issue involved in this case.

8. The decision rendered by Kapadia J. was at the admission stage and it appears that the learned Judge's attention was not drawn to non obstante clause contained in Section 101 and finality attached to the certificate granted under the said section. Before Kapadia J. certificate under Section 101 was challenged by way of writ petition under Articles 226 and 227. The Court while summarily dismissing the petition observed that the petitioner has got remedy under Section 91. The view taken by the learned Judge is obviously incorrect and cannot be accepted.

7. With the above observations, petition is dismissed. No order as to costs.

Parties to act on an ordinary copy of this order duly authenticated as true copy of the Sheristedar of this Court.