Bombay High Court
The Maharashtra Nagri Sahakari ... vs Ravindra on 29 October, 2010
Bench: S.B. Deshmukh, Shrihari P. Davare
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
LETTERS PATENT APPEAL NO.209 OF 2009
IN
WRIT PETITION NO. 2957 OF 2009
01. The Maharashtra Nagri Sahakari Bank
Limited, Latur, Market Yard Branch
through its Branch Manager, Head
Office, Kavva Road, Near Shivneri
Gate, Latur, Tq. and District Latur.
02. The Special Recovery and Sales Officer,
The Maharashtra Nagri Sahakari Bank
Ltd.,Latur Market Yard Branch,through
its Branch Manager, Head Office, Kavva
Road, Near Shivneri Gate, Latur, Petitioners/
Taluka and District Beed. Orig.Resps.
Nos. 4 & 5.
versus
01. Ravindra s/o Prabhakar Kulkarni,
age 43 years, occupation business,
r/of "Shakambhari" Datta Nagar,
Ausa Road, Taluka and Dist.Latur.
02. Shailaja w/o Prabhakar Kulkarni,
age 68 years, occup. household,
r/of as above.
03. The State of Maharashtra,
through its Principal Secretary,
Department of Cooperation,
M.S., Mantralaya, Mumbai-32/
04. The Divisional Joint Registrar,
Cooperative Societies, Latur.
05. The Assistant Registrar, Respondents/Nos.
Cooperative Societies, 1 & 2 ori.petnrs
Taluka Latur, Dist.Latur. and Nos. 3 to 5
are ori.Resp.Nos
1 to 3.
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Shri Sachin Deshmukh, Advocate for the appellants.
Respondent Nos. 1 and 2 absent, although served.
Shri V.B.Ghatge, A.G.P. for Respondent Nos. 3 to 5.
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2
Coram: S.B.Deshmukh and Shrihari P.Davare, JJ.
Judgment reserved on : 26th October 2010.
Judgment pronounced on : 29th October 2010
JUDGMENT (Per: Shrihari P. Davare, J.)
01. Admit. By consent of learned counsel for the
parties, Letters Patent Appeal is taken up for final
hearing.
02. This Letters Patent Appeal is preferred by
the appellants (original Respondent Nos.4 and 5 in
Writ Petition No.2957 of 2009), challenging the order
dated 8.9.2009 passed by the learned Single Judge of
this Court in the said writ petition, granting Rule and
stay to execution, implementation and operation of the
recovery certificate dated 21.2.2009 issued by the
Assistant Registrar, Co-operative Societies under
Section 101 of the Maharashtra Cooperative Societies
Act, 1960 ("for brevity, hereinafter referred as the
"Cooperative Act"), under Clause XV of the Letters
Patent.
03. The facts in nutshell are that the present
appellant No.1 is a cooperative bank i.e. financial
institution and appellant No.2 is its Special Recovery
and Sales Officer. Respondent No.1 and 2 herein are
original writ petitioners. Respondent No.1 herein
availed overdraft facility from appellant No.1, on
25.7.1997. However, in spite of repeated requests and
reminders, he deliberately avoided to make repayment
thereof and hence, the appellants filed dispute against
him before the cooperative court, for recovery of the
amount, but the said proceedings were withdrawn by the
appellants with a view to initiate proceedings under
Section 101 of the Cooperative Act.
04. Accordingly, the appellants herein initiated
proceedings under Section 101 of the Co-operative Act
against present respondent No.1, since he ignored to
make repayment of the overdraft amount due, in spite of
repeated requests and reminders. Moreover, notice
issued by the Assistant Registrar was also avoided by
respondent No.1 herein and hence, paper publication
came to be issued to make him aware about the
proceedings initiated by appellants against him.
However, respondent No.1 avoided to participate in the
said recovery proceedings in spite of due service of
notice on him and hence, certificate under Section 101
of the Co-operative Act came to be issued against
him for an amount of Rs.9,45,548/=, on 21.2.2009.
Pursuant to the said recovery certificate, the
appellants herein issued final demand notice to present
Respondent No.1 and 2 under Rule 107 of the Maharashtra
Cooperative Societies Rules, on 24.4.2009. Moreover,
Resp.Nos.1 and 2 herein were also served with the
notice dated ig 25.4.2009 issued by the present
appellants.
05. However, in stead of making repayment as per
the recovery certificate dated 21.2.2009, Respondent
Nos.1 and 2 herein filed Writ Petition No.2957 of 2009
before this court and assailed the said recovery
certificate, as well as demand notices dated 24.4.2009
and 25.4.2009, therein. The appellants herein appeared
in the said writ petition and filed the affidavit in
Reply opposing the same vehemently, contending that the
said petition was not maintainable and same deserves to
be dismissed, in view of availability of alternate
efficacious statutory remedy to the petitioners i.e.
present respondents Nos.1 and 2 by filing appeal or
revision under Section 154 (1) of the Co-operative Act.
However, the learned Single Judge, by order dated
8.9.2009, issued Rule in the said writ petition and
also granted interim relief in favour of the
petitioners i.e. present respondent Nos.1 and 2, in
terms of prayer clauses (H) and (I) thereof, and
thereby stayed implementation, operation and execution
of the notice dated 25.4.2009, as well as directed that
no coercive action
ig be taken against the present
respondent Nos.1 and 2, in pursuance of the recovery
certificate dated 21.2.2009. Being aggrieved and
dissatisfied by the said order dated 8.9.2009 passed by
the learned Single Judge in the said writ petition No.
2957 of 2009, original Respondents No.4 and 5 i.e.
present Appellants have preferred present Letters
Patent Appeal, assailing the impugned order dated
8.9.2009, and prayed for quashment thereof.
06. It is the matter of record that the notices
of present Letters Patent Appeal have been served upon
Respondent Nos.1 and 2 herein (original petitioners),
but they failed to appear and chose not to contest the
appeal, whereas learned Assistant Govt.Pleader appeared
for Respondent Nos. 3 to 5 (Original Resp. Nos.1 to 3),
by waiving service of notice of the Letters Patent
Appeal, and advanced submissions on their behalf.
07. Heard learned counsel for respective parties.
Mr. Sachin Deshmukh, learned Counsel for the
appellants, canvassed that the learned Single Judge,
while passing the impugned order dated 8.9.2009, ought
to have taken into consideration that the alternate
efficacious statutory remedy of appeal or revision was
available to the petitioners i.e. present respondent
Nos.1 and 2, under Section 154(1) of the Co-operative
Act,but without resorting to the said alternate remedy,
respondent Nos.1 and 2 herein had filed writ petition
No.2957/2009, with a view to avoid to deposit/payment
of 50% amount due under the recovery certificate as
per Sec.154(2A) of Cooperative Societies Act,therefore,
the learned Single Judge should not have entertained
the said writ petition and should not have granted
interim relief, therein. To substantiate the said
contention, learned Counsel for the appellants relied upon
the case decided by the Division Bench of this Court, i.e.
Kausalya Sampt vs.Vasant Sahakari Bank Ltd. reported in 2004
(6) Bom.C.R. 651, in paragraph 14 whereof, the learned
Division Bench upheld the validity of Sub-section (2-A)
of Section 154 of the Co-operative Act, which reads
thus:
"14. In the light of the consistent view of the
Honourable Supreme Court of India interpreting a
similar provision in large number of statutes which
are in para materia to the provisions of sub-section
(2-A) of section 154 of the Maharashtra Co-operative
Societies Act, 1960, we are of the view that the
provisions of sub-section (2-A) of section 154 are
constitutionally valid and are not violative of the
petitioner's fundamental rights under Articles 14 and
19 of the Constitution of India. We are also of the
opinion that the case of Mardia Chemicals Ltd. and
others (supra) has no application to the facts of the
present case. The aid case was not appellate or
revisional proceedings but were original proceedings
and, therefore, imposition of a condition of deposit
of dues was held to be impermissible in law. The
present case is not of a original proceeding and,
therefore, we are of the view that the judgment in the
case of Mardia Chemicals Ltd. and others, do not apply
herein. We therefore uphold the validity of said sub-
section (2-A) of section 154 of the Maharashtra Co-
operative Societies Act, 1960)."
08. Mr.Sachin Deshmukh, learned counsel for the
appellants, also relied upon the case of Arun Khanjire
vs. Ichalkaranji Urban Coop. Bank Ltd., (2009) 2 SCC
187, wherein, in para 19, it is held that,
"Admittedly, Section 154 (1) of the above Act
confers revisionary powers on the State Government
and also the Registrar of Cooperative Societies
under the Act. It also empowers the State Government
or the Registrar to satisfy themselves as to the
legality or the propriety of any such decision or
order and to modify, annul or reverse the same after
giving the person affected thereby an opportunity of
being heard either suo motu or on an application."
09. Accordingly, learned counsel for the
appellants urged that the alternate statutory remedy
was available to the respondents herein under Section
154 (1) of the Co-operative Act and, therefore, writ
petition No.2957 of 2007 was not maintainable and,
consequently, the impugned order dated 8.9.2009 passed
therein granting interim relief by the learned Single
Judge deserves to be quashed and set aside.
10. Besides that, the learned Counsel for the
appellants also invited our attention to the order
passed on 28.7.2009 by the same learned Single Judge
in another Writ Petition No.4905 of 2009 (Jaiprakash
versus The Jalgaon district Medicine Dealers' Urban
Co-operative Credit Society Ltd.) in similar
circumstances, and a copy whereof is annexed at Exh.A
(page 47) of present Letters Patent Appeal, wherein the
same learned Single Judge has referred to the aforesaid
judgment of the Hon'ble Supreme Court in the case of
Arun B. Khanjire (supra) and observed that since the
alternate remedy under Section 154 of the Co-operative
Act, 1960, is available to the petitioner therein, the
said petition was not maintainable and consequently,
dismissed the said petition, but pertinently, the same
learned Single Judge has taken a different view, while
passing the impugned order dated 8.9.2009 in Writ
Petition No.2957 of 2009 and issued Rule therein and
granted interim relief against the present appellants,
which is not in consonance with the judicial
discipline. The learned counsel for the appellants,
therefore, urged that the impugned order dated 8.9.2009
passed by the learned Single Judge in Writ Petition No.
2957 of 2009, deserves to be quashed and set aside.
11. As mentioned hereinabove, Respondent Nos.1
and 2 herein remained absent, although they were duly
served with the proceedings of present Letters Patent
Appeal. Shri V.B.Ghatge, learned A.G.P. for Respondent
Nos.3 to 5 submitted to the orders of the court.
12. We have perused the contents of present
Letters Patent Appeal, its annexures and the impugned
order dated 8.9.2009 passed by the learned Single Judge
in Writ Petition No.2957 of 2009, and also heard
submissions advanced by learned counsel for the
appellants and learned A.G.P. for Respondent Nos.3 to
5, anxiously.
13. At the outset, the crux of the matter is that
although alternate statutory remedy was available with
Respondent Nos. 1 and 2 herein, under Section 154 (1)
of the Cooperative Act, of filing appeal or revision
before the State Government, as held by the Hon'ble
Supreme Court in the case of Arun Khanjire (supra), it
appears that without resorting to the said alternate
statutory remedy, Resp.Nos.1 and 2 herein have filed
writ petition No.2957 of 2009 under Article 227 of the
Constitution of India, and obtained interim relief by
way of impugned order dated 8.9.2009, which appears to
be with a view to avoid deposit/payment of 50% of the
amount due under the recovery certificate obtained by
the appellants herein u/Sec.101 of the Cooperative Act,
against present Resp. Nos. 1 and 2, in accordance with
Sec.154(2A) of Co-operative Societies Act.
14. Moreover, constitutional validity of Section
154 (2-A) of the Maharashtra Cooperative Societies Act,
1960, has been upheld by the Division Bench of this
Court by judgment delivered in the case of Kausalya
Sampat vs. Vasant Sahakari Bank (supra).
15. Apart from that, as pointed out by learned
counsel for the appellants, the learned Single Judge,
while dealing with Writ Petition No.4909 of 2009 and
passing the order dated 28.7.2009 therein, which is at
Exh.A (page 47) of the present appeal, has relied upon
above referred judgment of the Hon'ble Supreme Court in
the case of Arun Khanjire (supra), and held that
alternate remedy under Section 154 of the Maharashtra
Cooperative Societies Act, was available to the petitioner
therein and hence, came to the conclusion that the said
writ petition (WP 4905 of 2009) was not maintainable and
dismissed the same, but while dealing with present
Writ Petition No. 2957 of 2009 and passing the
impugned order dated 8.9.2009 therein, it appears
that the same learned Single Judge issued Rule and also
granted interim relief in favour of the petitioners
(present Respondent Nos.1 and 2), although the
alternate statutory remedy was available to the said
petitioners, under Section 154(1) of the Maharashtra
Cooperative Societies Act, of preferring revision
before the State Government, which was not opted for by
them, which might be with ulterior motive to avoid the
deposit/payment igof 50% of the amount due under the
recovery certificate obtained by the present
appellants, in accordance with Sec.154(2A) of the Co-
operative Societies Act.
16. Under the circumstances, we are of the
considered view that the alternate statutory remedy was
available to Resps. No.1 and 2 herein, under Section
154(1) of the Cooperative Societies Act,of preferring
revision before the State Government, and therefore,
filing of writ petition No.2957/2009 under Article 227
of the Constitution of India, by them was unwarranted,
and consequently, the impugned order dated 8.9.2009
passed by learned Single Judge therein granting interim
relief, deserves to be quashed and set aside.
17. Accordingly, we are inclined to accept the
submissions advanced by learned counsel for the
appellants herein, and having comprehensive view of the
matter, we have no hesitation to come to the conclusion
that the present Letters Patent Appeal deserves to be
allowed.
18. In the result, present Letters Patent Appeal
succeeds and accordingly, same is allowed, and the
impugned order dated 8.9.2009 passed by the learned
Single Judge in Writ Petition No.2957 of 2009 stands
quashed and set aside. No order as to costs.
sd/- sd/-
(SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.)
pnd/lpa209.09
