Yashomandir Sahakari Patpedhi vs Ashok Raj Enterprises
2012 Latest Caselaw 453 Bom

                                           1                                   wp2166.98.sxw

              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    CIVIL APPELLATE JURISDICTION.




                                                                                  
                             Writ Petition No. 2166 of 1998




                                                          
    Yashomandir Sahakari Patpedhi
    Maryadit,
    a co-operative society




                                                         
    r/office at 307, Mahavir Apartments,
    Pant Nagar, Ghatkopar(E),
    Mumbai 400075.                                                     ...Petitioners
           v/s.
    Ashok Raj Enterprises




                                              
    through Mr. Ashok K. Singh
    12/336, Shankar Sadan Co-operative
                               
    Housing Society Ltd., Pant Nagar,
    Ghatkopar (East), Mumbai 400075.
                              
    2. Mr.Kalpanath Rajaram Singh
    12/336, Shankar Sadan Co-operative
    Housing Society Ltd., Pant Nagar,
    Ghatkopar (East), Mumbai 400075.
           


    3. Nirmala Mahendrapratap Singh
        



    12/336, Shankar Sadan Co-operative
    Housing Society Ltd., Pant Nagar,
    Ghatkopar (East), Mumbai 400075.                           ...Respondents





    Mr. Rahul Rao i/b. Ms. U.M. Jhaveri for the petitioner.





                                           CORAM: B.P.DHARMADHIKARI, J.
                                                  6th December, 2012.


    JUDGMENT:

Matter was called out in first half and as nobody appeared for respondents, it was passed over. It is called out again.

2 wp2166.98.sxw

2. Challenge in this petition filed under Article 226 and 227 of Constitution

of India is to the judgment and order dated 20 th February, 1998 passed by Co- operative Appellate Court Bombay in Appeal No. 466/1997 remanding matter

back to Co-operative Court to work out the exact liability of respondent no.1 borrower. Respondents 2 and 3 are his Guarantors.

3. Learned Counsel for petitioner has invited attention to the dispute under Section 91 of Maharashtra Co-operative Societies Act as filed by the petitioner

Credit Co-operative Society for recovery of amount of Rs. 1,30,212.85 due on 31st December, 1990. Attention is also invited to the judgment of Co-operative

Court dated 11th November, 1993 wherein it is recorded that respondent no.1

remained present, accepted liability, did not dispute quantum and sought installment. Accordingly, Co-operative Court permitted petitioner Bank to recover above mentioned amount with future interest upon it calculated at 18%

from 1st January, 1991 and granted installment of Rs. 4000/- per month + additional monthly component towards interest amount. The payment of

installment was to commence from 10th December, 1993.

4. It is further pointed out that this judgment and order of Co-operative Court passed upon admission was then questioned almost after four years in Appeal No. 466/1997 before Co-operative Appellate Court at Bombay under

Section 97 and in that appeal on 16th October, 1997 exparte stay was granted. The petitioner was advised to move an application before President of State Co- operative Appellate Court seeking transfer of matter. Accordingly, Transfer Application No. 71/1997 was filed and during its hearing the respondent no.1 agreed to repay entire amount if petitioner gave true and correct statement of accounts. In view of this as he gave away right to repay the amounts in installments and entire amount was agreed to be repaid, the petitioners agreed

3 wp2166.98.sxw

and President accordingly appointed one Advocate for looking into the accounts of petitioner-society and to work out the liability of respondent no.1.

Court Commissioner then determined that liability at Rs. 2,58,011/- as on 20 th November, 1997 and submitted his report on 18th December, 1997.

5. The matter, thereafter, was placed before very same Member of Co-

operative Appellate Court. Before that Court respondent no.1 produced a statement of accounts prepared by a C.A. and the Appellate Court then noted that certain payments made by respondent no.1 were not accounted for by

Court Commissioner. The Co-operative Appellate Court found it difficult to reconcile the position and, therefore, remanded matter back to Co-operative

Court for taking decision within period of three months by setting aside the judgment and order dated 11th November, 1993.

6. The petitioners also state that as a part of very same judgment, the Co-

operative Appellate Court in absence of proper justification and without recording proper reasons has condoned huge delay of four years in entertaining

the appeal. Learned Counsel submits that delay needed to be condoned by passing the separate order first and thereafter only the Co-operative Appellate

Court could have entertained appeal on merits. The exercise as undertaken is, therefore, unsustainable.

7. It is urged that as delay has not been properly explained and this Court has already made some observations in that respect after hearing both sides on 4th May, 1998, the order of remand should be quashed and set aside. Appeal filed after four years should be dismissed and petitioner should be permitted to proceed further with recovery as per judgment of Co-operative Court dated 11 th November, 1993.

4 wp2166.98.sxw

8. Perusal of order dated 4th May, 1998 passed by this Court shows that after hearing both sides this Court has recorded a prima-facie finding that order

dated 20th February, 1998 passed by Member, Maharashtra State Co-operative Appellate Court, Mumbai is wrong. It has noted that judgment and order dated

11th November, 1993 was questioned after four years and there was no cogent and convincing reason for condoning that delay. It has also noted that at the

instance of respondents Court Commissioner was appointed to take accounts and hence it was not necessary for the learned Member of Co-operative Appellate Court to attempt to reconcile the accounts again. In view of these

findings the said judgment dated 20th February, 1998 impugned in present petition came to be stayed.

9. Learned Counsel for petitioner upon instructions has stated that as on date the amount in excess of Rs. 4,88,592/- is recoverable from respondent no.1 and though proceedings are going on, he is avoiding the same by putting

in some hurdle.

10. The perusal of impugned judgment dated 20th February, 1998 clearly shows that after recording findings on merits, the Co-operative Appellate Court

has approached the question of condonation of delay. The delay has been condoned without recording relevant events to gather why period of four years was required by respondent no.1. His mere contention that he approached

Society on many times for getting correct figure of outstanding amount and alleged non co-operation by Society has been accepted. His statement that he did not repay the balance amount has also been accepted. The Co-operative Appellate Court has overlooked the fact that the judgment of Co-operative Court dated 11th November, 1993 impugned in appeal before it was practically on admission of liability and as such the Co-operative Court had asked him to pay the amount in monthly installments. In view of this judgment and

5 wp2166.98.sxw

direction there was no question of the said liability being questioned thereafter by him. The story that he approached Co-operative Society, sought details etc.,

therefore, could not have been accepted lightly. The law on the point of condonation of delay is well settled. Unless and until delay is first condoned,

the Court does not get jurisdiction to embark upon enquiry on merits of the matter. Here it appears that the Co-operative Appellate Court has first

considered the merits of the controversy and then proceeded to condone the delay. This exercise could not have been undertaken simultaneously. Reference can be made to judgment of this Court in case of M.M. College of

Science v/s. R.T. Borkar; 1997 II Mh.LJ 168 and in the case of National Building Construction v/s. Regional Labour Commissioner; 2006 I Mh.L.J.

669.

11. Moreover, the Co-operative Appellate Court was supposed to examine the challenge to the judgment and order dated 11 th November, 1993 delivered

by Co-operative Court. The appointment of Court Commissioner and accounts settled by him was in pursuance to orders passed in an application moved for

transfer of present petitioners. The validity or correctness thereof was not the issue involved in Co-operative Appeal. Judgment of Co-operative Court

delivered on admission could not have been displaced due to developments in transfer application.

12. Thus, the Co-operative Appellate Court could not have given any importance to the report of Court Commissioner or to then objection raised by respondent no.1 to the same. It ought to have restricted its consideration to the challenge to validity of judgment and award dated 11 th November, 1993. The Co-operative Appellate Court has not even touched that aspect. In this situation, I find the impugned judgment dated 20 th February, 1998 unsustainable. Same is accordingly quashed and set aside.

                                          6                                  wp2166.98.sxw




    13.     Appeal No. 466/1997 is dismissed.    Judgment and award dated 11th




                                                                               

November, 1993 passed by Co-operative Court, Bombay in Dispute No. CC- 1/71/91 is hereby restored. Rule made absolute accordingly. No costs.

(B.P. DHARMADHIKARI, J)

L.S.Panjwani, P.A.