Bombay High Court
Aashish S/O. Ajayrao Pathak vs Govt. Of Maha., Through Its ... on 8 August, 2016
Bench: A.S. Chandurkar
wp5518.15.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.5518 OF 2015
PETITIONER: Ashish S/o Ajayrao Pathak, Aged -
Revisioner - Applicant Major, occupation-Business, R/o
Ori. Borrower. Panthion Society, Ashray Apartments,
Manish Nagar, Near Reliance Fresh,
Nagpur.
-VERSUS-
RESPONDENTS: 1. Government of Maharashtra, through
Ori. Respondents its Divisional Joint Registrar,
Cooperative Societies, Dhanwate
ig Chambers (Annexe), Sitabuldi,
Nagpur.
2. Assistant Registrar, Cooperative
Societies, Working under District
Deputy Registrar, Cooperative
Societies, Nagpur.
3. Nirmal Urban Cooperative Bank
Limited through its Special Recovery
Officer,
4. Niraj Hemantrao Bawankule, Aged-
Major, Occupation-Not known, Plot
No.35, Ishwar Nagar, Nagpur.
5. Shri Sagar Vishwambhar Vatile, Aged-
Major, Occupation-Not known, R/o
305, R/o Ratan Heights, Besa Road,
Ghogli, Nagpur.
Shri S. K. Tambde, Advocate for the petitioner.
Shri A. M. Kadukar, Asstt. Government Pleader for respondent nos.1 & 2.
Shri A. D. Borkute, Advocate for the respondent no.3.
----------------------------------------------------------------------------------------------------
CORAM: A.S. CHANDURKAR, J.
DATED: 08
th AUGUST, 2016.
ORAL JUDGMENT :
wp5518.15.odt 2/6
1. Rule. Heard finally with the consent of the learned
Counsel for the parties.
2. The petitioner is a borrower who had availed loan
from the respondent no.3 - Cooperative Bank. On the amount of
loan not being repaid, the Bank initiated proceedings under
Section 101 of the Maharashtra Cooperative Societies Act, 1960
(for short, the said Act) for issuance of recovery certificate. On 3-9-
2015, a recovery certificate for the amount of Rs.11,21,555/-
came to be issued. Thereafter on 7-9-2015 the Special Recovery
Officer issued a notice to the petitioner and the respondent nos.4
& 5 who were the guarantors to repay Rs.11,60,120/-. Being
aggrieved, the petitioner filed a revision application under Section
154 of the said Act. However, as 50% of the requisite amount in
terms of Section 154(2A) of the said Act were not deposited, the
proceedings were not entertained.
3. Shri S. K. Tambde, the learned Counsel for the
petitioner submitted that no notice was received by the petitioner
in the proceedings under Section 101 of the said Act before the
Assistant Registrar due to which he could not contest the same.
According to him, in the reply filed on behalf of the Assistant
Registrar, it has been stated that on 31-7-2015, a notice was issued
to the petitioner which was duly served. He submitted that no such
wp5518.15.odt 3/6
notice was received by the petitioner and there is no reference to
any such notice in the order dated 3-9-2015. He referred to the
provisions of Rule 86A of the Maharashtra Cooperative Societies
Rules, 1961 and submitted that the necessary procedure was not
followed. He placed reliance upon the judgment of the Division
Bench in Sundeep Polymers Pvt. Ltd. Vs. State of Maharashtra 2010
(6) ALL MR 550. He, therefore, submitted that the proceedings
deserve to be considered afresh by the Assistant Registrar.
ig Shri A. D. Borkute, the learned Counsel for the
respondent no.3 supported the impugned order and submitted that
the proceedings were not contested by the petitioner before the
Assistant Registrar. Shri A. M. Kadukar, the learned Assistant
Government Pleader for respondent nos.1 and 2 relied upon the
affidavit-in-reply and submitted that the recovery certificate had
been issued in accordance with law.
5. Perusal of the documents filed on record indicate that
on 18-5-2015, the petitioner had moved an application seeking
time to file reply to the proceedings. In the said application, it was
submitted that the petitioner had not received any documents
whatsoever alongwith the notice. In the impugned order, no
reference can be found to the notice dated 31-7-2015 which
according to the respondent no.2 was issued to the petitioner. As
wp5518.15.odt 4/6
observed by the Division Bench in Sandeep Polymers Pvt. Ltd.
(supra), the mandatory procedure as prescribed under Rules 86A
to 86F of the said Rules have to be duly followed.
6. By order dated 5-10-2015, the petitioner was directed
to deposit an amount of Rs.6,00,000/- in this Court. This amount
has been so deposited by the petitioner. In the aforesaid facts and
considering the decision of the Division Bench referred to herein
above, an opportunity deserves to be granted to the petitioner to
contest the proceedings before the Assistant Registrar. The same
would facilitate adjudication of the rights of the respective parties.
7. in view of aforesaid, the following order is passed:
(1) The Recovery Certificate dated 3-9-2015 alongwith
notice dated 7-9-2015 are quashed and set aside.
(2) The proceedings under Section 101 of the said Act are
restored before the Assistant Registrar for adjudication on merits.
The petitioner shall appear before the Assistant Registrar on
24-8-2016. The petitioner shall not seek unnecessary
adjournments in the proceedings.
(3) The amount of Rs.6,00,000/- alongwith interest
accrued thereon shall be paid to the respondent no.3. This
amount shall be invested by the respondent no.3 in a separate
account. In case if it is found that no recovery certificate is liable to
wp5518.15.odt 5/6
be issued or a recovery certificate is issued for a lesser amount, the
balance amount shall be repaid to the petitioner with 9% simple
interest from the date this amount is credited with the respondent
No.3. This arrangement is without prejudice to the rights of
parties and the proceedings under Section 101 of the said Act shall
be decided without being influenced by this arrangement.
(4) Rule is made absolute in aforesaid terms. No costs.
//MULEY//
JUDGE
wp5518.15.odt 6/6
CERTIFICATE
"I certify that this Judgment/Order uploaded is a true and
correct copy of original signed Judgment/Order."
Uploaded by : Sanjay B. Muley, Uploaded on :12-08-2016
Personal Assistant.
