Premraj S/O Gangaram Kanojiya vs Deputy Registrar, Co-Operative ...
2016 Latest Caselaw 5365 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                                 
                            NAGPUR BENCH, NAGPUR.

                              WRIT PETITION NO. 2915 OF 2015




                                                                   
    Premraj s/o Gangaram Kanojiya,
    aged about 62 years, carrying on
    business in the Name and Style of
    M/s. Sunlight Power Dry Cleaners,




                                                                  
    Kanojiya Sadan, Laxminagar, 
    Gorakshan Road, Akola                                             ... PETITIONER

                                               VERSUS




                                               
    1. Deputy Registrar, Co-operative
         Societies, Tahsil Akola, Gangadhar
                             
         Plots, Station Road, Akola.

    2. The Agrasen Nagari Sahakari Bank
                            
         Limited, Main Branch, Gandhi Chowk,
         Akola, through Special Recovery and
         Sales Officer.

    3. Dinesh Premji Kanojiya, aged about
      

         36 years, Laxminagar, Gorakshan
         Road, Akola.
   



    4. Vijay s/o Jankiram Balode, aged 
         about 52 years, Balode Layout, 
         Hingna Road, Kaulkhed, District
         Akola.                                                     ... RESPONDENTS





                                                    ....

    Shri B.N. Mohta, Advocate for the petitioner.
    Smt. M.S. Naik, Assistant Government Pleader for respondent No.1.
    Shri S.G. Joshi, Advocate for the respondent No.2.





    Shri R.G. Kavimandan, Advocate for respondent Nos.3 and 4.

                                                    ....

                                            CORAM : PRASANNA.B.VARALE, J.

DATED : 19TH SEPTEMBER, 2016.

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    ORAL JUDGMENT : 




                                                                                                 
                                                                   

Rule. Rule is made returnable forthwith. As the controversy

involved in the present petition is limited one, the petition is heard finally

with the consent of the learned Counsel for the respective parties.

2. The petitioner challenges the order dated 13th February, 2015

passed by the Deputy Registrar, Cooperative Societies, Akola thereby

issuing recovery certificate under Section 101 of the Maharashtra

Cooperative Societies Act, 1960. The respondent No.2/Bank initiated

proceedings for recovery of the amount to the tune of Rs.14,90,092/-

against the petitioner and the respondent Nos.3 and 4 stood as guarantors

to the petitioner. The Deputy Registrar, by observing in the order that the

applicant/Bank established its claim for recovery of the amount and

though an opportunity of hearing was granted to the petitioner and none

appeared for the petitioner, the Deputy Registrar was of the opinion that

the petitioner was in default of the loan amount and passed the order

directing the recovery of the said amount by exercising the powers under

the Maharashtra Cooperative Societies Act.

3. Shri Mohta, the learned Counsel appearing on behalf of the

petitioner vehemently submits that the order passed by the Deputy

Registrar is clearly unsustainable on the ground of failure to observe the

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principle of natural justice. It is the submission of Shri Mohta that though

the Deputy Registrar observed in the order that an opportunity of hearing

was granted to the petitioner, the record clearly shows the fact otherwise.

The learned Counsel invites my attention to the documents placed on

record in support of his submission. The learned Counsel for the

petitioner by referring to the copy of the order sheet of the authority

concerned, namely the Deputy Registrar Cooperative Societies, submits

that on 15.09.2014, the proceeding was initiated and it was directed to

issue notice. He further submits that though it was referred to issue notice,

no notice was issued and on 29.10.2014 by observing that the

representative for the bank was present and none was present for the

petitioner, directed to issue the final notice. Shri Mohta, the learned

Counsel for the petitioner then by inviting my attention to the order sheet,

submits that on 20.11.2014, the authority observed that the final notice

returned back unserved and directed to issue the public proclamation. On

24.11.2014, the public proclamation was issued and published in the

newspaper. The copy of the said proclamation is placed on record and the

same reads that the petitioner was directed to attend the office of the

authority to submit his say on 16.12.2014 and the public proclamation was

published in daily newspaper on 24.11.2014. Perusal of the order sheet

further shows that on 16.12.2014, the respondent No.2/Bank was

represented through one of the officers and the petitioner also remained

present before the authority. It further shows that the authority on that

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date passed a cautionary order and the same reads thus, if the loan

amount is repaid by 02nd February, 2015, well and good, or otherwise the

order would be passed on 02nd February, 2015 and the proceeding was

posted for further orders on 02nd February, 2015. On 02nd February, 2015,

the respondent No.2/Bank was represented through one officer and the

petitioner was represented through his Counsel. The Counsel

representing the petitioner sought an adjournment orally. The authority

by recording that in spite issuing notice time and again and in spite of

granting opportunities to the petitioner, the petitioner failed to repay the

loan amount and ultimately the order was passed which is impugned in

the present petition.

4. Shri Mohta, the learned Counsel for the petitioner vehemently

submits that on 02nd February, 2015, the petitioner was represented

through his Counsel and the Counsel specifically made an oral request for

grant of time. He further submits that a request was flatly turned down

and the authority passed the order. It is the submission of Shri Mohta that

the act of the authority was clearly indicative of the factum of failure in

observing the principle of natural justice. The learned Counsel also

submits that even on 16.12.2014, the authority only by way of direction,

directed the petitioner to deposit the amount. There was no opportunity

granted to the petitioner to submit his say. He further submits that when

the petitioner attended the authority on 16.12.2014, he was not assisted by

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a Counsel and as such being a person having no acquaintance with the

legal proceedings was unable to submit his case before the authority. Shri

Mohta, the learned Counsel submits that on 02nd February, 2015, the

petitioner sought assistance of his Counsel and the Counsel who was

before the authority made an oral request to grant time and the authority

was not inclined to grant time to the Counsel and ultimately passed the

order. Thus, Shri Mohta submits that the order is clearly unsustainable. In

support of his submission, Shri Mohta, the learned Counsel for the

petitioner places heavy reliance on the judgments of this Court in the cases

of Khushal Narayanrao Mundhe .v. State of Maharashtra and others

(reported in 2007(4) Mh.L.J., 333) and Sundeep Polymers Pvt. Ltd. and

others .v. State of Maharashtra and others (reported in 2010(6) All MR,

550).

5. Per contra, Shri Joshi, the learned Counsel appearing on behalf

of the respondent No.2/Bank makes an attempt to submit that the

petitioner was granted an opportunity of hearing and the petitioner failed

to avail that opportunity of hearing. His other submission is that the

petitioner is having an alternate remedy of preferring revision and the

petitioner can raise all the grounds before the revisional authority.

6. Insofar as the first submission of Shri Joshi, the learned

Counsel for respondent No.2/Bank is concerned, though Shri Joshi makes

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an attempt to support the order by referring to the note sheet and referring

to the order of the authority wherein it is observed that the sufficient

opportunities were granted to the petitioner, I am unable to accept the

submission of Shri Joshi, the learned Counsel for the respondent

No.2/bank. The note sheet is referred in detailed in the submission of Shri

Mohta, the learned Counsel for the petitioner. The order sheet clearly

shows that the opportunity was granted to the petitioner by a public

proclamation published in the newspaper on 24.11.2014 informing the

petitioner to attend the authority on 16.12.2014. On 16.12.2014, the

petitioner appeared before the authority and the authority posted the

matter for order on 02nd February, 2015. Though the authority in its reply

submitted that the petitioner expressed his willingness to clear the loan

amount on 16.12.2014 and sought time, perusal of the order dated

16.12.2014 nowhere refers to such a situation i.e. the petitioner expressing

his willingness to deposit an amount and on that count sought some time

from the authority but the order clearly shows that it is only the dictum of

the authority referred to in the order that if the petitioner deposits the

amount on 02nd February, 2015 is well and good otherwise an order would

be passed on 02nd February, 2015. On 02nd February, 2015, the petitioner,

who was before the authority with his lawyer and the lawyer made a

request for time orally, there is nothing on record as to why the request

was turned down.

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7. Though an attempt is made to submit a reason in the reply

filed by the authority by stating that on 02nd February, 2015, the petitioner's

Counsel was present on behalf of the petitioner and since the petitioner

failed to deposit the amount, the matter came to be closed and the

impugned certificate came to be issued against the petitioner. The

approach of the authority is not justified. The authority certainly could

have granted one opportunity to the petitioner when he was represented

through the Counsel and the Counsel was seeking some time even though

it was an oral request. From the perusal of the material placed on record, it

reveals that the petitioner is running a small scale unit of dry cleaning at

Akola by name Sunlight Power Dry Cleaners. The principle of natural

justice which includes the opportunity of hearing as a basic principle is to

be followed in letter and spirit. In the present matter, it is only observed by

the authority that when the opportunity was granted to the petitioner, he

failed to avail that opportunity; whereas the record clearly shows that the

first opportunity was granted by issuing public proclamation and when he

sought time on second occasion i.e. on 02nd February, 2015 through his

Counsel, no time was granted and the authority passed the order. Such an

exercise certainly cannot be treated as a real and substantive observation

of principle of natural justice. Though Shri Joshi, the learned Counsel for

respondent No.2/bank raises a ground of an alternate remedy of revision

available to the petitioner, on the backdrop of the fact that there was no

opportunity of hearing granted to the petitioner, Shri Mohta, the learned

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Counsel for the petitioner was justified in placing reliance in the case of

Khushal Narayanrao Mundhe .v. State of Maharashtra and others (cited

supra) as well as Sundeep Polymers Pvt. Ltd. and others .v. State of

Maharashtra and others (cited supra).

8. Considering all these aspects, in my opinion, the petitioner has

made out a case for setting aside the order impugned in the petition. The

order passed by the Deputy Registrar, Cooperative Societies impugned in

the petition is quashed and set aside. The matter is remitted back to the

Deputy Registrar, Cooperative Societies, Akola to pass order afresh,

needless to state that by giving an opportunity of hearing to the petitioner.

Considering the fact that the petitioner sought loan from the respondent

No.2/Bank in the year 1996-97 and proceedings were pending in the year

2014 and decided by order dated 13.02.2015, the Deputy Registrar,

Cooperative Societies shall endeavour to pass an order afresh as early as

possible and preferably within 12 weeks from today.

8. Shri Mohta, the learned Counsel for the petitioner fairly

submits that the petitioner is ready to show his bona fides by depositing

some amount. He submits that the petitioner has already deposited an

amount of Rs.1,50,000/- (rupees one lakh and fifty thousand only) in this

Court in compliance of the order dated 25th January, 2016. Shri Mohta, the

learned Counsel for the petitioner seeks permission to withdraw this

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amount and further submits that the petitioner would deposit an amount

of rupees five lakhs before the authority namely the Deputy Registrar,

Cooperative Societies, Akola within four weeks from today.

9. The petition stands disposed of in the aforesaid terms. Rule is

accordingly made absolute.

JUDGE

*rrg.

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                                   C E R T I F I C A T E




                                                               

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