Ashok S.S.K.Ltd vs Namdeo Dhondiba Jagtap
2018 Latest Caselaw 976 Bom

                                  1                  WP 5243.1995 .odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD
                           ...
             WRIT PETITION NO. 5243 OF 1995

             Ashok Sahakari Sakhar Karkhana
             Ltd., Ashoknagar, Tq. Shrirampur,
             Dist Ahmednagar.                ....Petitioners...
                                             (orig disputant)

             VERSUS

         NAMDEO DHONDIBA JAGTAP.
         Age major, Occ. Contractor,
         R/o Kanhegaon, Tq. Kopargaon,
         Dist. Ahmednagar.                  ...Respondent..
                                            (orig. opponent.)
                               ...
           Advocate for Petitioner : Shri V.S. Bedre. 
         Advocate for Respondents : Mr P.B.Shirsath 
                               ...
                  CORAM : V.K. JADHAV, J.

...

Reserved on : January 12, 2018.

Pronounced on January 25, 2018.

...

JUDGMENT :-

1. Being aggrieved by the judgment and order passed

by the In-charge President, Maharashtra State

Cooperative Appellate Court, Bombay, Bench at

Aurangabad in appeal No.93/1990, the original

disputant has preferred this writ petition.

2. Brief facts, giving rise to the present writ petition

are as follows :-

                                       2                     WP 5243.1995 .odt

     a]      The   petitioner   had   filed   a   dispute   against   the 

respondent herein before the Cooperative Court at

Shrirampur bearing No.216/1982 for recovery of the suit

amount. It has been contended by the petitioner that

respondent had entered into an agreement for the

transportation of the sugar bags in the go-down and

from go-down to the railway station and also to make

the delivery from the other vehicle for the year 1975-

1976. Accordingly, work was allotted to respondent on

19.3.1975 and agreement to that effect was executed on

16.4.1975. It has been further contended in the said

dispute that respondent was given advances from time

to time and said amount has been shown in his

account. After deducting the amount of the work done

by respondent as on 30.6.1980, an amount of

Rs.9189.66 ps was due and outstanding against the

respondent. Thus, for the recovery of the said amount

alongwith interest @ 18% p.a from 1.7.1980 till filing of

the dispute, the dispute has been raised before the

Cooperative Court. It has also been contended in the

dispute that, the respondent was a 'C' class Member of

the petitioner Karkhana.

                                     3                    WP 5243.1995 .odt

     b]      Respondent herein has  strongly resisted the  said 

dispute by filing the reply. It has been contended in the

reply that account extract of the disputant account was

not legal and proper. Respondent has denied the

account extract so also the amount deposited in his

name. It has also been contended that, there was an

agreement between the disputant and the opponent for

transportation of the sugar bags from the sugar house

so also to make measurement of the sugar bags.

However, disputant has not given the account of that

amount and false amount has been shown in the name

of the opponent and so also the disputant has not paid

the amount payable to the labourers and porters. It has

been also contended that, opponent is not a member

and as such dispute is not maintainable in the

cooperative court. The disputant has filed false dispute

only to harass the opponent.

c] On the basis of the pleadings of the parties, the

learned Judge of the co-operative Court has framed as

many as five issues and the parties lead their oral and

documentary evidence in support of their respective

4 WP 5243.1995 .odt

contentions.

3. The learned judge of the cooperative Court by

judgment and order dated 23.4.1990 allowed the dispute

and accordingly directed that the petitioner/original

disputant can recover the amount of Rs.9189.66 with

interest @ Rs.12% p.a. w.e.f. 1.1.1983 on the principal

amount of Rs.9189.66 till the realization from the

opponent alongwith costs which is determined at

Rs.630/-. Being aggrieved by the same, the respondent

herein has preferred appeal no.93/1990 before the

Maharashtra State Cooperative Appellate Court,

Bombay, Bench at Aurangabad and by impugned

judgment and order dated 29.7.1995 learned in charge

President of the Maharashtra State Cooperative

Appellate Court Bombay, Bench at Aurangabad, has

allowed the appeal and quashed and set aside the

judgment and order dated 23.4.1990 passed by the

learned Judge, Cooperative Court, Shrirampur. Hence,

this writ petition.

4. The learned counsel for the petitioner submits

5 WP 5243.1995 .odt

that, the allotment work of the transportation of the

sugar bags and agreement executed pursuant thereto

are the admitted facts. It is also not disputed that the

respondent herein has empowered his father vide exh.6

to do the work of the transportation and to receive

advance payment and also to make payment to the

labourers. The learned counsel submits that, there are

two important documents exh.6 and exh.51. As per

exh.6, the respondent has empowered his father Shri

Dhondiram Kashinath to receive the payment of the

bills. Said authorization exh.6 has been executed on

17.4.1975 on the stamp paper of Rs.6 and the same has

not been specifically denied by the respondent. Father

of the respondent namely Shri Dhondiram has made an

application exh.51 that amount Rs.18,200/- as on

15.4.1975 shown in his name be diverted and shown in

the account of his son (respondent herein). Learned

counsel submits that, accordingly vouchers were

prepared and this amount of Rs.18,200/- was shown in

the account of respondent under Exh.72 on 20.5.1975.

This amount is mainly under dispute between the

parties. The learned counsel submits that, the appellate

6 WP 5243.1995 .odt

court has given importance to the office remarks on the

rear side of exh.51 which indicates that before diverting

and showing it into account of the respondent, the

consent of the respondent is required. However, the

appellate court has ignored the main document exh.6

which clearly speaks about the authorization by the

respondent to his father to do all transactions of

monetary business on behalf of the respondent.

5. The learned counsel for respondent submits that,

the respondent Namdeo has deposed before the

Cooperative Court that said disputed amount

Rs.18,200/- debited in his account on 20.5.1975 was

without his consent and even his father also did not

inform him about debiting the said amount in his

account. He did not give said authority to his father to

debit said amount in his account. Learned counsel

submits that, the appellate court has rightly given

weightage to the remark of the Managing Director on the

rear side of exh.51 that while transferring the amount of

Rs.18,200/- in the name of respondent, his consent is

necessary, since no consent of the respondent was

7 WP 5243.1995 .odt

obtained for such a transfer of the amount in the

account, the petitioner herein had no right to raise any

dispute about the same.

6. On careful perusal of the judgment and order

passed by both the courts below and record and

proceeding, it appears that, the appellate court has not

given weightage to the letter exh.6. Though, the

appellate Court has observed that on the basis of the

authorization, sugar factory justified in paying the

amount to the father of the present respondent,

however, accepted the contention raised by the

respondent about disputed amount of Rs.18,200/-

which is debited in his account. As per exh.6, the

respondent has empowered his father Shri Dhondiram

Kashiram to receive the payment of the bills of the work

and advance payment and that respondent herein had

no objection that the amount of the work if paid to his

father. Bills and vouchers are placed on record, they are

marked at exh. 7 to 20, exh.23 to 37, exh.45 to 66, 49 to

50, and exh.53 to exh.61, exh.62 to 65 and 66 to 70. All

these are the receipts of the damarages and vouchers.

8 WP 5243.1995 .odt

The petitioner has duly proved the said bills and

vouchers. As per exh.6, if the respondent herein had

empowered his father to do all the transactions of the

monetary business on behalf of the respondent, the

specific consent of the respondent about the disputant

amount of Rs.18,200/- was not required. However, the

appellate court has not considered the same. The

learned judge of the cooperative court has discussed the

evidence at length and rightly allowed the dispute.

Even, respondent Namdeo has also admitted in his

cross examination that subsequent to the execution of

the agreement exh.5, transaction were dealt with by his

father. Appellate Court without there being any

pleadings has observed that amount of Rs.18,200/-

which is debited in the account of the respondent is

obtained by his father in his personal capacity and not

on behalf of the respondent Namdev. The respondent

has not specifically denied the document exh.6 and even

then the appellate court has considered his oral

evidence to the effect that he never authorized his father

to obtain disputed amount of Rs.18,200/-. Even

though, bills and vouchers are produced on record, the

9 WP 5243.1995 .odt

appellate court has observed that no voucher of

Rs.18,200/- are produced on record. In fact, there

cannot be any voucher of Rs.18,200/- and the same is

the total amount of various transactions/work. The

appellate Curt without any evidence observed that the

petitioner/sugar factory has failed to prove the claim of

Rs.18,200/- and respondent Namdeo would not be liable

to pay any amount. Further by ignoring the letter exh.6

the appellate court has observed that, it was necessary

on the part of the petitioner sugar factory to implead the

father of the respondent as a party to the dispute and

should have claimed the amount jointly from the

respondent and his father.

7. In view of the above, I find that the learned In-

charge President of the Maharashtra State Cooperative

Appellate Court has recorded the perverse finding

against the admitted facts and evidence lead by the

parties. Thus, the impugned judgment and order

passed by the Maharashtra State Cooperative Appellate

Court, Bombay Bench at Aurangabad is liable to be

quashed and set aside by confirming the judgment and

10 WP 5243.1995 .odt

order passed by the Cooperative Court, Shrirampur.

However, this writ petition is pending since 1995. In

view of the same, the respondent is liable to pay the

interest on the principle amount as directed by the

Cooperative Court, Shrirampur w.e.f. from 1.1.1983 till

the disposal of the appeal by the lower appellate Court

and thereafter from the date of this order till realization

of the entire amount as per the rate of interest i.e. 12%

p.a. as directed by the Cooperative Court, Shrirampur.

Hence, following order is passed.

O R D E R

1. Writ Petition is hereby partly allowed with costs.

2. The impugned judgment and order passed by the in-charge President, Maharashtra State Cooperative Appellate Court, Bombay, Bench at Aurangabad in appeal no.93 of 1990 is hereby quashed and set aside.

3. Judgment and order passed by the Co-

operative Court, Shrirampur dated 23.4.1990 in Case No.SR/ABN/216/82 stands confirmed with the following modifications :-

                                              11                  WP 5243.1995 .odt



                      a]       The   respondent   is   liable   to   pay   the 
                               interest   @   12%   p.a.   on   the   principal 

amount of Rs.9189.66 as directed by the Cooperative Court w.e.f. 1.1.1983 till the disposal of the appeal by the Maharashtra State Cooperative Appellate Court, Bombay Bench at Aurangabad and thereafter from the date of this order till the realization of the entire amount.

4. Rule is made absolute in above terms.

5. Writ Petition accordingly disposed of.

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( V.K. JADHAV, J. )

...

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