Kurla Nagrik Sahakari Bank Ltd. ... vs Dattaram Ramchandra Sawant, ...
2018 Latest Caselaw 1224 Bom

                                                                                      WP6616&2599.doc


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION
                            WRIT PETITION NO.6616 OF 2017
                                        WITH
                            WRIT PETITION NO.2599 OF 2018
Office Notes, Office                 Court's or Judge's orders
Memoranda of Coram,
appearances,Court's
orders, or directions,
and Registrar's Orders
                                     Mr. Sampatrao Pawar for Petitioner in W.P.No.6617/17 and for
                                     Respondent No.3 in W.P.No.2599/18.
                                     Mr. Pankaj Thatte for Respondent No.2 in W.P.No.6617/17 and
                                     for Petitioner in W.P.No.2599/18.
                                     Mr. S. D. Rayrikar, AGP for Respondents-State in both the
                                     Petitions.

                                     CORAM : R. G. KETKAR, J.

DATE : 26TH NOVEMBER, 2018

P.C.:

Heard Mr. Pawar, learned Counsel for the petitioner in W.P.No.6617 of 2017 and for respondent No.3 in W.P.No.2599 of 2018, Mr. Thatte, learned Counsel for respondent No.2 in W.P.No.6617 of 2017 and for petitioner in W.P.No.2599 of 2018 and Mr. Rayrikar, learned AGP for Respondents-State in both the Petitions.

2. These Petitions take exception to the order dated 12.06.2017 passed by Mr. M. A. Arif, Divisional Joint Registrar, Co-op. Societies, Mumbai Division, Mumbai in Revision Application No.5 of 2017. By that order, during the pendency of revision application filed by the respondents No.1 and 2 herein, the Divisional Joint

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Registrar has stayed the order / Rojnama dated 21.10.2016 of petitioner No.2, Special Recovery Officer till the next date of hearing. Petition No.2 was further directed to submit the copy of the withdrawal application submitted by respondents No.1 and 2 herein during the course of hearing before him.

3. In support of Petition No.6616 of 2017, Mr. Pawar invited my attention to Rojnama / order dated 21.10.2016 of proceedings before petitioner No.2. The Rojnama records thus, "Respondent No.2 for himself and on behalf of respondent No.1 stated thus,

1. The OTS proposal may be considered in the light of concessions given in the circular of the year 2016-17 and the amount may be intimated;

2. As the appeal is pending before the Divisional Joint Registrar, the impugned order may not be implemented;

3. The above requests may be considered and the objections filed by them are withdrawn."

After recording this, petitioner No.2 acceded to the request made by respondents No.1 and 2 of withdrawal of the application and accordingly disposed of the application.

4. A perusal of the Rojnama shows that the said Rojnama is signed by Advocate for respondents No.1 and 2 herein as also Advocate for petitioner No.1, and petitioner No.2. A perusal of the impugned order prima

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facie shows that respondents No.1 and 2 herein, who are applicants before the third respondent, denied that they have ever stated that they are withdrawing the objection lodged by them before the petitioner No.2 herein. Respondent No.3 thereafter observed thus, "Therefore the grounds raised by the rival parties and the facts of the case needs to be verified by calling record and proceedings from the lower Authority and also to hear the concerned parties at length before coming to final conclusion and decision on merits.

Therefore, in the intervening period it is necessary to stay the impugned order / roznama, otherwise the respondent SRO & Bank may proceed further and the aforesaid case may become infructuous. Hence, I pass the following interim order."

5. Prima facie, while recording the above observations, the third respondent did not consider very important aspect, namely, the fact that the Advocate for the respondents No.1 and 2 herein have signed the Rojnama. Prima facie, therefore, it was not open for the respondents No.1 and 2 herein to contend that they never stated that they are withdrawing objections lodged by them before the petitioner No.2. All that they requested was to consider their OTS proposal as per the circular of the year 2016-17 and give the necessary concessions.

6. In view thereof, list the Petitions for 'admission' on 04.12.2018 in the Supplementary Board, H.O.B. On that date, respondent No.3 shall personally remain present and explain his stand as to in what circumstances he granted

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stay to Rojnama. Respondent No.3 shall file affidavit explaining his stand before the next date of hearing. Respondents No.1 and 2 shall also take instructions as to within what time, they will deposit amount due and payable by them to petitioner No.1 Bank in W.P.No.6616 of 2017 in this Court. The learned AGP shall also keep the original record ready for perusal of the Court. Order accordingly.

(R. G. KETKAR, J.)

Minal Parab