Bombay High Court
Hina Shahin Co Operative Urban ... vs Mohammad Jahed Siddiqui Mahammad ... on 6 April, 2021
Bench: R. G. Avachat
wp.8905-2016.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8905 OF 2016
Hina Shahin Co-operative Urban
Bank Ltd., Beed ..Petitioner
Vs.
Mohammad Jahed Siddiqui s/o.
Mohammad Jafar ..Respondent
----
Mr.M.P.Gude, Advocate for petitioner
Mr.H.V.Tungar, Advocate for respondent
----
CORAM : R.G. AVACHAT, J.
RESERVED ON : FEBRUARY 05, 2021
PRONOUNCED ON : APRIL 06, 2021
ORDER :-
The challenge in this Writ Petition is to the order dated
28.02.2014 passed by the Co-operative Court, Aurangabad, in
C.C.A. No.222 of 2012 and confirmed by learned Member,
Maharashtra State Co-operative Appellate Court, Mumbai, at
Aurangabad, in Appeal No.3 of 2015.
2. The petitioner is a Co-operative Bank Ltd. ("the bank",
for short). It went into liquidation. A Liquidator, therefore, came
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to be appointed. The bank issued notice under Section 105 of
the Maharashtra Co-operative Societies Act, 1960 ("the Act",)
for short) by publication in the daily dated 08.10.2010. Vide
the said notice, the respondent was shown as one of the
defaulters of the loan advanced by the bank. The respondent
was called upon to pay the outstanding loan amount. Before
issuance of the public notice, a personal notice had been issued
on 08.10.2010, calling upon the petitioner to repay the amount
of loan of Rs.12,65,006/- due as on 28.02.2010. The
respondent, therefore, filed a dispute in the Co-operative
Court, challenging the notice issued under Section 105 of the
Act. It was dispute No.222 of 2012. Relief of declaration was
sought to the effect that the notice issued under Section 105 of
the Act, is illegal and void. In short, it was the contention of
the respondent that he has repaid entire loan amount and
nothing was due to the bank. The bank authorities, therefore,
issued him `no-dues certificate'.
3. The Co-operative Court, Aurangabad, allowed the
dispute holding the notice under Section 105 of the Act to be
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illegal and it was, therefore, set aside. The petitioner - bank
has been unsuccessful in the appeal preferred against the
judgment and order passed in C.C.A. No.222 of 2012. Hence,
the present Writ Petition.
4. Mr.Gude, learned counsel for the petitioner, would
submit that the respondent - borrower has not paid any
amount due from him under the loan account. It was cash
credit facility granted by the bank to the respondent. The cash
credit account limit is of Rs.3,50,000/-. The respondent
availed the cash credit facility on the said account many a time.
During the bank audit, it was found that the members of the
Board of Directors, bank officials and its employees committed
misappropriation of funds. Prosecution has been launched
against them. It was also found that the bank officials, without
receiving any amount from the borrowers, issued no-dues
certificate.
5. On appointment of the Liquidator, it was found that
the respondent and few others owed the bank amount received
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by them under their loan accounts. The Liquidator, therefore,
took necessary steps for recovery of the loan amounts. A notice
under Section 105 of the Act, was one of such steps taken by
the Liquidator. Public Money has been involved. Learned
counsel, therefore, urged for allowing the Writ Petition with
remand of the matter to the Co-operative Court for deciding it
afresh.
6. Mr.Tungar, learned counsel for the respondent,
would, on the other hand, submit that nothing has been due
from the respondent on his loan account. The responsible bank
officials issued the respondent no dues certificate. It was for
the bank officials to account for the amount received from the
respondent towards repayment of loan. It is for the bank to
suffer for the mischief, if any, committed by its officials and
persons in the management thereof. According to learned
counsel, both the courts below have concurrently held the
respondent to have repaid the loan amount. No interference
is, thus, warranted with the impugned order.
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7. Admittedly, the respondent had availed the cash
credit facility amounting to Rs.3,50,000/- way back in the year
2003. The bank went into liquidation. Liquidator came to be
appointed. He found the respondent to have been in arrears of
repayment of loan. The impugned notice under Section 105 of
the Act, therefore, came to be issued. The respondent filed
dispute in Co-operative Court challenging the impugned notice.
Before the Co-operative Court. The respondent produced
documents (Exhibits 17 to 19). Exhibit 17 was loan-nil
certificate issued by the bank officials. The witness examined
on behalf of the bank admitted said certificate to have been
issued on behalf of the bank. As such, genuineness of the said
certificate was not in dispute. The bank witness went on to
admit that the bank employees have been charged for
accepting loan amount from its borrowers but not accounting
the same to the bank. Exhibits 18 and 19 were receipts
showing total repayments of Rs.16,01,525/- till 17.0.2008.
Both the courts below have concurrently held that the payment
made by the respondent towards clearance of loan account has
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not been reflected in the statement of accounts of the bank. A
bank employee intending to misappropriate money deposited in
the bank, will not make entry thereof in the books of accounts.
Same might have happened in the present case.
8. On preponderance of probabilities, both the Courts
below have found the bank to have failed to prove that the
amount, as has been shown in the notice under Section 105 of
the Act, was due from the respondent. Since the conclusion
arrived at by both the courts below is probable one on the
basis of the evidence in the case, no interference therewith is
called for in exercise of the writ jurisdiction.
9. The Writ Petition, therefore, failed. The same is
dismissed.
[R.G. AVACHAT, J.]
KBP
