Vishwanath Vitthal ... vs Jai Bharat Matsya Vyavsai ...
2021 Latest Caselaw 10008 Bom

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                       WRIT PETITION NO. 9988 OF 2012

Vishwanath S/o Vitthal Dhamangaonkar
age 30 years, occ. Labourer
R/o Nalegaon, Tq. Chakur, Dist. Latur.                      Petitioner

       Versus

1.     Jai Bharat Matsya Vyavsai Sahakari Sanstha Ltd.
       Nalegaon, Tq. Chakur, Dist. Latur
       Through its Chairman
       Vithoba Jairam Bedade
       Age 64 years, occ. Agri.
       R/o Hundgewadi, Tq. Chakur, Dist. Latur.

2.     Jai Bharat Matsya Vyavsai Sahakari Sanstha Ltd.
       Nalegaon, Tq. Chakur, Dist. Latur
       Through its Secretary
       Kashinath Vithoba Dhamangaonkar
       Age 49 years, occ. Labourer
       R/o Nalegaon, Tq.Chakur, Dist. Latur.

3.     Vasant Baliram Dhamagaonkar
       Age 45 years, Occ. Labourer
       R/o Nalegaon, Tq. Chakur, Dist. Latur.

4.     Balaji Baliram Dhamangaonkar
       Age 34 years, Occ. Labourer
       R/o Nalegaon, Tq. Chakur, Dist. Latur.

5.     Sudhakar Deorao Dhamangaonkar
       Age 44 years, Occ. Labourer
       R/o Nalegaon, Tq. Chakur, Dist. Latur.

6.     Dagadu Shamshoddin Shaikh
       Age 49 years, Occ. Labourer
       R/o Nalegaon, Tq. Chakur, Dist. Latur.




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7.     Bittu Ranba Pandhavale
       Age 49 years, Occ. Labourer
       R/o Nalegaon, Tq. Chakur, Dist. Latur.

8.     Vinayak Sambhaji Kamble
       Age 49 years, Occ. Labourer
       R/o Nalegaon, Tq. Chakur, Dist. Latur.

9.     Rajendra Goroba Maybone
       Age Major, Occ. Labourer
       R/o Nalegaon, Tq. Chakur, Dist. Latur.

10.    Tukaram Narsing Khartmal
       Age 49 years, Occ. Labourer
       R/o Nalegaon, Tq. Chakur, Dist. Latur.

11.    Sanjay Narsing Kharatmal
       Age 39 years, Occ. Business
       R/o Nalegaon, Tq. Chakur, Dist. Latur.

12.    Babu Sambhaji Kamble
       Age 49 years, Occ. Labourer
       R/o Nalegaon, Tq. Chakur, Dist. Latur.

13.    Shatruguna Rakmaji Sawalkar
       Age 49 years, Occ. Labourer
       R/o Nalegaon, Tq. Chakur, Dist. Latur.

14.    Ram Sambhaji Gogdand
       Age 49 years, Occ. Labourer
       R/o Nalegaon, Tq. Chakur, Dist. Latur.

15.    Babu Shamrao Suryavanshi
       Age 49 years, Occ. Labourer
       R/o Nalegaon, Tq. Chakur, Dist. Latur.             Respondents

Mr. R. B. Deshmukh, Advocate for the petitioner.
Mr. R.D. Biradar, Advocate for respondents No. 1, 3 to 6, 8 to 15.
Mr. A.M. Nagarkar, Advocate for respondent No. 2.




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                                  CORAM : M.G. Sewlikar, J.

                          RESERVED ON : 20th July, 2021.
                        PRONOUNCED ON : 30th July, 2021.



JUDGMENT :

1. Rule. Rule made returnable forthwith.

2. By consent of the parties, heard fnally at the admission

stage.

3. This writ petition under Article 227 of the Constitution of

India is preferred by the original disputant against the judgment and

award dated 5th December, 2011 in Appeal No. 70/2011 passed by the

learned Co-operative Appellate Court ('Appellate Court' for short),

Mumbai, Bench at Aurangabad, whereby the learned Appellate Court

reversed the judgment and order dated 4 th November, 2009 passed by

the learned Judge, Co-operative Court, Nanded in Dispute No.

142/2003.

4. Facts leading to this writ petition can be succinctly

stated as under :-

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The petitioner (original disputant) is a member of

respondent No. 1- society. Respondents No. 2 to 14 are the Managing

Committee members of respondent No. 1- society. Respondent No. 1

carries on the business of fsheries from Gharni project at village

Nalegaon.

5. It is further the case of petitioner that on 28 th April,

2003, the controlling authority of the said Gharni project demanded

advance amount of Rs. 1,66,500/- from respondents No. 1 and 2.

Since respondents No. 1 and 2 could not raise this amount, they

requested the petitioner to make some arrangement. On their

request, petitioner paid Rs. 50,000/- to respondents No. 1 and 2.

Respondents No. 1 and 2 also executed a document. It is contended

that at the time of accepting payment from petitioner, respondents

No. 1 and 2 assured that the said amount would be paid to petitioner

after starting fsheries business. After entering into the contract,

respondents No. 1 and 2 sold one truck of fsheries for an amount of

Rs. 1,05,888/-. Petitioner, thereafter, put forth his demand of

Rs.50,000/- which was rejected by respondents No. 1 and 2. It was

contended by petitioner that respondents No. 1 and 2 in collusion

with respondents No. 3 to 14, did not get audited the accounts of the

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society for three years. Respondents No. 1 and 2, despite making

huge proft, have not distributed the same amongst the members.

Therefore, petitioner fled the above dispute before the Co-operative

Court, Nanded for recovery of amount of Rs. 50,000/-.

6. Respondents No. 1 and 2 fled their written statement at

Exhibit 13 in the record of the Co-operative Court. They denied all

the allegations made against them by petitioner. It is their case that

petitioner had been expelled from the society on account of his

activities which were detrimental to the interest of the society vide

resolution No. 3 passed in a meeting convened on 13 th April, 2002.

This resolution has been confrmed in General Meeting on 15 th June,

2002 vide resolution No. 2. Petitioner has not paid subscription to

the society despite making repeated demands. They contended that

the accounts of the society have been duly audited by the auditor. It

is further contended by respondents No. 1 and 2 that this amount of

Rs. 50,000/- is shown to be accepted by one Kashinath Vitthal

Dhamgaonkar who happens to be the brother of petitioner. No

resolution was passed by the society for acceptance of Rs. 50,000/-

by the society. Such a transaction has to be supported by resolution

of the society. No such resolution is produced on record. On these

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grounds, they prayed for dismissal of the dispute.

7. The learned Judge of the Co-operative Court partly

allowed the dispute rejecting the claim of accounts of the society

made by the disputant and allowed payment of Rs. 50,000/- by

respondents No. 1 and 2 with interest at the rate of 6% per annum.

8. Respondents No. 1 and 2 assailed this decision before the

Appellate Court. The Appellate Court allowed the appeal and

dismissed the dispute of the disputant. The learned Appellate Court

held that the petitioner could not prove that an amount of

Rs.50,000/- was accepted by respondents No. 1 and 2. It has held

that agreement was executed by one Kashinath Vitthal

Dhamangaonkar and Vithoba Badade. It has further held that these

two persons had no authority to enter into any such agreement as it

is not supported by any resolution of the society. On this ground, the

learned Appellate Court allowed the appeal and dismissed the

dispute. Petitioner, by this petition has assailed the legality of the

award passed by the Appellate Court.

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9. Heard Shri R.B. Deshmukh, learned counsel for the

petitioner, Shri R.D. Biradar, learned counsel for respondents No. 1, 3

to 6, 8 to 15 and Shri A.M. Nagarkar, learned counsel for respondent

No. 2.

10. Learned counsel Shri Deshmukh submitted that the said

agreement was proved before the Co-operative Court. From the said

agreement, it is evident that the agreement was executed by said

Dhamangaonkar in his offcial capacity as Secretary. He submitted

that the learned Co-operative Court was, therefore, perfectly justifed

in allowing the dispute. He submitted that Kashinath

Dhamangaonkar was the Secretary of respondent No. 1 - society at

the relevant time. Therefore, he acted in his offcial capacity as

Secretary and accepted Rs. 50,000/- for and on behalf of the society.

He submitted that respondents No. 1 and 2 despite accepting such a

huge amount are denying liability with the oblique motive of duping

the petitioner. He, therefore, prayed to allow the petition.

11. Respondents No. 1 and 2 supported the impugned order.

12. It appears that before accepting the amount of

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Rs. 50,000/-, no resolution seems to have been passed by

respondent No. 1 - society. Therefore, the action of the offce bearer

of the society who entered into the alleged agreement with petitioner

cannot be said to be for and on behalf of the society. Respondent No.

1 - society has specifcally denied that it had received any such

amount from the petitioner. It was, therefore, a bunden duty of the

petitioner to produce resolution to that effect indicating therein that

the society had authorised the said offce bearer to enter into an

agreement with petitioner for and on behalf of the society. As

indicated above, no such resolution is forthcoming.

13. Whenever any payment is made to the society, receipts

are passed by the society to that effect. If really any such transaction

has taken place for and on behalf on the society, the society must

have passed the receipt. Petitioner ought to have produced receipt to

buttress his claim that the amount was paid to the society. In the

absence of any such evidence, it cannot be said that the amount was

received by the society. Therefore, the learned Appellate Court was

perfectly justifed in reversing the judgment and award passed by the

learned Co-operative Court. No fault can be found with the order

passed by the learned Appellate Court. In this view of the matter,

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writ petition is devoid of any substance. Hence, it is dismissed with

no order as to costs. Rule discharged.

( M. G. SEWLIKAR ) Judge

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