Bombay High Court
Hina Shahin Co Operative Urban ... vs Mahammad Husain Akbar Husain on 16 March, 2021
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
927 WRIT PETITION NO.11061 OF 2015
HINA SHAHIN CO-OPERATIVE URBAN BANK LTD,
BEED THROUGH IT'S CHIEF LIQUIDATOR
VERSUS
SAYYAD NAVIDUJJAMA SAYYAD FAKRUJJAMA
...
Advocate for Petitioner : Mr Gude Madhav P.
Advocate for Respondents : Mr Tungar Hrishikesh V
...
AND
931 WRIT PETITION NO.9014 OF 2017
HINA SHAHIN CO-OPERATIVE URBAN BANK LTD.,
BEED THROUGH IT'S CHIEF LIQUIDATOR
VERSUS
MAHAMMAD HUSAIN AKBAR HUSAIN
...
Advocate for Petitioner : Mr. Gude Madhav P.
Advocate for Respondent:Mr.S P Telgote h/f T. J. Momin
...
AND
942 WRIT PETITION NO.9307 OF 2019
HINA SHAHIN CO-OPERATIVE URBAN BANK LTD.,
BEED THROUGH IT'S LIQUIDATOR
VERSUS
SHAMSHIR KHAN YASIN KHAN
...
Advocate for Petitioner : Mr. Gude Madhav P.
Advocate for Respondents : Mr. Tungar Hrishikesh V
...
CORAM : V.K. JADHAV, J.
Dated : March 16, 2021
...
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2 WP 11061.2015+2.odt
COMMON ORDER :-
1. Heard fnalll with consent of the parties, at
admission stage.
2. In all these writ petitions, identical issues are
raised, therefore, all these three writ petitions are
decided bl this common order.
3. Bl these writ petitions, the common petitioner in
all writ petitions seeks quashing and setting aside the
impugned order passed bl the learned Judge of the Co-
operative Court, Aurangabad and, the order passed bl
the learned Member, Maharashtra State Co-operative
Appellate Court, Mumbai bench at Aurangabad therebl
confrming the order passed bl the Co-operative Court
in appeals.
4. In writ petition no.11061 of 2015 the respondent is
the original disputant, who has fled the dispute bearing
CCA No.236 of 2012 before the Co-operative Court at
Aurangabad bl challenging the notice issued bl the
petitioner u/s 105 of the Maharashtra Co-operative
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Societies Act, 1960 (hereinafter for short referred to as
'the Act of 1960') for demand of the outstanding loan
amount. The petitioner/bank is facing fnancial crises
since 2008 and huge fraud has been revealed in the
Audit report for the lear 2007-08. In consequence
thereof, auditor has fled the complaint against the
board of Directors, emplolees, and servants of the
petitioner/bank. Further, the petitioner/bank has also
faced winding up proceeding and the board of director
was dismissed on 30.12.2008. Mr. S R Kamble, Auditor
was appointed as Administrator of the petitioner/bank.
However, petitioner/bank was closed on 22.2.2010 and
license of the bank also came to be cancelled.
Accordingll, liquidator was appointed. It appears that
petitioner/bank has issued a notice to the
respondent/original disputant on 30.10.2010 under
section 105 of the Act of 1960 for the amount of
Rs.40,76,575/- due against the respondent/disputant.
Furthermore, petitioner/liquidator has also issued a
public notice on 12.03.2012 in the daill newspaper.
Respondent had applied to the Registrar and obtained
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permission to fle the dispute against the liquidator and
accordingll, respondent herein has fled case no.CCA
236 of 2012 before the Judge of the Co-operative Court,
Aurangabad. The learned Judge of the Co-operative
Court, Aurangabad after hearing both the sides allowed
the dispute and therebl declared that the notice issued
bl the petitioner-bank u/s 105 of the Act of 1960 is
illegal and thus quashed and set aside it. The learned
Member of the Maharashtra State Co-operative
Appellate Court, Mumbai, bench at Aurangabad has
also confrmed the order passed bl the Co-operative
Court in appeal no.50 of 2014 bl judgment and order
dated 30.6.2015.
5. In writ petition no.9014 of 2017 the respondent is
the original disputant, who has fled the dispute bearing
No.318 of 2014 before the Co-operative Court, at Latur
bl challenging the notice issued bl the petitioner/bank
u/s 105 of the Maharashtra Co-operative Societies Act,
1960 (hereinafter for short referred to as 'the Act of
1960') for demand of the outstanding loan amount. The
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petitioner/bank is facing fnancial crises since 2008 and
huge fraud has been revealed in the Audit report for the
lear 2007-08. In consequence thereof, the auditor has
fled the complaint against the board of Directors,
emplolees, and servants of the petitioner/bank.
Further, the petitioner/bank has also faced winding up
proceeding and the board of director was dismissed on
30.12.2008. Auditor was appointed as Administrator of
the petitioner/bank. However, the petitioner/bank was
closed on 22.2.2010 and license of the bank also came
to be cancelled. Accordingll, liquidator was appointed.
It appears that the petitioner/bank has issued a notice
to the respondent/original disputant on 07.11.2012 u/s
105 of the Act of 1960 for an amount of Rs.25,10,954/-
due against respondent/disputant. Furthermore, the
petitioner/liquidator has also issued a public notice in
the daill newspaper. The respondent had applied to the
Registrar and obtained permission to fle the dispute
against the liquidator and, accordingll, the respondent
herein has fled dispute bearing no.318 of 2014 before
the Judge of the Co-operative Court, Latur. The learned
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Judge of the Co-operative Court, Latur, after hearing
both the sides allowed the dispute and therebl declared
that the notice issued bl the petitioner-bank under
section 105 of the Act of 1960 is illegal and thus
quashed and set aside it. The learned Member of the
Maharashtra State Co-operative Appellate Court,
Mumbai, bench at Aurangabad, has also confrmed the
order passed bl the Co-operative Court, Latur in appeal
no.82 of 2015 bl judgment and order dated 5.2.2016.
6. In writ petition no.9307 of 2019 respondent is the
original disputant, who has fled the dispute bearing
CCB No.137 of 2014 before the Co-operative Court, at
Latur bl challenging the notice issued bl the petitioner/
bank u/s 105 of the Maharashtra Co-operative Societies
Act, 1960 (hereinafter for short referred to as 'the Act of
1960') for demand of the outstanding loan amount. The
petitioner/bank is facing fnancial crises since 2008 and
huge fraud has been revealed in the Audit report for the
lear 2007-08. In consequence thereof, auditor has fled
the complaint against the board of Directors, emplolees,
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and servants of the petitioner/bank. Further,
petitioner/bank has also faced winding up proceeding
and the board of director was dismissed on 30.12.2008.
Auditor was appointed as Administrator of the
petitioner/bank. However, petitioner/bank was closed
on 22.2.2010 and license of the bank also came to be
cancelled. Accordingll, liquidator was appointed. It
appears that the petitioner/bank has issued a notice to
the respondent/original disputant under section 105 of
the Act of 1960 for the amount of Rs.2,37,848/- due
against the respondent/disputant. Furthermore, the
petitioner/liquidator has also issued public notice on
12.03.2012 in the daill newspaper. The respondent had
applied to the Registrar and obtained permission to fle
the dispute against the liquidator and, accordingll, the
respondent herein has fled dispute bearing no.137 of
2014 before the Judge of the Co-operative Court, Latur.
The learned Judge of the Co-operative Court, Latur after
hearing both the sides, allowed the dispute and therebl
declared that the notice issued bl the petitioner/bank
under section 105 of the Act of 1960 is illegal and thus
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quashed and set aside it. The learned Member of the
Maharashtra State Co-operative Appellate Court,
Mumbai, bench at Aurangabad has also confrmed the
order passed bl the Co-operative Court in appeal no.61
of 2017 bl judgment and order dated 9.11.2017.
7. Learned counsel appearing for the petitioner/bank
submits that in terms of the provisions of section 105 of
the Act of 1960, liquidator is empowered to issue
demand notice to the defaulter. The
respondent/disputant had not deposited the loan
amount in the bank and, there is no entries in the
account extract regarding anl deposit bl the
respondents/disputants with the bank. Learned
counsel submits that on the basis of the complaint
lodged bl the District Special Auditors Class-1, crime
bearing no.42 of 2009 came to be registered at police
station, Beed under section 409, 408, 406, 467, 468,
477 [A], 109, 420, r/w 34 of IPC on 6.5.2009 against the
Board of directors and emplolees. Furthermore, the
Reserve Bank of India bl order dated 18.3.2010 has also
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cancelled the license of the Bank and the Commissioner
of the Co-operative and Registrar of the Co-operative
Societies, State of Maharashtra, Pune has appointed the
liquidator on the bank on 25.3.2010 and also closed
down the bank business. Learned counsel submits that
in terms of the provisions of section 105 of the Co-
operative Societies Act, liquidator has everl power to call
upon the debtor for repalment of the unpaid debts,
however, the Court below have not considered this
material aspect. Learned counsel submits that public
monel is involved in this matter and, furthermore, fraud
has been plaled bl the Board of directors and, therefore,
respondents/disputants contention about repalment of
the loan amount is false to his knowledge.
8. Learned counsel appearing for respondent-
disputant in all these writ petitions submits that these
respondents had applied to the Registrar and obtained
permission to fle the dispute against the liquidator.
Respondents/disputants have not disputed the fact of
availing the loan from the petitioner-bank, however,
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according to them, thel have paid the entire amount
and the petitioner-bank has issued "Loan Nil Certifcatee
in favour of the respondents/disputants. Learned
counsel submits that the Co-operative Court has
carefulll examined all the documents submitted
alongwith the dispute. Though, the petitioner/bank has
examined bank's authorized person, for the frst time he
has made statement that said 'Loan Nil Certifcatee is
bogus and prepared bl the bank emplolee Mr. Kazi
Rehman Mirza and loan offcer. The learned Judge of
the Co-operative Court has also observed that witness
no.2 of the petitioner/bank has specifcalll in his cross
examination identifed the seal on document to be bank
seal. The said witness has denied his signature on
"Loan Nil Certifcatee. Learned counsel submits that the
Ex-Chief Executive Offcer in his cross-examination also
admitted that, if anl borrower or anl person deposits
anl amount in the bank, at that time the cashier in the
bank does issue receipt. It is the dutl of the bank
emplolees to take said entrl of deposit of the monel in
the record of the bank i.e. dal book, sub-book, ledger
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and computer. He has also admitted that, in case of anl
misappropriation of the monel, then said emplolee mal
not take entries of the monel deposited in the above
said record. Learned counsel submits that further in
the list of the documents having due amount more than
Rs.2,00,000/- (Rs. Two Lakhs) on 30.9.2008, name of
respondent/disputant is not included in the borrowers
list and said fact is admitted bl the Chief Executive
Offcer. Learned counsel submits that both the Courts
below have thus rightll allowed the dispute. There is no
substance in these writ petitions. All the writ petitions
are liable to be dismissed.
9. It is not disputed that the respondent/disputant
had availed loan facilities from the petitioner-bank. The
learned Judge of the Co-operative Court in all these
matters has referred the 'settlement of the dues' and 'no
dues certifcate' issued bl the bank. There is nothing
on record to dis-believe the evidence of the respondent/
disputant. The learned Judge of the Co-operative
Court, after examining the documents carefulll, held
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that the respondents/disputants in all these writ
petitions have succeeded in proving that thel had paid
the entire dues as per 'One Time Settlement'. Even the
Ex-Chief Executive Offcer has also admitted in his cross
examination that, if the director/staff of the bank had
committed misappropriation of the amount, in that
case, even if the borrower deposits the amount in the
bank and receipt is issued bl the cashier of the bank to
that effect, however, the entries to that effect are not
taken in the dal book, sub-book, ledger and computer
in order to misappropriate the said amount. In view of
the above the admission, the learned judge of the Co-
operative Court has given due weightage to the 'No Dues
Certifcate' issued bl the bank in favour of the
respondents/disputants. The learned Judge of the Co-
operative Court has recorded the fndings on facts and
those fndings are confrmed bl the Maharashtra State
Co-operative Appellate Court, Mumbai, Bench at
Aurangabad. I am not inclined to interfere in those
fndings of facts bl exercising the writ jurisdiction. In
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view of the same, I fnd no substance in these writ
petition. Hence, following order.
ORDER
Writ Petition No.11061 of 2015 (Hina Shahin
Co-operative Urban Bank Ltd., Beed through
it's Chief Liquidator Vs. Sallad Navidujjama
Sallad Fakrujjama), Writ Petition no.9014 of
2017 (Hina Shahin Co-operative Urban Bank
Ltd., Beed through it's Chief Liquidator Vs.
Mahammad Husain Akbar Husain) and Writ
Petition no.9307 of 2019 (Hina Shahin Co-
operative Urban Bank Ltd., Beed through it's
Liquidator Vs. Shamshir Khan Yasin Khan) are
herebl dismissed.
( V.K. JADHAV, J. )
...
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