Dmk Jaoli Sahakari Bank Ltd. Thru ... vs The Registrar, The Consumer ...
2023 Latest Caselaw 2000 Bom

                                                                                 39 wp 7341 of 2019.doc


                      Rajeshri Aher


                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                              CIVIL APPELLATE JURISDICTION

                                            WRIT PETITION NO. 7341 OF 2019

                      DMK Jaoli Sahakari Bank Ltd. and Anr.               ...Petitioners
                            Versus
                      The Registrar,
                      The Consumer Dispute Redressal Forum,
                      Mumbai Suburban District Bandra and Anr.            ...Respondents
                                                       ....
                      Mr.Pradeep Gole a/w. Mr.Suraj Shejwal, Advocate for Petitioners.
                      Mr.A.P. Vanarse, AGP for Respondent No.1-State.
                                                       ....

                                                       CORAM      : K. R. SHRIRAM &
                                                                    RAJESH S. PATIL, JJ.

                                                       DATED      : 1st MARCH 2023
                      P.C.:

                      1                Petitioners are seeking a writ of mandamus and/or a writ,

order or direction in the nature of mandamus directing Respondent

No.1 to execute and comply with the remittance order dated 21 st

November 2016, passed by the Special Recovery Officer who is

Petitioner No.2.

2 Petitioner No.1 is a Co-operative Bank registered under the

provisions of Maharashtra Co-operative Societies Act, 1960 (the said

Act). Petitioner No.2 is Special Recovery Officer appointed under the

RAJESHRI PRAKASH said Act. Respondent No.2 had approached Petitioner No.1 for cash AHER Digitally signed by

credit loan facility, which was granted. The facility amounting to RAJESHRI PRAKASH AHER Date: 2023.03.04 18:52:37 +0530

39 wp 7341 of 2019.doc

Rs.30,00,000/-, was renewed for the period 16th December 2002 to 15th

December 2003. Respondent No.2 executed all necessary loan

documents. Respondent No.2 also executed mortgaged deed dated 17 th

October 2002 in respect of Flat No.401, Laxmi Narayan Co-operative

Housing Society Limited, Natwarnagar No.1, Jogeshwari (East),

Mumbai-400 060, and an Industrial Gala No.102 Shakti Industrial

Estate, Daman Road, Vapi, Daman, as security for repayment of the said

loan. As per the loan agreement, Respondent No.2 also insured the

mortgaged property with New India Assurance Company Limited, for

the period 14th December 2001 to 13th December 2002. On 5th

November 2002, a fire took place at the Industrial Gala. The claim of

Respondent No.2 was rejected by the Insurance Company. Subsequently,

Respondent No.2 stopped repaying the loan and Petitioners took steps

to recover under the provisions of the said Act read with Maharashtra

Co-operative Societies Rule, 1961.

3 The Special Officer passed necessary order of attachment.

4 In the meanwhile, Respondent No.2 had filed a complaint

with the District Consumer Dispute Rederssal Forum, Mumbai and the

Consumer Court by an order and judgment dated 29 th January 2014,

directed New India Assurance Company Limited and Petitioner No.1 to

pay jointly a sum of Rs.14,00,000/- with 12% p.a. interest. It is not

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clear why Petitioner No.1 was involved. Pursuant thereto, the New India

Assurance Company deposited the sum of Rs.30,28,371/- with the

Consumer Court.

5 Respondent No.2 never challenged the recovery certificate

issued by Petitioner No.2, and as per the recovery certificate issued,

Respondent No.2 is liable to pay a sum of Rs.85,76,000/- to Petitioner

No.1 as on 31st December 2018.

6 Petitioners forwarded the recovery certificate and

remittance order dated 21st November 2016 to Respondent No.1, the

Consumer Dispute Redressal Forum, but the amount was not paid.

Hence, this Petition.

7 Respondent No.1 has filed an affidavit-in-reply through

one Vinayak Ankat Tayade affirmed on 26 th March 2021. Paragraphs 6

and 7 are relevant. In the affidavit-in-reply, Respondent No.1 has

admitted that Petitioner No.1 has filed an Application for recovery

certificate under Section 101 of the said Act, on 24 th February 2006 a

recovery certificate has been issued against Respondent No.2 and others

for a sum of Rs.33,97,394/- and further interest at the rate of 15.5%

p.a. on the principal amount and that Petitioner No.2 by a letter dated

21st June 2016 has requested Respondent No.1 for remittance of the

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amount in accordance with recovery certificate dated 21 st June 2016.

Respondent No.1, however, proceeded to state that Respondent No.2 in

a pending Execution Application No.72 of 2014 under Section 27 of the

Consumer Protection Act, 1986 has preferred an Application on 20 th

August 2018 for getting an amount of Rs.32,00,000/-, which was

disposed on 29th November 2018, with directions to present an

application in the office of Respondent No.1. On 30 th November 2018

Respondent No.2 has preferred such an application for releasing the

amount deposited in the account of Respondent No.1 and that

application is still pending. We are not aware of the status of the said

Application as on date because Mr.Vanarse states has no instructions

from Respondent No.1.

8 We do not think it is necessary to go into the Application

that Respondent No.2 has preferred before Respondent No.1, because

the fact is there is a recovery certificate against Respondent No.2, and

Petitioners have filed the recovery certificate together with remittance

order with Respondent No.1. Respondent No.2 had appeared before this

Court on 30th March 2021. It appears he appeared for the first time on

that day because in the earlier orders, there is no appearance of

Respondent No.2 mentioned. Respondent No.2 sought time to file reply

and one week time was granted. Petitioners were to file a rejoinder

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within a week thereafter and the Petition was directed to be listed on

20th April 2021. On 13th September 2021, a noting in the farad sheet

shows that Respondent No.2 has not filed any reply. On 14 th September

2021, Respondent No.2 did not remain present and Petitioners were

directed to give notice. Mr. Gole states notice has been given.

9 Till date, no affidavit-in-reply has been filed by

Respondent No.2. As noted earlier, there is a recovery certificate in

favour of Petitioners against Respondent No.2. If the amount lying with

Respondent No.1 is paid over to Respondent No.2, the chance of

Petitioners recovering any amount from Respondent No.2 would be nil.

Since Respondent No.2 also has not filed any affidavit opposing the

Petition, in our view, the Petition has to be allowed. Petition allowed in

terms of prayer Clause (a) and it reads as under:

"(a)This Hon'ble Court may be please to issue writ of mandamus and/or any appropriate writ or directions in the nature of mandamus thereby directing the Respondent No.1 to execute and comply with the remittance order dated 21-11-2016 passed by the Special Recovery Officer;"

10 Respondent No.1 is directed to release the amount lying

with Respondent No.1 together with accumulated interest, if any, within

two weeks on receiving an Application from Petitioners.

11 All to act on authenticated copy of this order though we

direct Registry to issue certified copy expeditiously.

                                                        39 wp 7341 of 2019.doc


12          Petition disposed accordingly.




(RAJESH S. PATIL, J.)                        (K. R. SHRIRAM, J.)