Najir Shamshoddin Mulani And Ors vs Shivshakti Nagari Pat-Sanstha ...
2023 Latest Caselaw 9199 Bom

                                                               50-wp-10845-2023.doc
Sonali


                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CIVIL APPELLATE JURISDICTION

                             WRIT PETITION NO.10845 OF 2023


         Najir Shamshoddin Mulani & Ors.                      ...Petitioners
             Versus
         Shivshakti Nagari Pat-Sanstha Ltd.                   ...Respondent


         Mr. S. T. Bhosale, for the Petitioners.


                                  CORAM : MADHAV J. JAMDAR, J.

DATED : 4th SEPTEMBER 2023

P.C. :

1. Heard Mr. Bhosale, learned counsel appearing for the

Petitioners. The Petitioners are challenging by invoking power

of this Court under Article 227 of the Constitution of India, the

legality and validity of order dated 25 th May 2023 passed by

the learned Judge, Co-operative Court, Solapur in

Miscellaneous Application No.22 of 2022.

2. Before considering the challenge to the legality and

validity of the impugned order, it is necessary to set out certain

factual aspects:-

i. The Respondent-society filed Co-operative Case No.1501

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of 2006 in the Co-operative Court at Solapur under Section 91

of the Maharashtra Cooperative Societies Act, 1960

(hereinafter after referred to as "the said Act") seeking award

of amount of Rs.1,62,896/-. Out of the said amount,

Rs.1,08,647/- was the principal amount and Rs.54,049/- was

the interest.

ii. It appears that inspite of notice, the present Petitioners

i.e. Opponents have remained absent therefore, an ex-parte

award was passed by the learned Judge, Co-operative Court,

Solapur on 17th June 2013 for an amount of Rs.1,62,896/- due

as on 31st October 2006 together with future interest at the rate

of 21% per annum w.e.f. 1 st November 2006 till realization of

the entire loan amount.

iii. The Petitioners filed Miscellaneous Application No.12 of

2017 seeking condonation of delay in filing the application for

setting aside the said ex-parte judgment and award. The said

Miscellaneous Application No.12 of 2017 was allowed by order

dated 11th June 2018. By said order, stay was granted to the

execution of the ex-parte judgment and award on the condition

that the Petitioners deposit an amount of Rs.70,000/- with the

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society within 8 days from the date of said order.

iv. As the delay was condoned, Miscellaneous Application

No.18 of 2018 was taken out for setting aside the said ex-parte

judgment and award. By order dated 11 th February 2022

passed by the learned Judge, Co-operative Court, Solapur, the

said Miscellaneous Application No.18 of 2018 taken out for

setting aside ex-parte judgment and award dated 17 th June

2013 was allowed. The said ex-parte judgment and award was

set aside, subject to condition of depositing 25% of the award

amount to the society in the loan account within a period of two

months from the date of that order. By the said order, it has

been held that the said deposit shall be subject to the final

decision of the original dispute.

v. Thereafter, the present Petitioners filed Miscellaneous

Application No.22 of 2022 praying that the delay in depositing

said 25% amount be condoned. However, in the application in

paragraph 2, it is contended that as Rs.70,000/- was already

paid, the balance awarded amount is Rs.92,896/- and therefore,

25% of that amount i.e. Rs.23,224/- and the same be allowed to

be deposited. By the impugned order dated 25th May 2023, the

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learned Judge, Co-operative Court, Solapur allowed the said

Miscellaneous Application No.22 of 2022 and granted

permission to deposit said 25% amount of Rs.1,62,896/- and

not the amount as per the calculation of the Petitioners and

further directed that as the Petitioners have caused delay in

depositing the amount, they are held liable to pay interest on

the said amount at the rate of 9% per month and interest shall

be calculated from 22nd February 2022 till date on which the

Applicant deposit the amount.

3. The factual position on record clearly shows that the ex-

parte judgment and award was passed on 17 th June 2013 for an

amount of Rs.1,62,896/- which was due on 31 st October 2006

together with future interest at the rate of 21% w.e.f. 1 st

November 2006 till realization of the entire loan amount. It has

been observed in the various orders that the Petitioners have

accepted that they had availed loan for the said amount and

also that they have defaulted. As per the said ex-parte

judgment and award, there is huge outstanding as neither the

full principal amount nor the interest has been deposited.

4. It is further significant to note that while condoning the

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delay in applying for setting aside ex-parte judgment and

award, the learned Judge, Cooperative Court directed payment

of Rs.70,000/-, which is not even the entire principal amount.

While setting aside the ex-parte judgment and award, the

learned Judge has imposed condition of deposit of 25% of the

amount which has been awarded. In the impugned order, the

learned Judge has held that the 25% of Rs.1,62,896/- should be

deposited within one month and for delay, the interest should

be paid by the Petitioners at the rate of 9% per annum from

22nd April 2022 till the date on which the Petitioners deposits

the said amount. There is no illegality or perversity in the

impugned order. Therefore, the interference by this Court

under Article 227 of the Constitution of India is not warranted.

5. In the facts and circumstances of this case and in the

interest of justice, the Petitioners are granted four weeks time

to comply with order dated 25th May 2023 passed by the

learned Judge, Co-operative Court, Solapur.

6. Subject to above, the Writ Petition is dismissed however,

with no order as to costs.

[MADHAV J. JAMDAR, J.]

Signed by: Sonali Patil Designation: PA To Honourable Judge Date: 06/09/2023 17:37:28