[Cites 8, Cited by 0]
Bombay High Court
Khalil Khan Mustafa Khan vs The State Of Maharashtra Through Its ... on 1 December, 2025
2025:BHC-AUG:32939
WP-6622-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6622 OF 2022
Khalil Khan Mustafa Khan,
Age: 48 years, Occu: Service,
R/o. Near National High School,
Bhusawal Dist - Jalgaon. ....Petitioner
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Co-operation Department,
Mantralaya Mumbai - 32.
2. The District Deputy Registrar,
Co-operative Societies Jalgaon,
At Jalgaon.
3. The Assistant Registrar,
Co-operative Societies Bhusawal,
At Bhusawal.
4. The Santoshi Mata Merchant Co-operative,
Credit Society Ltd.
Bhusawal Tq. - Bhusawal,
Dist - Jalgaon
Through its Manager.
5. The Santoshi Mata Merchant Co-operative,
Credit Society Ltd.
Bhusawal Tq. - Bhusawal,
Dist. - Jalgaon,
Through its Special Recovery Officer. .....Respondents
______________________________________________________________
Appearance :
Mr. A. G. Talhar, Advocate for the Petitioner.
Ms. A. S. Deshmukh, AGP for Respondent Nos.1 to 3 - State
Mr. K. B. Jadhav, Advocate for Respondent Nos.4 and 5
______________________________________________________________
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CORAM : NEERAJ P. DHOTE, J.
RESERVED ON : 14th November, 2025
PRONOUNCED ON : 1st December, 2025
FINAL ORDER :
1. This Petition under Article 227 of the Constitution of
India is directed against the order dated 26/06/2016 and
consequent order of attachment dated 14/08/2018, passed by
Respondent No.3 - Assistant Registrar and Respondent No.5 -
Special Recovery Officer, respectively pursuant to the provisions
of Section 101 of the Maharashtra Co-operative Societies Act,
1960 (hereinafter referred to as 'the said Act') and Rule 107(10)
of the Maharashtra Co-operative Societies Rules, 1961
(hereinafter referred to as 'the said Rules'), respectively.
2. The Petitioner, a businessman running a shop of
ready-made clothes at Bhusawal, took a loan of Rs.10 Lakhs for
business purpose from Respondent No.4 - Society on
16/06/2008. As the Petitioner failed to repay the loan, the
Respondent No.4 - Society filed an Application before
Respondent No.3 - Assistant Registrar for recovery of loan. The
notices were issued to the Petitioner and the Guarantor in the
said proceedings of recovery under Section 101 of the said Act.
The Petitioner filed his response. By the impugned Order, the
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Respondent No.3 - Assistant Registrar issued the recovery
certificate against the Petitioner. Consequently, the attachment
order came to be issued by Respondent No.5 - Special Recovery
Officer. Being aggrieved by the same, the Petitioner approached
this Court in this Petition.
3. Heard the learned Advocate for the Petitioner and the
learned Advocate for the contesting Respondent Nos.4 and 5.
Perused the papers on record.
4. It is submitted by the learned Advocate for the
Petitioner that, though the Petitioner filed his response to the
proceedings initiated by the Respondent No.4 - Society for
recovery of loan, the Respondent No.3 - Assistant Registrar did
not consider the same. The Petitioner had already repaid the
loan, and therefore, the proceedings should not have been
initiated. The Respondent No.4 - Society filed the proceedings
against the Petitioner for the offence punishable under Section
138 of the Negotiable Instrument Act, 1881 (hereinafter referred
to as 'the N. I. Act'), which resulted in the acquittal of the
Petitioner with the observations that, the pass book show that,
the Petitioner / Accused therein has already paid the loan
amount to the Society in the year 2008. Since there are
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disputed questions of fact, the Respondent No.3 - Assistant
Registrar will have no jurisdiction to entertain the proceedings
under Section 10, and the only remedy was the dispute before
the Co-operative Court. There was complete violation of Rule 86-
F of the said Rules by the Respondent No.3 - Assistant Registrar.
The impugned order and the consequent attachment order needs
to be set aside and the Petition be allowed. In support of his
contention, he relied on the Judgments in (i) Bhanudas @
Suryabhan s/o Ramchandra Shinde Vs. State of Maharashtra
and Others; 2022 DGLS (Bom.) 3927, (ii) Sonia Bhalchandra
Godase and Others Vs. The State of Maharashtra and Others
dated 04/11/2025, in Writ Petition No.18117/2024.
5. It is submitted by the learned Advocate for the
Respondent Nos.4 and 5 that, under the said Act, there is an
alternate remedy to the Petitioner to file Revision Application
under Section 154 of the said Act before the Joint Registrar, and
without availing the said remedy, the Petitioner has approached
this Court, and therefore, this Petition need not be entertained.
The reply affidavit was filed on behalf of Respondent Nos.4 and 5.
In response filed by the Petitioner to the proceedings under
Section 101 of the said Act, there is no whisper that, the
Petitioner has repaid the loan. The Petitioner was not present
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before the Respondent No.3 - Assistant Registrar at the time of
final hearing. No case exists to interfere with the impugned
order and the Petition be dismissed. In support of his
contentions, he cited the Judgments in (i) Leelavathi N. and
Others Etc. Vs. State of Karnataka and Others Etc.; 2025 DGLS
(SC) 1329, and (ii) Tarulata Amritlal Bava Vs. State of
Maharashtra and Others; 2023 DGLS (Bom.) 25.
6. In Bhanudas @ Suryabhan Ramchandra Shinde
(Supra), this Court, by considering the previous Judgments,
observed that, it is now a well established law that, if the
proceedings before statutory authority are de horse jurisdiction,
this Court would be justified in entertaining the writ petition
under Article 226 of the Constitution of India even if alternate
remedy is available.
7. In Sonia Bhalchandra Godase and Others ( Supra), the
Petition was directed against the order and recovery certificate
under Section 101 of the said Act and similar point of alternate
remedy was raised. This Court considered the matter by
observing that, the order impugned was without any reasons and
the recording of reasons is one of the important facet of the
principles of natural justice and entertained the Petition and set
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aside the order impugned therein and relegated the matter to
the concerned Registrar.
8. In Leelavathi N. and Others Etc. (Supra), the subject
matter was the service matter and the issue of entertaining the
writ petition despite availability of alternate remedy was for
consideration and it was observed that, in a service dispute
covered by the Administrative Tribunals Act, 1985, it will not be
open for the litigant to directly approach the High Courts. The
various previous Judgments are considered therein and it is
observed that, nevertheless, a writ petition under Article 226
may still be maintainable notwithstanding the existence of such
an alternative remedy in exceptional circumstances, including
the enforcement of fundamental rights guaranteed under Part III
of the Constitution; instances of ultra vires or illegal exercise of
power by a statutory authority; violation of the principles of
natural justice; or where the vires of the parent legislation itself
is under challenge.
9. In Tarulata Amritlal Bava ( Supra), the challenge in
the Writ Petition under Article 227 of the Constitution of India
was the recovery certificate issued by the concerned Deputy
Registrar and the objection of alternate remedy was raised and
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considered. The observations made in the said Judgment show
that, the Petitioner therein had already availed the remedy of
Revision and also filed the Writ Petition and it was held that, the
proceedings under Articles 226 and 227 of the Constitution of
India would be untenable when already recourse to remedy of
Revision was availed by the Petitioner.
10. Coming to the case at hand, one of the Petitioner's
contention is violation of principles of natural justice while
passing the impugned order. In Paragraph No.8 of the Petition, it
is specifically averred that, on 29/02/2016, the Respondent No.3
- Assistant Registrar directed to produce the original passbook,
however further date of hearing in the proceedings was not
given and on 03/06/2016, the Respondent No.3 - Assistant
Registrar issued notice to the Petitioner and directed to remain
present, however the date of hearing was shown blank in the
said notice. The said contention in Paragraph No.8 is responded
to by the Respondent Nos.4 and 5 in their Affidavit-in-Reply by
stating that, the contents of Paragraph No.8 were not true and
correct and sufficient and proper opportunity was granted to the
Petitioner. Copies of Roznama of the proceedings under Section
101 of the said Act before the Respondent No.3 - Assistant
Registrar are enclosed to the Petition. Perusal of the Roznama
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dated 29/02/2016 show that, the said contention of the learned
Advocate for the Petitioner that, no further date was given in the
proceedings, is well founded. The Roznama dated 10/06/2016
notes that, the Borrower, the Guarantor, and the Advocate were
absent, and it speaks of the final notice by Registered Post A.D.
11. Perusal of the impugned order show that, in first
Paragraph, there is mention of the dates on which the
proceedings were kept, and appearance of the parties, providing
the copy of the account statement to the learned Advocate for
the Petitioner and absence of the Petitioner, the Guarantor at the
time of hearing. The second Paragraph speak of public notice
published in the news papers pursuant to the directions of this
Court in another Writ Petition, which, according to the learned
Advocate for the Petitioner was in respect of dealing the matters
by the Assistant Registrar of the next station due to the
unavailability of the Assistant Registrar at the concerned
Station, and presence of the Petitioner and his Advocate on
29/02/2016 with their contention that, the loan was made nil,
which was controverted by the Advocate for Respondent No.4 -
Society and further that, the final hearing notice dated
10/06/2016, on which date, the Petitioner and his Advocate were
absent and Respondent No.5 - Special Recovery Officer was
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present and that as per the account statement, the loan was
unpaid and was responsibility of the Petitioner to repay the loan
and passed the operative order.
12. There is no dispute that, the Petitioner had filed his
written response before Respondent No.3 - Assistant Registrar
to the proceedings under Section 101 of the said Act and also
filed his written objection in respect of maintainability of the
proceedings for recovery under Section 101 of the said Act.
However, the impugned order nowhere refers to the same. The
provision of Rule 86-F of the said Rules provides for reasoned
Judgment and order for the grant or rejection of the Application
under Section 101 of the said Act. On going through the
impugned order, it is clear that, it is sans reasons and not in
conformity with the said rule. Further, the impugned order is
passed without hearing the Petitioner. This indicate that, for
want of knowledge of the next date in the proceedings, as no next
date was shown in the Roznama dated 29/02/2016, the further
proceedings were in absence of the Petitioner. Under such
circumstances, the objection raised by the learned Advocate for
Respondent Nos.4 and 5 in respect of dismissing the Writ
Petition on the ground of alternate remedy cannot be accepted.
In the light of the aforesaid aspects in the matter, the impugned
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order and consequent attachment order are unsustainable in
law. Without going into the merits of the matter, the appropriate
course is to relegate the matter to the Respondent No.3 -
Assistant Registrar for re-consideration and decision in
accordance with law. Hence, the following order:
ORDER
(I) The Writ Petition is partly allowed.
(II) The impugned order dated 26/06/2016 and the consequent
order of attachment dated 14/08/2018, are quashed and set
aside.
(III) The matter is remanded back to the Respondent No.3 -
Assistant Registrar for re-consideration after hearing both
the sides and deciding the same, in accordance with law
within a reasonable period.
(IV) The parties shall appear before the Respondent No.3 -
Assistant Registrar on 8th December, 2025.
(V) Writ Petition stands disposed off accordingly.
[NEERAJ P. DHOTE, J.]
Sameer/November-2025
