At the outset, the crux of the matter is that although alternate statutory remedy was available with Respondent Nos. 1 and 2 herein, under Section 154 (1) of the Cooperative Act, of filing appeal or revision before the State Government, as held by the Hon'ble Supreme Court in the case of Arun Khanjire (supra), it appears that without resorting to the said alternate statutory remedy, Resp.Nos.1 and 2 herein have filed writ petition No.2957 of 2009 under Article 227 of the Constitution of India, and obtained interim relief by way of impugned order dated 8.9.2009, which appears to be with a view to avoid deposit/payment of 50% of the amount due under the recovery certificate obtained by the appellants herein u/Sec.101 of the Cooperative Act, against present Resp. Nos. 1 and 2, in accordance with Sec.154(2A) of Co-operative Societies Act.
Print Page
Bombay High Court
The Maharashtra Nagri Sahakari ... vs Ravindra on 29 October, 2010
Bench: S.B. Deshmukh, Shrihari P. Davare
01. Admit. By consent of learned counsel for the parties, Letters Patent Appeal is taken up for final hearing.
02. This Letters Patent Appeal is preferred by the appellants (original Respondent Nos.4 and 5 in Writ Petition No.2957 of 2009), challenging the order dated 8.9.2009 passed by the learned Single Judge of this Court in the said writ petition, granting Rule and stay to execution, implementation and operation of the recovery certificate dated 21.2.2009 issued by the Assistant Registrar, Co-operative Societies under Section 101 of the Maharashtra Cooperative Societies Act, 1960 ("for brevity, hereinafter referred as the "Cooperative Act"), under Clause XV of the Letters Patent.
03. The facts in nutshell are that the present appellant No.1 is a cooperative bank i.e. financialinstitution and appellant No.2 is its Special Recovery and Sales Officer. Respondent No.1 and 2 herein are original writ petitioners. Respondent No.1 herein availed overdraft facility from appellant No.1, on 25.7.1997. However, in spite of repeated requests and reminders, he deliberately avoided to make repayment thereof and hence, the appellants filed dispute against him before the cooperative court, for recovery of the amount, but the said proceedings were withdrawn by the appellants with a view to initiate proceedings under Section 101 of the Cooperative Act.
04. Accordingly, the appellants herein initiated proceedings under Section 101 of the Co-operative Act against present respondent No.1, since he ignored to make repayment of the overdraft amount due, in spite of repeated requests and reminders. Moreover, notice issued by the Assistant Registrar was also avoided by respondent No.1 herein and hence, paper publication came to be issued to make him aware about the proceedings initiated by appellants against him.
However, respondent No.1 avoided to participate in the said recovery proceedings in spite of due service of notice on him and hence, certificate under Section 101 of the Co-operative Act came to be issued against him for an amount of Rs.9,45,548/=, on 21.2.2009.
Pursuant to the said recovery certificate, the appellants herein issued final demand notice to present Respondent No.1 and 2 under Rule 107 of the Maharashtra Cooperative Societies Rules, on 24.4.2009. Moreover, Resp.Nos.1 and 2 herein were also served with the notice dated ig 25.4.2009 issued by the present appellants.
05. However, in stead of making repayment as per the recovery certificate dated 21.2.2009, Respondent Nos.1 and 2 herein filed Writ Petition No.2957 of 2009 before this court and assailed the said recovery certificate, as well as demand notices dated 24.4.2009 and 25.4.2009, therein. The appellants herein appeared in the said writ petition and filed the affidavit in Reply opposing the same vehemently, contending that the said petition was not maintainable and same deserves to be dismissed, in view of availability of alternate efficacious statutory remedy to the petitioners i.e. present respondents Nos.1 and 2 by filing appeal or revision under Section 154 (1) of the Co-operative Act.
However, the learned Single Judge, by order dated 8.9.2009, issued Rule in the said writ petition and also granted interim relief in favour of the petitioners i.e. present respondent Nos.1 and 2, in terms of prayer clauses (H) and (I) thereof, and thereby stayed implementation, operation and execution of the notice dated 25.4.2009, as well as directed that no coercive action ig be taken against the present respondent Nos.1 and 2, in pursuance of the recovery certificate dated 21.2.2009. Being aggrieved and dissatisfied by the said order dated 8.9.2009 passed by the learned Single Judge in the said writ petition No. 2957 of 2009, original Respondents No.4 and 5 i.e. present Appellants have preferred present Letters Patent Appeal, assailing the impugned order dated 8.9.2009, and prayed for quashment thereof.
06. It is the matter of record that the notices of present Letters Patent Appeal have been served upon Respondent Nos.1 and 2 herein (original petitioners), but they failed to appear and chose not to contest the appeal, whereas learned Assistant Govt.Pleader appeared for Respondent Nos. 3 to 5 (Original Resp. Nos.1 to 3), by waiving service of notice of the Letters Patent Appeal, and advanced submissions on their behalf.
07. Heard learned counsel for respective parties.
Mr. Sachin Deshmukh, learned Counsel for the appellants, canvassed that the learned Single Judge, while passing the impugned order dated 8.9.2009, ought to have taken into consideration that the alternate efficacious statutory remedy of appeal or revision was available to the petitioners i.e. present respondent Nos.1 and 2, under Section 154(1) of the Co-operative Act,but without resorting to the said alternate remedy, respondent Nos.1 and 2 herein had filed writ petition No.2957/2009, with a view to avoid to deposit/payment of 50% amount due under the recovery certificate as per Sec.154(2A) of Cooperative Societies Act,therefore, the learned Single Judge should not have entertained the said writ petition and should not have granted interim relief, therein. To substantiate the said contention, learned Counsel for the appellants relied upon the case decided by the Division Bench of this Court, i.e. Kausalya Sampt vs.Vasant Sahakari Bank Ltd. reported in 2004 (6) Bom.C.R. 651, in paragraph 14 whereof, the learned Division Bench upheld the validity of Sub-section (2-A) of Section 154 of the Co-operative Act, which reads thus:
"14. In the light of the consistent view of the Honourable Supreme Court of India interpreting a similar provision in large number of statutes which are in para materia to the provisions of sub-section (2-A) of section 154 of the Maharashtra Co-operative Societies Act, 1960, we are of the view that the provisions of sub-section (2-A) ofsection 154 are constitutionally valid and are not violative of the petitioner's fundamental rights under Articles 14 and 19 of the Constitution of India. We are also of the opinion that the case of Mardia Chemicals Ltd. and others (supra) has no application to the facts of the present case. The aid case was not appellate or revisional proceedings but were original proceedings and, therefore, imposition of a condition of deposit of dues was held to be impermissible in law. The present case is not of a original proceeding and, therefore, we are of the view that the judgment in the case of Mardia Chemicals Ltd. and others, do not apply herein. We therefore uphold the validity of said sub- section (2-A) of section 154 of the Maharashtra Co- operativeSocieties Act, 1960)."
08. Mr.Sachin Deshmukh, learned counsel for the appellants, also relied upon the case of Arun Khanjire vs. Ichalkaranji Urban Coop. Bank Ltd., (2009) 2 SCC 187, wherein, in para 19, it is held that, "Admittedly, Section 154 (1) of the above Act confers revisionary powers on the State Government and also the Registrar of Cooperative Societies under the Act. It also empowers the State Government or the Registrar to satisfy themselves as to the legality or the propriety of any such decision or order and to modify, annul or reverse the same after giving the person affected thereby an opportunity of being heard either suo motu or on an application."
09. Accordingly, learned counsel for the appellants urged that the alternate statutory remedy was available to the respondents herein under Section 154 (1) of the Co-operative Act and, therefore, writ petition No.2957 of 2007 was not maintainable and, consequently, the impugned order dated 8.9.2009 passed therein granting interim relief by the learned Single Judge deserves to be quashed and set aside.
10. Besides that, the learned Counsel for the appellants also invited our attention to the order passed on 28.7.2009 by the same learned Single Judge in another Writ Petition No.4905 of 2009 (Jaiprakash versus The Jalgaon district Medicine Dealers' Urban Co-operative Credit Society Ltd.) in similar circumstances, and a copy whereof is annexed at Exh.A (page 47) of present Letters Patent Appeal, wherein the same learned Single Judge has referred to the aforesaid judgment of the Hon'ble Supreme Court in the case of Arun B. Khanjire (supra) and observed that since the alternate remedy under Section 154 of the Co-operative Act, 1960, is available to the petitioner therein, the said petition was not maintainable and consequently, dismissed the said petition, but pertinently, the same learned Single Judge has taken a different view, while passing the impugned order dated 8.9.2009 in Writ Petition No.2957 of 2009 and issued Rule therein and granted interim relief against the present appellants, which is not in consonance with the judicial discipline. The learned counsel for the appellants, therefore, urged that the impugned order dated 8.9.2009 passed by the learned Single Judge in Writ Petition No. 2957 of 2009, deserves to be quashed and set aside.
11. As mentioned hereinabove, Respondent Nos.1 and 2 herein remained absent, although they were duly served with the proceedings of present Letters Patent Appeal. Shri V.B.Ghatge, learned A.G.P. for Respondent Nos.3 to 5 submitted to the orders of the court.
12. We have perused the contents of present Letters Patent Appeal, its annexures and the impugned order dated 8.9.2009 passed by the learned Single Judge in Writ Petition No.2957 of 2009, and also heard submissions advanced by learned counsel for the appellants and learned A.G.P. for Respondent Nos.3 to 5, anxiously.
13. At the outset, the crux of the matter is that although alternate statutory remedy was available with Respondent Nos. 1 and 2 herein, under Section 154 (1) of the Cooperative Act, of filing appeal or revision before the State Government, as held by the Hon'ble Supreme Court in the case of Arun Khanjire (supra), it appears that without resorting to the said alternate statutory remedy, Resp.Nos.1 and 2 herein have filed writ petition No.2957 of 2009 under Article 227 of the Constitution of India, and obtained interim relief by way of impugned order dated 8.9.2009, which appears to be with a view to avoid deposit/payment of 50% of the amount due under the recovery certificate obtained by the appellants herein u/Sec.101 of the Cooperative Act, against present Resp. Nos. 1 and 2, in accordance with Sec.154(2A) of Co-operative Societies Act.
14. Moreover, constitutional validity of Section 154 (2-A) of the Maharashtra Cooperative Societies Act, 1960, has been upheld by the Division Bench of this Court by judgment delivered in the case of Kausalya Sampat vs. Vasant Sahakari Bank (supra).
15. Apart from that, as pointed out by learned counsel for the appellants, the learned Single Judge, while dealing with Writ Petition No.4909 of 2009 and passing the order dated 28.7.2009 therein, which is at Exh.A (page 47) of the present appeal, has relied upon above referred judgment of the Hon'ble Supreme Court in the case of Arun Khanjire (supra), and held that alternate remedy under Section 154 of the Maharashtra Cooperative Societies Act, was available to the petitioner therein and hence, came to the conclusion that the said writ petition (WP 4905 of 2009) was not maintainable and dismissed the same, but while dealing with present Writ Petition No. 2957 of 2009 and passing the impugned order dated 8.9.2009 therein, it appears that the same learned Single Judge issued Rule and also granted interim relief in favour of the petitioners (present Respondent Nos.1 and 2), although the alternate statutory remedy was available to the said petitioners, under Section 154(1) of the Maharashtra Cooperative Societies Act, of preferring revision before the State Government, which was not opted for by them, which might be with ulterior motive to avoid the deposit/payment igof 50% of the amount due under the recovery certificate obtained by the present appellants, in accordance with Sec.154(2A) of the Co-
operative Societies Act.
16. Under the circumstances, we are of the considered view that the alternate statutory remedy was available to Resps. No.1 and 2 herein, under Section 154(1) of the Cooperative Societies Act,of preferring revision before the State Government, and therefore, filing of writ petition No.2957/2009 under Article 227 of the Constitution of India, by them was unwarranted, and consequently, the impugned order dated 8.9.2009 passed by learned Single Judge therein granting interim relief, deserves to be quashed and set aside.
17. Accordingly, we are inclined to accept the submissions advanced by learned counsel for the appellants herein, and having comprehensive view of the matter, we have no hesitation to come to the conclusion that the present Letters Patent Appeal deserves to be allowed.
18. In the result, present Letters Patent Appeal succeeds and accordingly, same is allowed, and the impugned order dated 8.9.2009 passed by the learned Single Judge in Writ Petition No.2957 of 2009 stands quashed and set aside. No order as to costs.
sd/- sd/-
(SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.)
pnd/lpa209.09
No comments:
Post a Comment