From the discussion made by the learned Civil Judge in the impugned order, it is quite evident that, the learned Judge could not distinguish between the execution of the Award passed under Section 96 of the Act and the recovery certificate issued under Section 101 of the Act. As has been observed by this Court in Vithal Yadav Mhase Vs. Amdar Balasaheb Thorat Nagari Sahakari Path Sanstha Maryadit, MANU/MH/0341/2001 : 2001 (3) Mh.L.J. 650, where recovery certificate is issued by Registrar under Section 101 (1) of the Maharashtra Co-operative Societies Act, 1960, the mode prescribed for recovery of the amount is under Section 156 of the said Act and recourse cannot be taken to Section 98 of the said Act, whereas as held by this Court in the case of Onkar Rajaram Wathodkar (cited supra), it is open for the party in whose favour the Award has been passed under Section 96 of the Act to select a particular forum of execution and if the party wants to get the said Award executed like a decree of the Civil Court, the Civil Court of local jurisdiction cannot refuse to execute the said Award.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Writ Petition Nos. 10016, 10017, 10018, 10019, 10020 of 2016,
Decided On: 25.06.2019
Akole Taluka Shikshak Va Shikshakettar Karmachari Gramin Bigar Sheti Sahakari Pat Sanstha Mydt Vs. Punaji
Hon'ble Judges/Coram:
P.R. Bora, J.
Citation: 2019(6) MHLJ 917
1. Since the issue raised is common in all these writ petitions, the common arguments are heard of the parties in all these writ petitions.
2. "Whether the Civil Court can refuse to execute the Award passed by the Co-operative Court under Section 96 of The Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the Act') in a dispute referred to it under Section 91 of the said Act, in respect of which, the Certificate under Section 98 of the Act is issued" is the question for my consideration in the present writ petitions. The learned Jt. Civil Judge, Jr. Division, Akole, Tal. Akole, Dist. Ahmednagar has rejected the execexecutionution applications filed by the petitioner-Patsanstha for want of jurisdiction vide the orders, which are impugned in the present writ petitions.
3. The learned Civil Judge has referred to Sections 95, 96, 98, 156 and 163 of the Act as well as Rule-83 and 107 of The Maharashtra Co-operative Societies Rules, 1961. The learned Civil Judge has relied upon the Judgment of this Court in the case of Satguru Construction Co. Pvt. Ltd. & ors. Vs. Greater Bombay Co-operative Bank Ltd., MANU/MH/0806/2007 : 2007 (5) ALL M.R. 628.
4. After having perused the impugned order as well as the relevant provisions in the Act and Rules thereunder, it is apparently revealed that, the learned Civil Judge has misinterpreted and misconstrued the said provisions. The learned Civil Judge has also failed in appreciating the law laid down by this Court in the case of Satguru Construction Co. Pvt. Ltd. (cited supra).
5. The facts in the present matters reveal that, the petitioner-Patsanstha had filed the disputes against the respondents herein under Section 91 of the Act claiming arrears of the loan with interest thereon from the respondents. In the said disputes the Co-operative Court has passed the Awards under Section 96 of the Act. The material on record further reveals that, subsequently the Certificates under Section 98 (a) of the Act have also been issued in favour of the petitioner-Patsanstha certifying that, the Awards mentioned therein are executable as per the law being in force. The petitioner-Patsanstha, therefore, filed the execution proceedings in the Court of Jt. Civil Judge Jr. Division, Akole by annexing therewith necessary documents. The learned Civil Judge at the time of taking cognizance of the said applications felt that, the question of the jurisdiction of the said Court for executing the said Awards was involved and the learned Judge, therefore, called upon the learned Counsel appearing for the Patsanstha to satisfy the Court as about the jurisdiction of the said Court to entertain such execution applications.
6. The record shows that, though the learned Counsel for the petitioner-Patsanstha argued that the Certificate issued under Section 98 (a) of the Act was liable to be executed as a decree of the Civil Court and as such, the said Court was having jurisdiction to entertain and decide the said applications, the learned Civil Judge rejected the contentions so raised and ultimately vide the impugned orders rejected the said applications.
7. In para-11 of the impugned order, the Trial Court has observed that, "there is no single provision under the said Act, which confer jurisdiction upon the Civil Court to deal with the execution of the Award, which is deemed to be decree under Section 98 (a) of the said Act." The learned Trial Court has supplied emphasis to the observations so made by him. The plain reading of Section 98 (a) of the Act, however, completely negates the aforesaid observations made by the learned Judge. I deem it appropriate to reproduce herein below Section 98 (a) of the Act, which reads thus:
"98. Money how recovered
Every order passed [by the Official Assignee of a de-registered society under sub-section (3) of section 21A or every order passed] by the Registrar or [an authorised officer] by him under Section 88 or by the Registrar [or the Co-operative Court under section 95 [or by the Co-operative Court under section 96], every order passed] in appeal under the last preceding section every order passed by a Liquidator under section 105, every order passed by the State Government in appeal against orders passed under section 105 and every order passed [by the State Government or by the Registrar in revision under section 154 or every order passed by the Registrar for recovery under this Act shall], if not carried out,-
(a) On a certificate signed by [the Official Assignee or] the Registrar [or the Co-operative Court] or a Liquidator, be deemed to be a decree of a Civil Court, and shall be executed in the same manner as a decree of such Court, or
Provided that, any application for the recovery in such manner of any such sum shall be made by the Collector, and shall be accompanied by a certificate signed by the Registrar [or Co-operative Court]. Such application shall be made within twelve years from the date fixed in the order and if no such date is fixed, from the date of the order."
8. Similar issue was for consideration in the case of Onkar Rajaram Wathodkar Vs. Ramnarayan Khatod & Sons, MANU/MH/0545/1983 : 1984 Mh.L.J. 453, wherein this Court has held that,
"Section 98 (a) of the Maharashtra Co-operative Societies Act clearly lays down that an award passed under the Co-operative Societies Act is executable like a decree in a civil Court. The award is not required to reach the civil Court through the agency of the Registrar but after obtaining a certificate from the Registrar, it can be executed directly. If any award is to be made executable like a decree of the civil Court by the provisions of law, only an application to the civil Court of local jurisdiction will be necessary. Thus the civil Court of local jurisdiction is empowered to execute the award like a decree of the civil Court. It is obvious from section 98 and Rule 83 of Maharashtra Co-operative Societies rules, 1961 that the choice of the forum is of the party and not of the Registrar. It is open for the party in whose favour the award has been passed to select a particular forum of execution. Whenever a certificate is issued by the Registrar, it merely enables the party to take out execution through an application to the Court of local jurisdiction wherein the judgment-debtor resides or carries on business or personally works for gain."
9. In the case of Satguru Construction Co. Pvt. Ltd. (cited supra), the respondent bank had obtained the certificate under Section 101 of the Act and the same was sought to be executed as the decree of the civil Court. The proceeding was moved before the learned Single Judge for execution of the recovery certificate and the proceedings were sought to be proceeded with in terms of Rule-37 of Order-21 of the Code of Civil Procedure. The warrant of arrest was sought to be issued against the borrowers therein and such a warrant was issued by the learned Single Judge. The said order passed by the learned Single Judge was challenged in an appeal before the Division Bench, which set aside the said order. Relying on the said Judgment, the learned Civil Judge in the instant matter has recorded a finding that, the Award passed by the Co-operative Court in a dispute under Section 91 of the Act, in respect of which, certificate under Section 98 (a) of the Act was issued, was not liable to be executed by the Civil Court.
10. The learned Civil Judge failed in appreciating the import of the observations made and the conclusions recorded by the Division Bench of this Court in the case of Satguru Construction Co. Pvt. Ltd. (cited supra), I deem it appropriate to reproduce herein below paras-8 to 12 of the said Judgment, which read thus:
"8. The provisions of law comprised under Section 101(3) clearly provide that a certificate granted by the Registrar under Sub-section (1) or (2) shall be final and a conclusive proof of the arrears stated to be due thereunder and the same shall be recoverable according to the law for the time being in force, for the recovery of land revenue. Further Section 156(1)(e) specifically provides that the Registrar or any officer subordinate to him and empowered by him in this behalf or an officer of such society as may be notified by the State Government, who is empowered by the Registrar in this behalf may, subject to such rules as may be made by the State Government, but without prejudice, to any other mode of recovery provided by or under the said Act, recover any amount due under a certificate granted by the Registrar under Sub-section (1) or (2) of Section 101 or under Subsection (1) of Section 137, together with interest, any, due on such amount or sum and the costs of process according to the scales of fees laid down by the Registrar from time to time, by the attachment and sale or by sale without attachment of the property of the person against whom such decree, decision, award or order has been obtained or passed. Undisputedly, Rule 107 of the Maharashtra Co-operative Societies Rules, 1961, hereinafter called as "the said Rules" makes elaborate provisions of law for attachment and sale as well as all the other modes for executing a recovery certificate issued under Section 101(1) or (2) of the said Act. It is true that Section 156 specifies that the proceedings for recovery of any amount due under the recovery certificate shall be without prejudice to any other mode of recovery. However, the proviso thereto clarifies that the other mode spoken of refers to the mode provided by or under the said Act and not under any other Act or statute.
9. The provisions of law comprised under Section 156 of the said Act r/w Rule 107 of the said Rules therefore clearly provide that when any recovery certificate is issued under Section 101 of the said Act, the execution or the actual recovery of the amount in terms of such certificate has to be in the manner prescribed under the rules framed by the State Government under the said Act and in fact the Government has framed rules in that regard, and not under any other provision, nor by the authority other than the one specified under the said Act and the said Rules. The provisions of Rule 107 of the said Rules clearly incorporate the detailed procedure for execution of such recovery certificate.
10. Section 163 of the said Act clearly provides that save as expressly provided under the said Act, no Civil or Revenue Court shall have any jurisdiction in respect of any dispute required to be referred to the Co-operative Court, for decision, and all orders, decisions or awards passed in accordance with the said Act or the rules made thereunder shall be final and not liable to be challenged or set aside or modified or revised or declared void by any Court upon the merits or upon any other ground whatsoever. It is settled law that the execution proceeding is continuation of a suit. Once it is clear that no suit is maintainable for settling dispute which could be referred to the decision of the Co-operative Court, and further the provisions of law comprised under Section 101 r/w Section 156 clearly provide that recovery certificate issued thereunder is executable in terms of the provisions of law comprised under Section 156 and the rules made in that regard by the Government, and the Government having made rule in that respect being Rule 107 of the said Rules, it would not be open for the parties to adopt a mode different than the one specifically provided under the said Act r/w the said Rules. Once the statutory provisions specifically provide the mode for execution of a recovery certificate and to recover the dues in terms of such certificate, then it is not open for the parties to choose a totally different mode and ignore the mandate of Section 163 of the said Act. The jurisdiction of the civil Court clearly stands ousted in that regard.
11. Being so, the appellants are justified in contending that the learned single Judge could not have entertained the Notice for arrest of the appellants on the alleged ground of refusal to pay the amount in terms of the recovery certificate.
12. The law on the point that the amount due under the recovery certificate can be recovered as arrears of land revenue in terms of the provisions of law, as stated above, being abundantly clear, the impugned order cannot be sustained and is liable to be set aside. Needless to say that this order shall not prevent the respondents from taking appropriate proceedings in accordance with the provisions of law for due execution of the recovery certificate. With these observations, the appeal is allowed and the impugned order is set aside. The Notice No. 1567 of 2005 in Execution Application No. 471 of 2004 in Recovery Certificate Application No. AR./DEP/101/648/1997 is hereby discharged and dismissed. There shall be no order as to costs."
11. From the observations made and calculations recorded as aforesaid by the Division Bench of this Court, it is abundantly clear that, the issue before the Division Bench in the aforesaid matter was the execution of certificate obtained under Section 101 of the Act. In the instant matter, the execution is of an Award passed by the Co-operative Court under Section 96 of the Act in a dispute referred to it under Section 91 of the said Act. I have already reproduced herein above Section 98 (a) of the Act. I also deem it appropriate to reproduce herein below Rule-83 of The Maharashtra Co-operative Societies Rules, 1961.
83. Procedure for execution of awards
(1) Every order or award passed by the Registrar, or the person authorised by him [or the Co-operative Court] under Section 95 or 96 shall be forwarded by the Registrar to the society or to the party concerned with instructions that the society or, as the case may be, the party concerned should initiate execution proceedings forthwith according to the provisions of Section 98.
(2) If the amount due under the award is not forthwith recovered, or the order thereunder is not carried out, it shall be forwarded to the Registrar with an application for execution along with all information required by the Registrar, for the issue of certificate under Section 98. The applicant shall state whether he desires to execute the award by a civil [court] or through the Collector as provided under Section 98 or through the Registrar as provided under Section 156.
(3) On receipt of such application for execution, the Registrar shall forward the same to the proper authority for execution along with a certificate issued by him under Section 98 and a proclamation issued under Rule 82 in the matter prescribed therein.
(4) Every order passed in appeal under Section 97 shall also be executed in the manner laid down in sub-rules (2) and (3)."
Rule 83 provides an option of the choice of forum for execution of the Award passed under Section 96 of the Act by the Co-operative Court. Such an Award can be executed by a Civil Court or through the Collector or through the Registrar as provided under Section 156.
12. From the discussion made by the learned Civil Judge in the impugned order, it is quite evident that, the learned Judge could not distinguish between the execution of the Award passed under Section 96 of the Act and the recovery certificate issued under Section 101 of the Act. As has been observed by this Court in Vithal Yadav Mhase Vs. Amdar Balasaheb Thorat Nagari Sahakari Path Sanstha Maryadit, MANU/MH/0341/2001 : 2001 (3) Mh.L.J. 650, where recovery certificate is issued by Registrar under Section 101 (1) of the Maharashtra Co-operative Societies Act, 1960, the mode prescribed for recovery of the amount is under Section 156 of the said Act and recourse cannot be taken to Section 98 of the said Act, whereas as held by this Court in the case of Onkar Rajaram Wathodkar (cited supra), it is open for the party in whose favour the Award has been passed under Section 96 of the Act to select a particular forum of execution and if the party wants to get the said Award executed like a decree of the Civil Court, the Civil Court of local jurisdiction cannot refuse to execute the said Award.
13. For the reasons stated above, the orders impugned in the present writ petitions have to be set aside and are accordingly set aside. Consequently, all the Darkhast proceedings which are involved in the present writ petitions stand restored to their original file. The Civil Court is directed to entertain and proceed with the said execution proceedings filed before it by the petitioner-Patsanstha in accordance with the provisions of law and execute the Awards like the decrees of the Civil Court.
14. All the Writ Petitions stand allowed in the aforesaid terms.
15. It has to be clarified that, since all these writ petitions are allowed on the legal issue, the Misc. Civil Applications filed in some of the writ petitions for bringing on record legal heirs of the deceased respondents are not considered by this Court. The petitioner-Patsanstha shall file such applications in the execution proceedings before the Civil Court and obtain the necessary orders from the said Court.
16. Pending Civil Application/s, if any, stands disposed of.
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