Bombay High Court
Aashish S/O. Ajayrao Pathak vs Govt. Of Maha., Through Its Divisional ... on 8 August, 2016
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.5518 OF 2015
PETITIONER: Ashish S/o Ajayrao Pathak, Aged -
Revisioner - Applicant Major, occupation-Business, R/o
Ori. Borrower. Panthion Society, Ashray Apartments,
Manish Nagar, Near Reliance Fresh,
Nagpur.
-VERSUS-
RESPONDENTS: 1. Government of Maharashtra, through
Ori. Respondents its Divisional Joint Registrar,
Cooperative Societies, Dhanwate
ig Chambers (Annexe), Sitabuldi,
Nagpur.
2. Assistant Registrar, Cooperative
Societies, Working under District
Deputy Registrar, Cooperative
Societies, Nagpur.
3. Nirmal Urban Cooperative Bank
Limited through its Special Recovery
Officer,
4. Niraj Hemantrao Bawankule, Aged-
Major, Occupation-Not known, Plot
No.35, Ishwar Nagar, Nagpur.
5. Shri Sagar Vishwambhar Vatile, Aged-
Major, Occupation-Not known, R/o
305, R/o Ratan Heights, Besa Road,
Ghogli, Nagpur.
Shri S. K. Tambde, Advocate for the petitioner.
Shri A. M. Kadukar, Asstt. Government Pleader for respondent nos.1 & 2.
Shri A. D. Borkute, Advocate for the respondent no.3.
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CORAM: A.S. CHANDURKAR, J.
DATED: 08
th AUGUST, 2016.
ORAL JUDGMENT :
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1. Rule. Heard finally with the consent of the learned Counsel for the parties.
2. The petitioner is a borrower who had availed loan from the respondent no.3 - Cooperative Bank. On the amount of loan not being repaid, the Bank initiated proceedings under Section 101 of the Maharashtra Cooperative Societies Act, 1960 (for short, the said Act) for issuance of recovery certificate. On 3-9- 2015, a recovery certificate for the amount of Rs.11,21,555/-
came to be issued. Thereafter on 7-9-2015 the Special Recovery Officer issued a notice to the petitioner and the respondent nos.4 & 5 who were the guarantors to repay Rs.11,60,120/-. Being aggrieved, the petitioner filed a revision application under Section 154 of the said Act. However, as 50% of the requisite amount in terms of Section 154(2A) of the said Act were not deposited, the proceedings were not entertained.
3. Shri S. K. Tambde, the learned Counsel for the petitioner submitted that no notice was received by the petitioner in the proceedings under Section 101 of the said Act before the Assistant Registrar due to which he could not contest the same.
According to him, in the reply filed on behalf of the Assistant Registrar, it has been stated that on 31-7-2015, a notice was issued to the petitioner which was duly served. He submitted that no such ::: Uploaded on - 12/08/2016 ::: Downloaded on - 13/08/2016 00:14:25 ::: wp5518.15.odt 3/6 notice was received by the petitioner and there is no reference to any such notice in the order dated 3-9-2015. He referred to the provisions of Rule 86A of the Maharashtra Cooperative Societies Rules, 1961 and submitted that the necessary procedure was not followed. He placed reliance upon the judgment of the Division Bench in Sundeep Polymers Pvt. Ltd. Vs. State of Maharashtra 2010 (6) ALL MR 550. He, therefore, submitted that the proceedings deserve to be considered afresh by the Assistant Registrar.
4.ig Shri A. D. Borkute, the learned Counsel for the respondent no.3 supported the impugned order and submitted that the proceedings were not contested by the petitioner before the Assistant Registrar. Shri A. M. Kadukar, the learned Assistant Government Pleader for respondent nos.1 and 2 relied upon the affidavit-in-reply and submitted that the recovery certificate had been issued in accordance with law.
5. Perusal of the documents filed on record indicate that on 18-5-2015, the petitioner had moved an application seeking time to file reply to the proceedings. In the said application, it was submitted that the petitioner had not received any documents whatsoever alongwith the notice. In the impugned order, no reference can be found to the notice dated 31-7-2015 which according to the respondent no.2 was issued to the petitioner. As ::: Uploaded on - 12/08/2016 ::: Downloaded on - 13/08/2016 00:14:25 ::: wp5518.15.odt 4/6 observed by the Division Bench in Sandeep Polymers Pvt. Ltd.
(supra), the mandatory procedure as prescribed under Rules 86A to 86F of the said Rules have to be duly followed.
6. By order dated 5-10-2015, the petitioner was directed to deposit an amount of Rs.6,00,000/- in this Court. This amount has been so deposited by the petitioner. In the aforesaid facts and considering the decision of the Division Bench referred to herein above, an opportunity deserves to be granted to the petitioner to contest the proceedings before the Assistant Registrar. The same would facilitate adjudication of the rights of the respective parties.
7. in view of aforesaid, the following order is passed:
(1) The Recovery Certificate dated 3-9-2015 alongwith notice dated 7-9-2015 are quashed and set aside. (2) The proceedings under Section 101 of the said Act are restored before the Assistant Registrar for adjudication on merits.
The petitioner shall appear before the Assistant Registrar on 24-8-2016. The petitioner shall not seek unnecessary adjournments in the proceedings.
(3) The amount of Rs.6,00,000/- alongwith interest accrued thereon shall be paid to the respondent no.3. This amount shall be invested by the respondent no.3 in a separate account. In case if it is found that no recovery certificate is liable to ::: Uploaded on - 12/08/2016 ::: Downloaded on - 13/08/2016 00:14:25 ::: wp5518.15.odt 5/6 be issued or a recovery certificate is issued for a lesser amount, the balance amount shall be repaid to the petitioner with 9% simple interest from the date this amount is credited with the respondent No.3. This arrangement is without prejudice to the rights of parties and the proceedings under Section 101 of the said Act shall be decided without being influenced by this arrangement.
(4) Rule is made absolute in aforesaid terms. No costs.
//MULEY// JUDGE ::: Uploaded on - 12/08/2016 ::: Downloaded on - 13/08/2016 00:14:25 ::: wp5518.15.odt 6/6 CERTIFICATE "I certify that this Judgment/Order uploaded is a true and correct copy of original signed Judgment/Order."
Uploaded by : Sanjay B. Muley, Uploaded on :12-08-2016 Personal Assistant.
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