Bombay High Court
Atul Dnyaneshwar Kharade vs Adarsh Nagari Sahakari Patsanstha Ltd ... on 17 February, 2015
Author: Anoop V. Mohta
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO. 4516 OF 2014
Atul Dnyaneshwar Kharade ....Petitioner.
Vs.
Adarsh Nagari Sahakari Patsanstha Ltd. & Ors. ....Respondents.
Mr. Vivek V. Salunke for the Petitioner.
Mr. S.A. Ghaisas i/by Mr. A.M. Joshi for Respondent No.1.
Mr. S.D. Rayrikar, AGP for Respondent No.4.
igCORAM:- ANOOP V. MOHTA, J.
DATE :- 17 FEBRUARY 2015.
P.C:-
Rule, made returnable forthwith.
Heard finally by consent of the parties.
2 The Petitioner-borrower and guarantors in the proceedings
initiated under Section 101 of the Maharashtra Co-operative Societies
Act, 1960 (for short, the MCS Act) by Respondent No.1 Society, filed
an Application for the inspection and production of documents on 24
February 2014, prior to filing of the Written Statement. Respondent
No.4-Assistant Registrar, on the same date directed the Society to
supply documents and the matter was adjourned to 10 March 2014.
However, on 10 March 2014, though there is no power, the earlier
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order passed by the Authority was revoked indirectly and rejected the
Petitioner's Application stating it to be not relevant for filing Written
Statement.
3 The learned counsel appearing for the Petitioner makes
statement that the Written Statement is filed thereafter. However, in
view of above observations, and the rejection of Application so
referred above, the case of Petitioner for inspection/production of
documents, though referred in the Application and/or material placed
on record in support of the same, now would not be
inspected/produced though the Application was granted initially by
order dated 10 March 2014, as it is rejected again.
4 Rule 86-D, production and inspection of the documents
deals with the situation like this, which is reproduced as under:-
"86-D. Production and inspection of documents.-
(1) The parties shall file the documents referred to in
the pleadings at the time of filing application and
statement of defence, as the case may be. If either
party satisfies the Registrar that any document is
relevant and the same is in the custody of the
opposite party, the Registrar may, by an order in
writing, direct such party to produce such document
on the next day of hearing. However, no such
application shall be entertained from the opponent
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before filing his written statement in defence.
(2) If the party so ordered, fails to produce
such documents on the next date of hearing, the
Registrar may draw adverse inference against such
party and hearing of the original application shall
not be postponed till filing of documents or for the
reasons of such non-compliance of the order.
(3) If the Registrar is satisfied that the
documents required to be produced, cannot be
brought before the Registrar for sufficient reasons like
its volume or otherwise, the Registrar may allow the
opposite party to take inspection of the documents
within seven days from the date of order of such
inspection.
(4) If the Registrar is satisfied that the
opponent had no access to the documents earlier and
the filing of additional statement is necessary he may
allow the filing of such additional statement. In no
other case, such additional statement shall be
allowed to be filed."
5 The production and inspection of the documents at the
instance of Opponent, after filing of Written Statement in defence, is
an important facet to give equal opportunity to all the parties. If
Application is filed and those documents are necessary for the
adjudication for the issue so raised, there is no reason that such
opportunity should not be granted to the Opponent and/or by one
who asked for inspection of the documents. This intent is very clear
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from clause (2) itself that, if the party so ordered to produce and/or
permit to inspect the documents, failed to do so, the Registrar may
take adverse inference against such party. This is not the case where
any sufficient and/or special reasons made out by the opposite party
to not to give inspection and/or produce the documents. The
statement is made by the learned counsel appearing for the Petitioner
that those documents are read and referred in the Application so filed
by the Society and therefore, it is necessary for appropriate defence
and even for proper adjudication for the issue, so raised. Therefore,
taking overall view of the matter, I am inclined to dispose of the
present Writ Petition by permitting the Petitioner to file fresh
Application for inspection and production of documents, within two
weeks from today. Respondent No.4 to consider the same in
accordance with law, as early as possible, preferably within four weeks
thereafter.
6 Resultantly, the following order:-
ORDER
a) Order dated 10 March 2014 is quashed and set aside.
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b) The Petitioner to file a fresh Application for
inspection and the production of the documents within two weeks.
c) Respondent No.4-Assistant Registrar, to consider the said Application, in accordance with law, by giving equal opportunity to both the parties and dispose of as early as possibly, preferably within 4 weeks thereafter.
d) By keeping all points open, Writ Petition is allowed.
e) Rule made absolute, accordingly.
f) There shall be no order as to costs.
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