Bombay High Court
Sanjay Manikrao Gadekar vs State Of Maha. Thr. Divisional Joint ... on 15 March, 2019
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.7059 OF 2017
Sanjay Manikarao Gadekar
Aged about 45 years, Occ. Business
and agriculture
R/o Main road, Chikhli,
Tq. Chikhli, Dist. Buldhana ... Petitioner.
-vs-
1. State of Maharashtra Through
The Divisional Joint Registrar,
Cooperative societies, Amravati
Division, Amravati
Tq. And Dist. Amravati
2. District Deputy Registrar,
Cooperative societies, Buldhana,
Tq. & dist. Buldhana
3. Assistant Registrar,
Cooperative societies, Buldhana,
Tq. & dist. Buldhana
4. Satish Wamanappa Khabutare,
Age 45 years, Occ. Business,
R/o Khandala Road,
Chikhli, Tq. Chikhli,
Dist. Buldhana
5. Sudhir Digambar Tambat,
R/o At Jagdamba Enterprises,
Rallies Gin, D P Road, Chikhli,
Dist. Buldhana ... Respondents.
Shri D. G. Gawande, Advocate for petitioner.
Shri S. M. Ghodeswar, Additional Government Pleader for respondent Nos.1
to 3.
Shri N. A. Padhye, Advocate for respondent No.4.
Shri Tejas Deshpande, Advocate for respondent No.5.
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CORAM : A. S. CHANDURKAR, J.
DATE : March 15, 2018.
Oral Judgment :
By this writ petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 23/08/2016 passed by the District Deputy Registrar in proceedings under Maharashtra Money Lending (Regulation) Act, 2014 which order has been confirmed by the Divisional Joint Registrar, Cooperative Societies, Amravati.
2. It is the case of the respondent No.4 herein that on 18/05/2006 and 12/07/2006, nominal documents indicating sale of agricultural lands from Gat Nos.101 and 104 in favour of the present petitioner was got executed by way of security as the respondent No.4 had borrowed an amount of Rs.2,00,000/- from him. This amount was to be returned with interest within period of one year. As that transaction of sale was nominal in nature and merely by way of security, the said agricultural field was actually sold by respondent No.4 in favour of respondent No.5 on 30/04/2007. The amount borrowed from the petitioner with accrued interest was returned to him by the respondent No.4. After receiving valid consideration the possession of the agricultural field was handed over to respondent No.5. In the meanwhile since the petitioner sought to claim rights on the basis of the nominal documents executed in his favour, the respondent No.4 initiated ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:42:36 ::: 944-WP-7059-17 3/6 proceedings under Section 18(2) of the said Act seeking declaration that the aforesaid documents dated 08/05/2006 and 12/07/2006 were nominal in nature and the outcome of a money lending transaction and hence liable to be cancelled. Said proceedings were opposed by the petitioner herein on the plea that the transaction between himself and the respondent No.4 was a genuine transaction and not hit by the provisions of the said Act. The District Deputy Registrar after considering the rival contentions passed an order on 23/08/2016 holding therein that the documents dated 18/05/2006 and 12/07/2006 executed by the respondent No.4 in favour of the petitioner were nominal in nature and were liable to be cancelled. On that basis after granting said declaration it was further directed that no mutation entry to be taken in favour of the petitioner on the strength of said documents. The petitioner thereafter filed an appeal under Section 18(4) of the said Act and by the impugned order dated 10/07/2017 the said appeal has been dismissed.
3. Shri D. G. Gawande, learned counsel for the petitioner submitted that both the Authorities erred in accepting the case as put forth by respondent No.4. The Authorities did not take into account the aspect that the document indicating cancellation of the transaction dated 08/05/2006 said to be executed by the petitioner was a fraudulent document. It was clear from the seal of the notary that the said document was not prepared on ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:42:36 ::: 944-WP-7059-17 4/6 30/04/2007 but subsequent thereto. The date till which the notary was entitled to function as such was stated to be 27/08/2018 which was more than ten years from 07/07/2008 and as per the relevant guidelines this was not permissible. The said fact was agitated before the Authorities but the same had not been duly considered. According to him this fact itself indicated that the sale-deeds executed in favour of the petitioner by the respondent No.4 were legal and valid and were not liable to be set aside.
4. Shri N. A. Padhye, learned counsel for the respondent No.4 and Shri T. Deshpande, learned counsel for respondent No.5 as well as learned Assistant Government Pleader for respondent Nos.1 to 3 supported the impugned order. It was submitted that the plea as raised by the petitioner with regard to the document dated 30/04/2007 was by way of an afterthought. The petitioner had filed R.C.S. No.226/2012 against the respondent No.5 herein seeking possession of the said property in that suit. Though there was reference to the document dated 30/04/2007 in the plaint, it had not been pleaded that the transaction between the petitioner and the respondent No.4 had been cancelled. Moreover, the notary in question who had attested the said document had expired on 31/07/2015 and shortly thereafter a certificate of the said notary dated 07/05/2015 was sought to be brought on record. The said certificate was also doubtful and was rightly not accepted by the Authorities. Having not challenged the deed of ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:42:36 ::: 944-WP-7059-17 5/6 cancellation in the civil suit, it was not permissible to raise such challenge in the present proceedings that were required to be adjudicated in a summary manner. It was submitted that both the Authorities having considered all relevant aspects there was no reason to interfere in writ jurisdiction.
5. I have heard the learned counsel for the parties at length and I have perused the documents placed on record. It is the case of the petitioner that he was not aware about the transaction dated 30/04/2007 whereby the respondent No.4 sold the field in question to the respondent No.5. On the contrary it is the case that the document dated 30/04/2007 shown to have been executed by the petitioner so as to cancel the sale deed dated 08/05/2006 executed by the respondent No.4 in his favour was a fraudulent document. It is to be seen that after the respondent No.4 initiated the present proceedings, the Assistant Registrar, Co-operative Wocieties was called upon to submit his report after making necessary enquiry. Such report dated 09/03/2016 accordingly submitted after which the parties were called upon to give their say. In the proceedings thereafter, the petitioners took the stand that the deed dated 30/04/2007 was a fraudulent document shown to have been executed by the petitioner. It is to be noted however that the petitioner had not sought to challenge that document before the civil Court which had jurisdiction to grant a declaration as regards its invalidity. Though the petitioner had filed R.C.S. No.226/2012 against the respondent No.5, no ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:42:36 ::: 944-WP-7059-17 6/6 such plea has been raised there in the civil proceedings. The Authorities while examining the respective contentions have not accepted the stand of the petitioner in that regard. It is to be noted that the present proceedings were required to be conducted in a summary manner and the grievance with regard to invalidity of any document was required to be challenged before the civil Court. The same has however not been done. The concerned notary who was shown to have notarised the document on 07/07/2008 expired on 31/07/2015 and therefore the Authorities were not in a position to make further enquiry in that matter.
It is thus seen that the defence as sought to be raised by the petitioner has not been substantiated and merely on the basis of the seal of the notary it cannot be concluded that the document dated 30/04/2007 was a fraudulent document. It is found that both the Authorities after considering all relevant material on record have found that the transactions in favour of the petitioner were hit by provisions of the said Act and were thus liable to be set aside. The conclusion arrived at is based on material available on record and the said finding has been recorded after giving due opportunity to the parties. There is no jurisdictional error warranting exercise of jurisdiction under Article 227 of the Constitution of India.
Writ Petition therefore stands dismissed with no order as to costs.
JUDGE Asmita ::: Uploaded on - 19/03/2019 ::: Downloaded on - 31/03/2020 15:42:36 :::