Bombay High Court
Mahesh Balwant Arjunwadkar vs Divisional Joint Registrar on 19 January, 2012
Author: G.S.Godbole
Bench: G.S.Godbole
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srj
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7128 OF 2011
WITH
WRIT PETITION NO.7130 OF 2011
Mahesh Balwant Arjunwadkar ]
Adult, Occupation:- Business, residing at ]
Gurudatta Apartments, Bramhanpuri, ]
Miraj, Dist:- Sangli. ] ... Petitioner.
V/s.
1
Divisional Joint Registrar
Co-operative Societies, Kolhapur
]
]
Division, Kolhapur. ]
2 Liquidator, ]
The Miraj Urban Co-operative ]
Bank Limited, Miraj having its ]
office at Station Road, Miraj, ]
Dist:- Sangli. ] .. Respondents.
Mr. S.S. Patwardhan, for the Petitioner.
Mr. S.D. Rayrikar, AGP for Respondent No.1.
Mr. Prakash Mahadik, for Respondent No.2.
CORAM: G.S.GODBOLE,J.
DATE : 19th JANUARY, 2012.
P.C:-
1 Heard Mr. Patwardhan, for the Petitioner, Mr. Rayrikar, AGP
for Respondent No.1 and Mr. Mahadik, for Respondent No.2.
2 Following order was passed in this Writ Petition on 27th September, 2011:-
" Issue notice to respondents, returnable on 23rd ::: Downloaded on - 09/06/2013 18:05:44 :::
-2- 26-wp-7128-2011 November, 2011 for final disposal, at the admission stage. Learned AGP waives service for respondent no.1."
3 In view of the aforesaid order, the Petitioner is not being relegated to the alternate remedy of filing Revision under Section 154 of the MCS Act, 1960.
4 RULE. Rule made returnable forthwith and heard by consent of the parties.
5 Mr. Patwardhan submits that the Petitioner desired to file a Dispute under Section 91 of the MCS Act, 1960 and only in such dispute, Petitioner can lead evidence, produce documents and a dispute can be decided by Competent Court.
6 On the other hand, Mr. Mahadik and learned AGP opposes the Petition and contend that liquidator has already initiated proceedings for recovery of loan from the Petitioner and in this Proceedings, the bank can lead all his evidence and defences. According to them, it was not necessary to grant leave to file separate dispute.
7 I have considered the rival contentions. Section 107 of the MCS Act, 1960 reads thus:-
"Section 107- Bar of suit in winding up and dissolution matters:- Save as expressly provided in this Act, no Civil Court shall take cognizance of any matter connected with the winding up or dissolution of a society under this Act; and when a winding up order has been made no suit or other legal proceedings shall lie or be proceeded with against the society or the liquidator, except by leave of the Registrar, and subject ::: Downloaded on - 09/06/2013 18:05:44 :::
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Provided that, where the winding up order is cancelled, the provisions of this section shall cease to operate so far as the liability of the society and of the members thereof to be sued is concerned, but they shall continue to apply to the person who acted as Liquidator."
8 In view of the bar contained in Section 107, the Petitioner was obliged to file application before the Registrar. The Petitioner wants to file a suit for declaration that he had never borrowed any loan from the bank. The impugned order does not take into consideration the aforesaid aspect only on the basis that the Petitioner can raise all contentions before the Liquidator. The Liquidator cannot be equated with a Competent Co-
operative Court and the nature and quality of adjudication of and scope of proceeding in dispute and in proceeding before the Liquidator are bound to be different. I am, therefore, of the opinion that the impugned order is unsustainable. Hence, both Writ Petitions deserves to succeed.
9 Rule made partly absolute in terms of prayer clauses (a) and
(b).
10 It is clarified that despite filing of the dispute, there will be no stay of proceeding before the Liquidator and the same can proceed on their own merits.
(G.S.GODBOLE,J.) ::: Downloaded on - 09/06/2013 18:05:44 :::