Bombay High Court
Anil S/O Shivkisandas Rathi vs The Chikhli Urban Co-Op. Bank Ltd. ... on 3 February, 2020
Author: N.B. Suryawanshi
Bench: Nitin B. Suryawanshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 667/2020
Anil S. Rathi
..VS..
Chikhli Urban Co-Op. Bank Ltd. & ors.
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri S.A. Mohta, Advocate for the petitioner
Shri A.M. Kadukar, AGP for the respondent no. 3
CORAM : N.B. SURYAWANSHI, J.
DATED : 03/02/2020 1] Heard learned counsel appearing for the petitioner.
2] Issue notice to the respondents, returnable on 02/03/2020.
3] Learned AGP for the respondent no. 3 waives service of notice.
4] In addition to service of notice through Court, the petitioner shall serve a private notice by Registered Post A.D. and/or by Courier service and/or by hand delivery on the remaining respondents.
5] Learned advocate for the petitioner argued the matter for interim relief stating that the petitioner was not heard at the time of issuing certificate under Section 101 of the Maharashtra Co-operative Societies Act, 1960 (for short "the said Act"). Inspite of the petitioner filing an application ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 01:45:07 ::: 2 wp667.20 seeking documents, the same were not supplied to him. On the contrary, the respondent no. 3, in the impugned order, mentioned that the petitioner orally accepted his liability, when infact in the application the paper clearly stated that the statements made in the notice are not acceptable to him. Learned advocate for the petitioner, therefore, would submit that in the light of the application (Annexure-2), the said finding is prima-facie not acceptable, so also for not giving proper opportunity of hearing the impugned certificate is unsustainable. He, therefore, prays for interim relief.
6] Learned AGP, on the other hand, resisted the prayer of interim relief stating that there is alternate efficacious remedy of filing revision under Section 154 of the said Act, and therefore, this Court may not entertain the writ petition. In support of his submission, he placed reliance on the order passed by the learned Single Judge of this Court in W.P. No. 7885/2017, in the judgment delivered by Hon'ble Supreme Court in Civil Appeal No. 8945/2019 (Genpact India Private Limited vs. Deputy Commissioner of Income Tax & Anr.) and in the judgment delivered by the Hon'ble Supreme Court in Civil Appeal No. 7764/2019 (Virudhunagar Hindu Nadargal Dharma Paribalana Sabai & Ors. vs. Tuticorin Educational Society & Ors.).
7] Learned advocate for the petitioner in support of his submission that for violation of the principles of natural justice, the impugned order is liable to be interfered with under Articles 226 and 227 of the Constitution of India and availability of the alternate remedy cannot be said to be a bar, placed reliance in the exposition of law of the Hon'ble Supreme Court in Committee of Management and Anr. vs. ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 01:45:07 ::: 3 wp667.20 Vice-Chancellor and Ors. AIR 2009 SC 1159, in Union of India and another vs. Guwahati Carbon Limited (2012) 11 SCC 651 and in Sundeep Polymers Pvt. Ltd. & Ors. vs. State of Maharashtra & Ors. 2010 BCI 222.
8] The Constitution Bench of the Hon'ble Supreme Court in K.S. Rashid and Son vs. Income Tax Investigation Commission and in catena of judgments has held that "if the High Court is satisfied that the aggrieved party can had an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision had not been adopted. Thus, the Hon'ble Supreme Court has recognized some exceptions to the rule of alternative remedy, where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments, the High Court will not entertain a petition under Article 226 of the Constitution of India if an effective alternate remedy is available to the aggrieved person.
9] So far as the case law relied by the learned AGP is concerned, it is well settled that where there is efficacious alternate remedy available, the High Court would not entertain the writ petition under Articles 226 and 227 of the Constitution of India. However, the fact remains that in the ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 01:45:07 ::: 4 wp667.20 present case, prima-facie it appears from the record that the petitioner though applied for documents in the proceedings filed by the respondents seeking certificate under Section 101 of the said Act, the same were not supplied to the petitioner and it appears that opportunity of hearing was not given. In that view of the matter, since prima-facie there appears violation of principles of natural justice and as the petitioner was not given proper opportunity of hearing, I am inclined to grant interim relief in favour of the petitioner.
10] Until further orders, there shall be ad-interim relief in terms of prayer clause (iii).
JUDGE ANSARI ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 01:45:07 :::