Allowed

The Chembur Nagrik Sahakari Bank Ltd. v. State of Maharashtra and Ors.

Bombay HC7 Sept 2010CAL/273/2010

Case brief

AI extract

What is this about?

In an appeal challenging the condonation of delay for filing a revision application, the Bengal High Court set aside the Single Judge's order that had allowed a delay of 1175 days. The Court held that the registrar failed to consider whether the respondent pursued remedies in good faith given previously dismissed writ petitions, and restored the petition for fresh disposal.

What did the court decide?

Appeal allowed. Impugned order of the Single Judge set aside. Writ petition restored for disposal afresh. Revision hearing stayed.

The Chembur Nagrik Sahakari Bank Ltd. Vs… — Contract and Commercial Disputes | Bombay HC (2010)

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1 LPA No. 215/2010

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.215 OF 2010

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WRIT PETITION NO.3552 OF 2010 WITH CIVIL APPLICATION NO.273 OF 2010

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The Chembur Nagrik Sahakari Bank Ltd.

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.... Appellant

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Vs.

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State of Maharashtra & Ors. .... Respondents

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Mr. C.J. Sawant, Senior Advocate with Mr. V.C. Ghosalkar, Advocate for Appellant.

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Mr. R.M. Patne, AGP for respondents no.1,2 and 3. Mr. A.S. Desai, Advocate for respondent no.4.

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Coram : Dr. D.Y. Chandrachud & Smt.R.P. SondurBaldota, JJ.

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Date : September 7 2010

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P.C.

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Admit. With the consent of learned counsel appearing for both

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the parties, the matter is taken up for final hearing and disposal.

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This appeal arises out of an order of the learned Single Judge dated 4^th August 2010, by which a Writ Petition filed by the

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appellant for challenging an order of the Divisional Joint Registrar, Co-operative Societies, Mumbai condoning a delay of 1175 days has

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2 LPA No. 215/2010

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been dismissed. Briefly stated the relevant facts for the purpose of the appeal are that, a recovery certificate has been issued against the appellant on 28^th May 2003 under Section 101 of Maharashtra Co-operative Societies Act, 1960. As a matter of fact, the court has

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been informed that nearly 117 recovery certificates have been issued against the appellant in proceedings initiated under Section

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In one of those proceedings, an order was passed by a learned Single Judge of this Court on 11^th April 2002 dismissing the writ petition filed by the respondent to challenge a recovery certificate. The learned Single Judge was of the view that a remedy of a revision under Section 154 was available to the appellant and that Sub-section 2(A) requires a deposit of 50% of the recoverable amount as a condition precedent to the revision application being entertained. On these grounds, the petition was

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dismissed. Another recovery certificate dated 28^th May 2003, was challenged in Writ Petition No.1170 of 2004. By a judgment dated 22^nd March 2004, a learned Single Judge of this Court dismissed the petition. The learned Single Judge observed that several recovery certificates have been issued against the respondent and a

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challenge to all the certificates could not be grouped together merely because it pertains to one bank. Once again, there was a

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3 LPA No. 215/2010

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specific observation to the effect that the recovery certificate could be challenged under Section 154. While dismissing the petition, the

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learned Single Judge imposed exemplary costs of Rs.5,000/-. An appeal against the order of the learned Single Judge was dismissed by the Division Bench on 5^th May 2004. The respondent filed another petition being Writ Petition No.2844 of 2006, which was dismissed on 5^th May 2006. While adverting to the earlier orders of the learned Single Judge and the Division Bench, the learned Single Judge was constrained to observe that there was a complete misuse of the process of law by the respondent to these proceedings.

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In 2006, after the dismissal of the last of the aforesaid writ

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petitions, the respondent filed a revision application before the Divisional Joint Registrar. There was a delay of approximately 1175 days. Two reasons were adduced in filing the application for condonation of delay. The first is that the respondent had been pursuing his remedies before this court by filing writ petitions and that against orders of learned Single Judges, appeals had been filed. The second ground is that, since May 2006 the respondent

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had suffered from health problems and that his mother was seriously ill. It appears that only the first ground was set up in

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4 LPA No. 215/2010

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arguments before the Divisional Joint Registrar. By his order dated 11^th February 2010, the Divisional Joint Registrar condoned the delay. The order of the Divisional Joint Registrar was challenged before the learned Single Judge. The learned Single Judge dismissed the writ petition filed by the appellant on the ground that the exercise of discretion, relying on the provisions of Section 14 of the Limitation Act,1963 was judicious and did not call for any interference in writ proceedings.

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On behalf of the appellant, it has been submitted that there was a complete want of good faith on the part of the appellant, which is evident from the successive writ petitions, which were filed before this Court and the observations made by learned Single Judges while dismissing those petitions. It is urged that though the appellant was aware of the existence of the revisional remedy, in view of the order of the learned Single Judge dated 11^th April 2002, the respondent chose to file Writ Petition No.1170 of 2004, which was dismissed on 22^nd March 2004 with exemplary costs. The appeal was dismissed on 5^th May 2004. Once again a petition was filed before the learned Single Judge, which was dismissed on 5^th May 2006. These facts, it was submitted, have not been considered.

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On the other hand, the learned counsel for the appellant supports

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5 LPA No. 215/2010

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the exercise of discretion by the Joint Registrar and urged that the interference of this Court would not be warranted.

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The basic requirement of Section 14 of the Limitation Act, is that, the plaintiff should have been prosecuting with due diligence another civil proceeding, which relates to the same matter in issue and which must be prosecuted in good faith. Evidently, the Divisional Joint Registrar has not adverted, to the circumstances in which the earlier writ petitions were dismissed by the learned Single Judges. From the order of the learned Single Judge, which is impugned in this proceeding, it would appear that the attention

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of the learned Judge was not drawn specifically to the observations contained in the orders of the Single Judges dated 22^nd March 2004 and 5^th May 2006. Both these orders would have a bearing on the question, as to whether the respondent was prosecuting his remedy before this court in good faith and with due diligence. Since this aspect has not been considered in the impugned order, it would be appropriate and proper to set aside the impugned order and to restore the writ petition for the consideration of the learned Single Judge. For the aforesaid reasons, we allow the appeal and set aside the order of the learned Single Judge dated 4^th August 2010. Writ Petition 3552 of

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6 LPA No. 215/2010

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2010 shall stand restored to the file of the learned Single Judge for disposal afresh.

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Since the court has been informed that the Divisional Joint Registrar has listed the revisional proceedings for disposal on merits today, the learned counsel agreed that pending the disposal of the petition before the learned Single Judge, no steps shall be taken to pursue the proceedings before the Divisional Joint Registrar. The Divisional Joint Registrar is directed to stand over the hearing of the proceedings in revision until 1^st October 2010 or until such earlier date on which the learned Single Judge may be in a position to take up the matter for admission. The appeal is accordingly allowed in these terms. There shall be no order as to costs.

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In view of the disposal of the Letters Patent Appeal, the Civil Application does not survive and is dismissed as infructuous.

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(Smt.R.P. SondurBaldota,J.) (Dr. D.Y.Chandrachud, J.)

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7 LPA No. 215/2010

The Chembur Nagrik Sahakari Bank Ltd. v. State of Maharashtra and Ors.

Case brief

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The Chembur Nagrik Sahakari Bank Ltd. v. State of Maharashtra and Ors.

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