Disposed

Varsha Auto Parts v. the Shrirampur Peoples Co-Operative Bank Ltd. and Ors.

Bombay HC5 May 2012WP/5906/2011

Case brief

AI extract

What is this about?

The Bombay Bench at Aurangabad disposed of a writ petition challenging the dismissal of a dispute and appeal filed by Varsha Auto Parts. The court held that a certificate under Section 101 cannot be assailed under Section 91. It also observed that the daughter's property could not be attached merely because the business was carried on in her name.

What did the court decide?

_wp_5906_of_2011_$disposed$.

Varsha Auto Parts Vs the Shrirampur Peoples… — Company and Corporate | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 5906 OF 2011

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Varsha Auto Parts .. Petitioner

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Versus

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The Shrirampur Peoples Co-operative Bank Ltd. and others .. Respondents

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Shri N. R. Bhavar, Advocate for the Petitioner. Shri P. B. Vikhe Patil, Advocate for the Respondent No. 1

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CORAM : S. V. GANGAPURWALA, J. DATE : 05TH MAY, 2012.

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PER COURT :

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. The petitioner has filed a dispute U/Sec. 91 of the Maharashtra Co-operative Societies Act (hereinafter referred as the “Said Act” for the sake of brevity) for settlement of account and injunction. The Co-operative Court dismissed the dispute. Aggrieved thereby the petitioner filed an appeal before the Cooperative Appellate Court. The Co-operative Appellate Court dismissed the appeal observing that the certificate U/Sec. 101 has been issued and only remedy to challenge the same is U/Sec.

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154 of the said Act. The petitioner has assailed the said judgment in the present writ petition.

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Shri Bhavar, the learned counsel for the petitioner submits that the petitioner is not assailing the certificate U/Sec. 101 of the Said Act before the Co-operative Court. The dispute was filed for settlement of account and injunction which is based on independent cause of action. It is the Co-operative Court which can investigate into the accounts. The Courts below have failed to exercise the jurisdiction in this regard. The learned counsel further contends that the evidence on record is sufficient to show that exorbitant interest has been charged by the respondent. The oral evidence has not been discussed by the Court. The learned counsel further submits that the Courts below have failed to consider that even the property of the daughter i. e. the scooter owned by the daughter of the petitioner is also attached. The property of the daughter could not have been attached for the recovery of the loan of the petitioner. The observations of the learned Trial Judge in para 7 of the judgment are absolutely perverse.

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Shri Vikhe Patil, the learned counsel for the

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respondent/bank supports the judgments and submits that the dispute itself was not maintainable.

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It is settled proposition of law that a certificate issued U/Sec. 101 of the said Act cannot be assailed in a dispute U/Sec. 91 of the said act. Once the certificate is issued U/Sec. 101, the liability is crystallized. In view of that I do not see any error in the judgment dismissing the dispute on said count.

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Perusal of the judgment of the Co-operative Court it is evident, more particularly in para 7 of the judgment, the Court has made observations that the business of the disputant is carried in the name of his daughter and that the said daughter resides jointly with the disputant and that it is duty of the heirs to pay the legal dues of the parents and the scooter attached in execution of recovery certificate is proper.

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The daughter does not appear to be a borrower or guarantor as per admission given by the bank’s witness in the deposition. The property of any other individual cannot be attached simply because the petitioner carries on business in the trade name i. e. the name of his daughter, it cannot ipso facto be

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a ground to attach the property of the daughter.

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The writ petition is accordingly disposed of with aforesaid observations. No costs.

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Needless to state the petitioner is at liberty to initiate such proceedings as would be available to him in law.

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[ S. V. GANGAPURWALA, J. ]

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bsb/May 12

Varsha Auto Parts v. the Shrirampur Peoples Co-Operative Bank Ltd. and Ors.

Case brief

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Varsha Auto Parts v. the Shrirampur Peoples Co-Operative Bank Ltd. and Ors.

Case brief

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