Partly allowed

Najim Khalil Shaikh and Ors. v. Nashik Zilla Girna Sahakari Bank Co-Op Bank Limited Nashik and Ors.

Bombay HC14 Sept 2021WP/5275/2021

Case brief

AI extract

What is this about?

A petition challenging a rejection of a Revision Application due to lack of pre-deposit. The Court allowed the deposit from an earlier High Court proceeding to count as the required pre-deposit, restoring the application for merits.

What did the court decide?

Impugned order set aside; Revision Application restored to file to be heard on merits; amount deposited in this Court treated as pre-deposit.

Najim Khalil Shaikh and Ors. Vs Nashik Zilla… — Civil Procedure and Limitation | Bombay HC (2021)

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Digitally signed VIDYA by VIDYASURESH AMIN SURESHAMIN Date:2021.09.2011:21:08 +0530

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Vidya Amin

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO. 5275 OF 2021

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Najim Khalil Shaikh & Ors.… Petitioners
V/s.
Nashik Zilla Girna Sahakari Bank Co-op.
Bank Ltd., Nashik & Ors.… Respondents

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Mr. Pramod N. Joshi a/w. Ms Vrushali Raje for the petitioners.
Mr. S.H. Kankal, AGP for the State.

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Mr. Tejesh Dande a/w. Mr. Bharat Gadhavi, Vishal Navale and Mr.
Aniket Aghade i/b.Tejesh Dande & Associates for respondent nos. 1 &
4.

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 CORAM : G.S.KULKARNI, J.
 DATE : 14 September, 2021.

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P.C.:

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Heard Mr. Joshi, learned counsel for the petitioners, Mr. Dande,

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learned counsel for respondent nos. 1 and 4 and Mr. Kankal, learned
AGP for respondent nos. 2, 3 and 5. By consent of the parties and at
their request, this petition is heard finally.

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2.The challenge in this petition is to the judgment and order dated
4 March, 2021 passed by the Divisional Joint Registrar, Cooperative
Societies, Nashik Division, Nashik. By the impugned order, the Revision
Application filed by the petitioners under the provisions of Section 154
of the Maharashtra Cooperative Societies Act, 1960 (for short “MCS
Act”) has been rejected only on the ground of non-compliance of the

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requirement of a pre-deposit as provided for under section 154(2)(A)
of the MCS Act.

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3.Mr. Joshi has drawn my attention to an order dated 2 July, 2015
passed by a co-ordinate Bench of this Court on a Writ Petition filed by
petitioner no. 2. The said writ petition was sought to be withdrawn by
petitioner no. 2 with liberty to file appropriate proceedings under the
MCS Act including a Revision Application to be filed under section 154
of the MCS Act. By such order, this Court allowed the Writ Petition to
be withdrawn with liberty to adopt appropriate proceedings. The Court
observed that the amount which was deposited in this Court pursuance
of an earlier order dated 5 January, 2015 would continue to remain
deposited, with liberty to the said petitioner to withdraw the amount in
the event he was required to make a statutory compliance by way of
pre-deposit while filing a Revision Application. Today, it is this
observation which is pressed into service by Mr. Joshi.

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Mr. Joshi has submitted that after the above order was passed by
this Court, the petitioners moved a Revision Application No. R-106 of
2015 before the Divisional Joint Registrar, Cooperative Societies,
Nashik Division, Nashik under section 154 of the MCS Act, which came
to be partly allowed by an order dated 17 May, 2016 whereby the

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impugned recovery certificate dated 16 January, 2014 issued by the
Deputy Registrar, Cooperative Societies, attached to Nashik Jilha Nagari
Sahakari Banks Association Maryadit, Nashik, in case no. 1315 of 2013
against the applicants under section 101 of the MCS Act was quashed
and set aside, with an order that the subject matter was remanded back
for a fresh hearing and trial before the Deputy Registrar Cooperative
Societies; Another Revision Application No. R-107 of 2015 filed by the
petitioner no. 2 was also partly allowed directing that the sale
certificate dated 17 September, 2014 executed and registered by
respondent nos. 1 and 3, namely, Nashik Zilla Girna Sahakari Bank Ltd.
and the Special Recovery & Sale Officer, Nashik Zilla Girna Sahakari
Bank Ltd. in favour of respondent no. 6-Bapusaheb Ganpat Gavali (the
auction purchaser) qua the property of the revision applicant
(petitioner no. 2) was quashed and set aside. Thereafter, a fresh
recovery certificate no. 857 of 2016 dated 27 January, 2017 was issued
by Deputy Registrar.

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The petitioners being aggrieved by such recovery certificate,
approached the Divisional Joint Registrar in a fresh Revision
Application under section 154 of the MCS Act which came to be filed
on 14 March, 2017. This Revision Application has been rejected by the
impugned order dated 4 March, 2021 for want of pre-deposit.

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4. As noted above, in pursuance of the order dated 5 January, 2015
passed by this Court in Writ Petition No. 8987 of 2014 till date the
amount continues to remain deposited in this Court, despite the fact
that the Revision Application which was filed in pursuance of the
liberty granted by this Court in the said order itself stood disposed of by
the orders as impugned above. Mr. Joshi has submitted that in view of
the amounts remaining deposited in this Court, the earlier Revision
Application was decided without the petitioner no. 2 being called upon
to make the pre-deposit as required under the provisions of Section
154(2A) of the MCS Act. He submits that the Divisional Joint Registrar
ought to have taken into consideration this aspect that a substantial
amount lies deposited in this Court and which was permitted to be
utilized by the said order passed by this Court for the purpose of pre-
deposit which would even be a pre-deposit for the purpose of present
case. It appears to be not in dispute that the amount which was
deposited by the petitioner no. 3 and which according to Mr. Joshi is
available to the benefit of the present petitioners also. It is also not in
dispute that the amount which stands deposited, along with the
accrued interest is much more than the amount being sought to be
recovered under the recovery certificate.

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5. Mr. Dande, learned counsel for respondent nos. 1 and 4 has also

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not disputed the amount as deposited earlier in the proceedings of Writ
Petition No. 8987 of 2014 continues to remain deposited in this Court.
Mr. Dande fairly submits that in the peculiar situation, the amounts are
available in this Court, it need not be physically pre-deposited in the
account of the Revision proceedings. He states that his client would not
have any objection if the Revision proceedings are heard on the
assumption that the proportionate amount which stands deposited, can
be considered to be a pre-deposit for the purpose of the revision
application. In view of the fair stand taken by respondent no. 1, in my
opinion, instead of permitting the petitioners to withdraw the amount
to be deposited as a mandatory pre-deposit under section 154 of the
Act, it can continue to remain deposited in this Court as pre-deposit.
As consented on behalf of respondent no. 1, such deposit can be
considered to be an appropriate pre-deposit for the purpose of
compliance of the provisions of sub-section (2)(A) of Section 154.

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6. In the above circumstances, this petition is disposed of by the following order:

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O R D E R

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i) The impugned order dated 4 March, 2021 stands set aside; ii) The Revision Application stands restored to the file of Divisional Joint Registrar, Cooperative Societies, Nashik

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Division to be heard on merits, however, with a condition
that the amount deposited in this Court in proceedings of
Writ Petition No. 8987 of 2014 to the extent of the amount
necessary for a pre-deposit, be treated as pre-deposit for
the purpose of compliance of the provisions of Section 154
of the Act.

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iii) All contentions of the parties on merits of Revision Application are expressly kept open.

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iv)At the first instance, the parties are permitted to appear
before the Divisional Joint Registrar Cooperative Societies,
Nashik Division, Nashik on 21 September, 2021.

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v) The Divisional Joint Registrar shall make an endeavour to dispose of the Revision Application as early as possible and preferably within four months from today.

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7. Needless to observe that the parties are permitted to seek withdrawal of the amounts as and when either of them become entitled to withdraw the said amount.

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8. Disposed of in the above terms. No costs.

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Najim Khalil Shaikh and Ors. v. Nashik Zilla Girna Sahakari Bank Co-Op Bank Limited Nashik and Ors.

Case brief

What is this about?

What did the court decide?

Najim Khalil Shaikh and Ors. v. Nashik Zilla Girna Sahakari Bank Co-Op Bank Limited Nashik and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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