Allowed

Shree Ganesh Sahakari Bank Ltd. v. Smt. Meghana Mahesh Takate and Ors.

Bombay HC16 Oct 2023WP/12440/2019

Case brief

AI extract

What is this about?

The High Court of Judicature at Bombay, Civil Appellate Jurisdiction, quashed orders condoning delay and setting aside an ex-parte cooperative bank award. The Court held that the Respondents' claim of non-service was false given their prior appearance and adjournment requests, barring condonation of delay.

What did the court decide?

The impugned orders dated 31st January 2017 and 28th March 2019 were quashed and set aside; the miscellaneous application to set aside the ex-parte award was dismissed with cost.

Shree Ganesh Sahakari Bank Ltd. Vs Smt. Meghana Mahesh… — Cooperative Societies | Bombay HC (2023)

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2023:BHC-AS:39853

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.12440 OF 2019

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Shree Ganesh Sahakari Bank Ltd....Petitioner
 Versus

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Smt. Meghana Mahesh Takate & Ors.

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 ...Respondents

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Mr. Ashok B. Tajane a/w. Mr. Yogesh G. Thorat, for the Petitioner.

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CORAM : MADHAV J. JAMDAR, J. DATED : 16^th OCTOBER 2023

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JUDGMENT:

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1. Heard Mr. Tajane a/w. Mr. Yogesh Thorat, learned Counsel appearing for the Petitioner. None appears for the Respondents although served.

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2.By the present Writ Petition filed under Article 227 of the
Constitution of India, the challenge is to the legality and validity of
the Order dated 31st January 2017 passed by the learned Judge,
Cooperative Court, Nashik on Exhibit-1 in Miscellaneous Application
No.7 of 2014 as well as Order dated 28th March 2019 passed by the
learned Member, Maharashtra State Cooperative Appellate Court at
Mumbai in Appeal No.125 of 2018. By said impugned Order dated
31st January 2017, the Application for condonation of delay has been

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allowed and the ex-parte Judgment and Award passed in Cooperative
Case No.571 of 2010 was set aside on the ground that no evidence to
show the summons of the said case has been served on the
Respondents and accordingly, said Co-operative Case No.571 of 2010
was restored to the file. By the impugned Order of the learned
Appellate Court, the said Order dated 31st January 2017 was
maintained, subject to payment of cost of Rs.4,000/-.

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3.It is the contention of Mr. Tajane, learned counsel appearing for

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the Petitioner that the Respondents were served with the summons in
said Cooperative Case No.571 of 2010. They sought adjournment and
thereafter did not appear therefore, the learned Judge, Cooperative
Court, Nashik by Order dated 25th November 2010 passed an ex-
parte Judgment and Award. In the said ex-parte Judgment and
Award, it is specifically mentioned that inspite of service of summons,
the Opponents have not appeared. By the said Award, it has been
held that the Disputants are entitled for recovery of sum of
Rs.22,15,671/- from the Respondents jointly and severally and also
along with future interest at the rate of 16% per annum and
Rs.14,50,000/- w.e.f. 1st April 2010. Property of the Respondent No.1
is attached by earlier Order dated 23rd September 2010 passed below

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Exhibit-5 filed for attachment before Judgment in Co-operative Case
No.571 of 2009.

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4.It is significant to note that when the Bank took steps for
execution of said Judgment and Award dated 25th November 2010, at
that stage Respondents filed Miscellaneous Application No.7 of 2014
and sought setting aside of the ex-parte Award. It is specifically
mentioned in the said Application for setting aside Award that the
Respondents were never served with the summons or any notice of
said Cooperative Case No.571 of 2010. The Petitioner-Cooperative
Bank filed Reply to said Application dated 21st July 2014 inter alia
stating that the summons and notice of the said Cooperative Case has
been served on the Respondents and the same are at Exhibits 7 to 12
of the record of the said Cooperative Case. The evidence affidavit has
been filed of the Respondent No.3 and he has been extensively cross-
examined. The said cross-examination is reproduced hereinbelow for
ready reference:-

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ßvtZnkjk rQsZ lk{khnkj Jh- egs’k «;acd rkdkVs ;kapk xSjvtZnkjkrQsZ vWM Jh fo- l- rGsdj ;kapsekQZr myVrikl ‘kiFksoj lq: eyk izLrqrP;k izdj.kkckcr dkfggh ekfgrh ukgh- LkkS es?kuk rkdkVs ;kauk lq/nk izLrqrP;k izdj.kkckcr dkfggh ekfgrh ukgh- rlsp LkkS eaxyk

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fnyhi rkdkVs ;kauk lq/nk izLrqrP;k izdj.kkckcr dkfggh ekfgrh vkgs fdaok ukgh gs eyk ekfgrh ukgh- ekÖ;k vtkZr o iqjkO;kP;k izfrKki=kr dk; fygysys vkgs gs eyk lkaxrk ;s.kkj ukgh- fnyhi rkdkVs gk ek>k HkkÅ vkgs- R;kph lgh eyk vksG[krk ;s.kkj ukgh- gs Eg.k.ks [kjs vkgs dh] lkS eaxyk o Jh fnyhi gs irh&iRuh vkgsr o rs dkjlqG rk fuQkM ft ukf’kd ;sFks ,d= jkgrkr- ehk ek>h lgh vksG[kw ‘kdrks- 10 ch foax vackth uxj] ver/kke] iapoVh ukf’kd gk ek>k ;ksX; o cjkscj iRrk vkgs- gs Eg.k.ks [kjs vkgs dh] dkjlqG rk fuQkM ft ukf’kd gs ek>s eqG xkao vkgs- gs Eg.k.ks [kjs ukgh dh] dkjlqG ;sFks vkeps ofMyksikftZr ?kj vkgs- dkjlqG ;sFks ek>h ‘ksrh vkgs- lk{khnkj iqUgk lkaxrkr dh ofMyksikftZr ‘ksrh vkgs- fu 4 iRrk;knhoj vtZnkj Eg.kwu dks.kkph lgh vkgs gs eyk lkaxrk ;s.kkj ukgh- vtkZoj vtZnkj dza 1 Eg.kwu dks.kkph lgh vkgs gs eh lkaxw ‘kdr ukgh- fu 2 ,s izfrKki=kojhy lgh dks.kkph vkgs gs eyk lkaxrk ;s.kkj ukgh- odhyi= fu 3 oj i{kdkjkaP;k lg;kiSdh vuq daz 1 ph lgh dks.kkph vkgs gh eyk lkaxrk ;s.kkj ukgh- rlsp odhyi=kP;k vuq dza 3 ojhy lgh ek>h ukghfu 2 ojhy vtZnkj dza 3 ph lgh ek>h ukgh- x.ks’k c **a** Wdsyk uksan.khdr xgk.k[kr d:u fnys gksrs dk gs eyk lkaxrk ;s.kkj ukgh- Jh ukjk;.k okGq ukBs ;kauk eh vksG[kr ukgh- dkjlqGph xV daz 240 ph tfeu eyk ekfgrh vkgs- gs Eg.k.ks [kjs vkgs dh] xV dza 240 ph tfeu ek>h o eaxykph vkgs- iqjkO;kps izfrKki= fu 19 ojhy lg;k ekÖ;k ukghrgs Eg.k.ks [kjs ukgh dh] x.ks’k cWadsps iSls cqMo.;kph ek>h bPNk vkgs-

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eh inoh/kj vlwu dkWyste/;s lu 1989 iklwu VsDuhdy vflLVaV

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Eg.kwu uksdjh djhr vkgs-

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myVrikl iw.kZ Qsjrikl ukgh-

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okpys ikghys nkO;kr lkehy dsys-Þ

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(Emphasis added)

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The English translation of the same is as follows:-

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“Cross-examination of Shri Mahesh Tryambak Takate, the
witness on behalf of the Applicant, commenced by Adv. V.
S. Talekar on behalf of the Non-Applicant, on Oath.
I do not know anything about the present matter. Even
Sau. Meghna Takate does not know anything about the
present matter. Similarly, I do not know as to whether
Sau. Mangala Dilip Takate also knows anything about
the present matter. I cannot state as to what has been
written in my application and in the Affidavit in lieu of
evidence. Dilip Takate is my brother. I cannot identify
his signature. It is true to say that Sau. Mangala and
Shri Dilip are husband-wife and they live together at
Karsul, Tal. Niphad, District Nashik. I can identify my
signature. 10, B-wing, Amrut Dham, Ambaji Nagar,
Panchavati, Nashik is my proper and correct address. It
is true to say that Karsul, Tal. Niphad, District Nashik is
my native place. It is not true to say that there is our
ancestral house at Karsul. I have agricultural land at

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Karsul. The witness again states that there is ancestral
agricultural land. I cannot state as to whose signature as
an Applicant appears on Memo of Address – Exhibit-4. I
cannot state as to whose signature as an Applicant No.1
appears on the application. I cannot state as to whose
signature appears on Affidavit-Exhibit-1A. I cannot state
as to whose signature appears at Sr. No.1 from out of the
signatures of the parties appearing on the Vakalatnama-
Exhibit-2. Similarly, the signature appearing at Sr. No.3
on the Vakalatnama is not my signature. The signature
of Applicant No.3 on Exhibit-1 is not my signature. I
cannot state as to whether the registered Mortgage-Deed
was executed in favour of the Ganesh Bank. I do not
know Shri Narayan Balu Nathe. I am aware about the
land bearing Gat No.240 situated at Karsul. It is true to
say that the land bearing Gat No.240 belongs to Mangala
and myself. The signatures appearing on Affidavit in lieu
of evidence-Exhibit-19 are not my signatures. It is not
true to say that I intend to dupe the Ganesh Bank’s
monies. I am a graduate and am working as a Technical
Assistant in the College since the year 1989.
Cross examination completed.
No re-examination.

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Read, seen and filed in the compilation of documents.”

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5.A perusal of the cross-examination of Respondent No.3 clearly
shows that the Respondents are not placing true facts before the
Court. The cross-examination clearly show that a clear attempt is
made to mislead the Court. It is clear that as the Respondents have
taken loan from the Petitioner Co-operative Bank and executed
Mortgage Deed, the Respondents want to avoid payment of the said
loan. Intention of the Respondents is very clear to avoid execution of
said Judgment and Award.

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6.By the impugned Order dated 31st January 2017, the learned
Judge of Cooperative Court has held that summons was not served on
the Respondents and therefore, set aside the said Judgment and
Award dated 25th November 2010 and restored the said Cooperative
Case No.57 of 2010 to the file. The said Order was challenged by the
Petitioner-Cooperative Bank by filing Appeal No.25 of 2018 and the
said Appeal was disposed of by the Order dated 28th March 2019
passed by the learned Member, Maharashtra State Cooperative
Appellate Court at Mumbai by imposing cost of Rs.4,000/-.

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7. A perusal of record clearly shows that as per the Exhibits 7 to

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10, Show Cause Notice and summons have been served on the
Respondents. Apart from that what is significant to note is that on

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27th August 2010, the Application bearing Exhibit 11 has been filed
on behalf of the Respondent Nos.1 to 3 seeking time to file reply in
said Co-operative Case No.57 of 2010. The said Application was
allowed by the learned Judge, Cooperative Court. The said
Application at Exhibit-11 and Order passed thereon reads as under:-

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“ ;kdkeh iz- oknh ua- 1 rs 3 rQsZ fouarh vtZ dh] lnj nkO;kr iz- oknh ua- 1 rs 3 ;kauk dkj.ks nk[kok uksVhl o leUl feGkysys vkgs- ijarq izoknh ua- 1 rs 3 ;kaps odhy ckgsjxkoh xsysys vlY;kus vktjksth tckc@dSfQ;r nsrk ;sow ‘kdr ukgh- R;keqGs izoknh ua- 1 rs 3 ;kauk tckc@dSfQ;r ns.ksdkeh iq<hy eqnr feGkoh-

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gk fouarh vtZ

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lkS eaxyk fnyhijko ykdkVs iz oknh ua-1 ukf’kd

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 (Emphasis added)

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The English translation of the same reads as under:-

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“In this matter, the Request Application on behalf of
Defendant Nos. 1 to 3 is submitted as under:

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In the present suit, Defendant Nos. 1 to 3 have received
a Show Cause Notice and a Summons. However, as the
Advocate for Defendant Nos. 1 to 3 has gone outstation,
today, they are unable to submit their statements/written
statement.

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Hence, it is humbly prayed that, further time may please

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be granted to Defendant Nos. 1 to 3 to submit their
statements / written statement. Hence, this Request
Application.”

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8.Although the said Application at Exhibit-11 is styled in the
manner that it has been filed on behalf of all the Respondents, the
said Application has been signed only by Respondent Nos.1 and 2 and
therefore, learned Cooperative Court has passed the following Order
on 27th August 2010:-

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“Disputants & his Adv. Present.
Adj appl. for opp. No 1 & 2 allowed.
Opp 3 absent. exparte
c/say/w.s. for 14/9
s/d”

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Thus, it is clear that adjournment Application of Opponent
Nos.1 and 2 has been allowed by the learned Judge, Cooperative
Court and as far as the Opponent No.3 is concerned, it is recorded
that he is absent and Order to proceed ex-parte against him was
passed. The Roznama clearly shows that thereafter, on all dates the
Respondents have remained absent and ultimately ex-parte Judgment
and Award was passed on 25th November 2010.

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9. It is significant to note that the Respondents have been served

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with the Suit summons and they have appeared in the case and

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sought adjournment and inspite of that, in the Application seeking
setting aside of Judgment and Award, it has been falsely stated that
the Respondents have not received any notice or Suit summons of the
said Cooperative Case. It is further significant to note that a learned
Single Judge issued notice in this Writ Petition by Order dated 8th
January 2020 and the Respondents were served. The office note
shows that the Respondents were served as per Bailiff report. It is
further significant to note that as inspite of service, none appeared for

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the Respondents and therefore, a learned Single Judge by Order
dated 9th March 2022, issued fresh notice and further directed that
notice to indicate that if Respondents failed to appear, the Court
would be constrained to proceed ex-parte against them. It is fruther
significant to note that inspite of receipt of said notice, the
Respondents have not appeared in the matter. Therefore, following
Order is passed on 21st August 2023:-

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“1. Heard learned counsel appearing for the Petitioner.

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2. A learned Single Judge by order dated 8th January
2020 issued notice to the Respondents and directed the
learned Judge, Co-operative Court, Nashik not to
proceed further.

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3. By order dated 9th March 2022, the learned Single

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Judge noted that although the Respondents are served,
none appears for the Respondents and therefore,
directed the Registry to issue fresh notice indicating that
if the Respondents fail to appear, the Court would be
constrained to proceed ex-parte against them.

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4. As per the office noting dated 30th June 2023, the
Respondents are served.As none appears for the
Respondents, for giving one more and last opportunity,
stand over to 24th August 2023. It is made clear that on
that date, the Writ Petition will be heard finally, subject
to the convenience of the Court.”

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(Emphasis added)

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It is significant to note that inspite of service, Respondents are
not appearing.

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10.This is a case where huge amount is due towards the Petitioner,
which is a Cooperative Bank. The Respondents have come up with a
totally false case that Suit summons has not been served. In the
impugned Orders, it is specifically stated that the Court should adopt
liberal approach while considering the delay condonation
Application. However, this is a case where the Respondents have
come up with totally false case that suit summons has never been
served on them. The orders of condonation of delay and setting aside

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ex-parte decrees are discretionary orders. The discretion is to be
exercised in judicious and reasonable manner. Such discretion is not
to be exercised in favour of litigants who come up with totally false
case and misleads the Court. It is settled legal position that the
litigants should approach the Court with clean hands.

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11.Accordingly, as the Respondents have come up with a totally
false case, this is not a case where the delay can be condoned and ex-
parte Award granted in favour of the Petitioner can be set aside.

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12.Accordingly, the impugned Order dated 31st January 2017
passed by the learned Cooperative Court, Nashik in Miscellaneous
Application No.7 of 2014 as well as the Order dated 28th March 2019
passed by the learned Member, Maharashtra State Cooperative
Appellate Court at Mumbai in Appeal No.125 of 2018 are quashed
and set aside and the said Miscellaneous Application No.7 of 2014 is
dismissed with cost.

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13.The Writ Petition is disposed of in above terms with no order as
to costs.

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 [MADHAV J. JAMDAR, J.]

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Shree Ganesh Sahakari Bank Ltd. v. Smt. Meghana Mahesh Takate and Ors.

Case brief

What is this about?

What did the court decide?

Shree Ganesh Sahakari Bank Ltd. v. Smt. Meghana Mahesh Takate and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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