Remanded

Shree Balaji Nagri Sahakari Pathsanstha Mydt. Ichalkaranji through Recovery Clerk Prakash C. Mane v. Sou. Kusum Raghunath Bhosale and Ors.

Bombay HC5 Jul 2023WP/3053/2022

Case brief

AI extract

What is this about?

This single-judge order discharged the writ petition challenging the dismissal of a revision application against a Deputy Registrar's order refusing execution of a recovery certificate against non-members. The High Court remitted the matter for fresh consideration with a hearing on the question of executability.

What did the court decide?

Remitted to the Deputy Registrar for fresh decision on executability of the recovery certificate after a hearing; stay on execution against respondents

Shree Balaji Nagri Sahakari Pathsanstha… — Contract and Commercial Disputes | Bombay HC (2023)

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54-WP3053-2022.DOC

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Santosh

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 3053 of 2022

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SANTOSH SUBHASH KULKARNI

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Digitally signed by SANTOSH SUBHASH KULKARNI Date: 2023.07.07 10:40:25 +0530

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Shri Balaji Nagri Sahakari Patsanstha Maryadit, Ichalkaranji ...Petitioner

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Versus

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Kusum Raghunath Bhosale & ors. …Respondents

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Mr. Manoj Patil, for the Petitioner. Mr. Kalpesh Patil, for Respondent Nos.5-a to 5-d. Mrs. V. S. Nimbalkar, AGP for the State.

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CORAM: N. J. JAMADAR, J. DATED : 5^th JULY, 2023

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Order:

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Heard the learned Counsel for the parties.

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The challenge in this petition is to an order dated 19^th October, 2020 passed by the learned Divisional Joint Registrar, Cooperative Societies, Kolhapur Division, Kolhapur in Revision Application No.67 of 2019, whereby the revision preferred by the petitioner Society came to be dismissed af>rming the order passed by the Deputy Registrar on 1^st March, 2019 directing the petitioner not to execute the recovery certi>cate issued under Section 101 of the Maharashtra Co-operative Societies Act, 1960 (“the Act, 1960”) against the legal representatives of Mr. Pradeep Dinkar Laykar, who was one of the guarantors to the loan

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54-WP3053-2022.DOC

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availed by Mrs. Kusum Raghunath Bhosale, the principal borrower.

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The Deputy Registrar had issued recovery certi>cate by an order dated 18^th June, 2018. In execution of the said recovery certi>cate, the immovable property of respondent Nos.5-a to 5-d came to be attached. In the intervening period, the issue as to whether respondent Nos.5-a to 5-d were made the members of the petitioner Society, after the demise of their predecessor in title Pradeep Dinkar Laykar, seems to have been raised.

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By an order dated 1^st March, 2019, the Deputy Registrar directed that recovery certi>cate be not executed against respondent Nos.5-a to 5-d as the record indicated that respondent Nos.5-a to 5-d were not made the members of the petitioner Society and the said fact was not brought to the notice of the competent authority while issuing the recovery certi>cate.

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Mr. Manoj Patil, the learned Counsel for the petitioner, submitted that respondent Nos.5-a to 5-d had in fact participated in the proceedings in which the recovery certi>cate came to be granted and raised all the contentions. Moreover, the order dated 1^st March, 2019 came to be passed without providing an opportunity of hearing to the petitioner Society.

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54-WP3053-2022.DOC

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Mr. Kalpesh Patil, the learned Counsel for respondent Nos.5-a to 5-a would submit that a recovery certi>cate can not be enforced against the person, who is not the member of the Society. The authorities below recorded a >nding that the petitioner Society had not placed any material on record to demonstrate that respondent Nos.5-a to 5-d were made the members of the petitioner Society. It was further submitted that the petitioner Society has not been proceeding against the principal borrower and only respondent Nos.5-a to 5-d are being unjusti>ably proceeded against by the petitioners.

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Evidently, respondent Nos.5-a to 5-d participated in the proceedings in which the certi>cate under Section 101 of the Act, 1960 came to be granted. The question as to whether the certi>cate could have been executed against respondent Nos.5-a to 5-d on the ground that they were not the members of the petitioner Society, could have been lawfully decided after providing an opportunity to the petitioner Society. The question as to whether respondent Nos.5-a to 5-d were the members of the petitioner Society is essentially one of fact. The Deputy Registrar thus could not have decided the same without giving an opportunity of hearing to the petitioner.

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54-WP3053-2022.DOC

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For the forgoing reasons, the matter is required to be remitted back to the Deputy Registrar, Co-operative Societies, Hatkanangale, for afresh decision on the question of the executability of the recovery certi>cate qua respondent Nos.5-a to 5-d after providing an effective opportunity of hearing to the parties.

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The petition thus stands allowed.

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The matter stands remitted to the Deputy Registrar, Cooperative Society, Hatkanangale, for afresh decision on the question of executability of the recovery certi>cate under Section 101 of the Act, 1960 qua respondent Nos.5-a to 5-d after providing an effective opportunity of hearing to the parties.

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In the meanwhile, till the decision in the said matter, the recovery certi>cate be not executed against respondent Nos.5-a to 5-d.

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Respondent Nos.5-a to 5-d shall also not create any third party interest in the attached property till the said decision.

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It is hereby made clear that this Court has not entered

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into the merits of the matter and all issues are kept open for consideration by the Deputy Registrar.

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54-WP3053-2022.DOC

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The parties shall appear before the Deputy Registrar on

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24^th July, 2023.

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In view of disposal of the petition, interim application(s), if

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any, shall stand(s) disposed.

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[ N. J. JAMADAR, J. ]

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Shree Balaji Nagri Sahakari Pathsanstha Mydt. Ichalkaranji through Recovery Clerk Prakash C. Mane v. Sou. Kusum Raghunath Bhosale and Ors.

Case brief

What is this about?

What did the court decide?

Shree Balaji Nagri Sahakari Pathsanstha Mydt. Ichalkaranji through Recovery Clerk Prakash C. Mane v. Sou. Kusum Raghunath Bhosale and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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