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Shahu Corner Nagari Sahakari Patsanstha Maryadit and Anr. v. Shri. Ashwin Annaso Jadhav and Anr.

Bombay HC25 Aug 2023WP/4050/2021

Case brief

AI extract

What is this about?

The High Court of Bombay in a writ petition under Article 227 quashed an order of the District Judge restraining a cooperative society from disturbing possession. The High Court held that a plaintiff cannot claim rights via a consent decree executed over attached property obtained by certificate under Section 101 of the Maharashtra Cooperative Societies Act.

What did the court decide?

The rule was made absolute; the impugned order restraining the society is quashed.

Shahu Corner Nagari Sahakari Patsanstha… — Pension and Retirement Benefits | Bombay HC (2023)

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AGK

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.4050 OF 2021

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ATUL

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GANESH KULKARNI

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Digitally signed by ATUL GANESH KULKARNI Date: 2023.08.25 18:04:36 +0530

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Shahu Corner Nagari Sahakari
Patsanstha Maryadit & Anr.… Petitioners
V/s.
Ashwin Annaso Jadhav & Anr.… Respondents

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Mr. Pradeep D. Dalvi with Ms. Priya Dalvi for the
petitioners.

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Mr. Tejpal Ingale with Mr. Yogesh P. Morbale for
respondent No.1.

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CORAM:AMIT BORKAR, J.

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DATED:AUGUST 25, 2023

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P.C.:

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1. Rule. Rule is made returnable forthwith.

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2.This is a petition under Article 227 of the Constitution of
India challenging judgment and order dated 23 March 2021
passed by the learned District Judge-2, Ichalkaranji in
Miscellaneous Civil Appeal No.16 of 2020. By the impugned order,
the Appellate Court has retrained the cooperative society from
disturbing possession of the plaintiff over the suit property till the
final disposal of the suit.

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3.Respondent No.1 has filed Regular Civil Suit No.173 of 2019
seeking declaration that communication dated 9 March 2019

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issued by the Special Recovery Officer while answering objections
under Rule 107 (19-A) is illegal and consequential injunction
restraining society and Special Recovery Officer from disturbing
possession of the plaintiff over the suit property.

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4.The right claimed by the plaintiff is based on consent decree
executed by the borrower (father of the plaintiff) in favour of the
plaintiff (son). It needs to be noted that the subject matter of
consent decree, i.e. the property in relation to which the plaintiff
claims his right was attached under sub-rule (1) of Rule 107 of the
Maharashtra Cooperative Societies Rules, 1961 on 13 July 2010.
Father of the plaintiff had obtained loan from the petitioner/
society. On default made by the father, certificate under Section
101 of the Maharashtra Cooperative Act, 1960 was issued. Sub-
section (3) of Section 101 confer status of conclusive proof to the
contents of such certificate. In furtherance of execution of such
certificate, the society initiated proceedings through Special
Recovery Officer under Rule 107 of the Maharashtra Cooperative
Societies Rules, 1961. The Special Recovery Officer, therefore, in
exercise of powers under sub-rule (11) of Rule 107 attached the
property.

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5.Despite such attachment, the borrower (father of the
plaintiff) transferred the property by consent decree to the
plaintiff. Based on such consent decree, the plaintiff is claiming
ownership right over the property.

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6.The certificate under Section 101 of the Maharashtra
Cooperative Societies Act, 1960 has attained finality. Despite

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7-wp4050-2021.doc

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attachment, transferring such attached property by consent decree
is nothing but decree obtained by collusion which has no force
under Section 44 of the Evidence Act, 1872. Once such property is
attached, the person deriving alleged right of ownership cannot
object the execution of certificate under Section 101.

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7.Despite these facts, the lower Appellate Court granted
injunction in favour of the plaintiff. For the reasons stated above,
such injunction cannot be sustained as the plaintiff is not entitled
to claim any right based on such consent decree. The petitioner
has, therefore, made out a case.

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8. Rule is accordingly made absolute in terms of prayer clause (a). No costs.

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(AMIT BORKAR, J.)

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Shahu Corner Nagari Sahakari Patsanstha Maryadit and Anr. v. Shri. Ashwin Annaso Jadhav and Anr.

Case brief

What is this about?

What did the court decide?

Shahu Corner Nagari Sahakari Patsanstha Maryadit and Anr. v. Shri. Ashwin Annaso Jadhav and Anr.

Case brief

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What did the court decide?

What the court decided

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