Dismissed

Shripati Laxman Patil v. the State of Maharashtra and Ors.

Bombay HC9 Oct 2023WP/7427/2021

Case brief

AI extract

What is this about?

This court dismissed writ petitions challenging the validity of a fresh demand notice issued in 2018 for execution of Recovery Certificates from 2004. The court held execution proceedings commenced in 2014 via a remand order, negating the limitation defense.

What did the court decide?

Writ petitions dismissed with no order as to costs; demand notice upheld as valid.

Shripati Laxman Patil Vs the State of Maharashtra… — Execution and Attachment | Bombay HC (2023)

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2023:BHC-AS:36878

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4-wp-7427-2021+.doc

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Sonali

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.7427 OF 2021

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Shripati Laxman Patil...Petitioner
 Versus
The State of Maharashtra & Ors....Respondents

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WITH

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WRIT PETITION NO.7429 OF 2021

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Ku. Deepali Shripati Patil...Petitioner
 Versus
The State of Maharashtra & Ors....Respondents
WITH
WRIT PETITION NO.7428 OF 2021
Smt. Rajani Shripati Patil...Petitioner
 Versus
The State of Maharashtra & Ors....Respondents

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_________________________________________________________________
Mr. Amjith M. Anandhan a/w Mr. Nikhil Mallelwar i/b Mr. Sachin Pawar,
for the Petitioners in all Writ Petitions

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Mr. R. M. Haridas i/b Mr. Shriram S. Redij, for Respondent No.2.
Mrs. V. S. Nimbalkar, AGP, for State-Respondent Nos.1, 3 to 5.

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CORAM : MADHAV J. JAMDAR, J. DATED : 9^th OCTOBER 2023

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JUDGMENT:

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1. Heard Mr. Amjith M. Anandhan, learned Counsel appearing for

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the Petitioners, Mr. R. M. Haridas, learned Counsel appearing for
Respondent No.2 and Mrs. V. S. Nimbalkar, learned AGP, appearing
for Respondent Nos.1, 3 to 5.

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Sonali

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2.The Petitioners are challenging the legality and validity of the
order dated 10th December 2020 passed by the learned Divisional
Joint Registrar, Co-operative Societies, Mumbai Division, Mumbai in
Revision Application Nos.444 of 2018, 445 of 2018 and 446 of 2018

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(“impugned Order”).

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3.It is the case of the Respondent No.2-Society that under
Section 101 of the Maharashtra Co-operative Societies Act, 1960
(“said Act”), three Recovery Certificates have been issued. The details
of the same are set out in tabular format in the impugned Order and

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the same is reproduced herein below:-

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`Sr.`	`Revision Application No.`	`Recovery Certificate amount`
`No`	`.`
`1.`	`R. A. No.444/2018`	`Rs.9,28,829/-`
`2.`	`R. A. No.445/2018`	`Rs.2,86,117/-`
`3.`	`R. A. No.446/2018`	`Rs.1,43,486/-`

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The aforesaid Recovery Certificates were issued under Section
101 of the said Act on 29th March 2004 and have attained finality as
the same were never challenged.

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4. Thereafter, Demand Notice dated 12^th June 2014 was issued by

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the Special Recovery Officer under Rule 107 of the Maharashtra Co-

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Sonali

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operative Societies Rules, 1961 (“said Rules”). The Petitioners filed
Revision Application No.357 of 2014 and the operative Order dated

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20th September 2014 which is passed on the said Revision, is

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reproduced herein below:-

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“O R D E R

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1. The delay in filing the present case is condoned.

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2. The Revision Application No.357/2014 is disposed of.

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3. The impugned letter/order dated 12/06/2014 issued by Respondent Special Recovery & Sale Officer is set aside.

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4. The case is remanded back to the Respondent SRO
for afresh consideration. The Respondent SRO is
hereby directed to decide the Application filed by the
Applicant herein u/r 107 of the M.C.S. Rules 1961 on
merits and in accordance with law after giving a
proper and fair opportunity to the concerned parties
of being heard.

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5. The Respondent Bank and SRO are hereby by
directed not proceed with the impugned recovery
proceeding/execution against the Applicant herein till
disposal of the aforesaid Application u/r 107 of the
M.C.S. Rule 1961.

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6. No order as to cost.”

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(Emphasis added)

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Sonali

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5.Thus, it is clear that by Order dated 20th September 2014, the
learned Divisional Joint Registrar, Co-operative Societies, Mumbai
Division, Mumbai remanded the matter back to the Special Recovery
Officer directing the Special Recovery Officer to decide the
Application filed by the Petitioners under Rule 107 of the said Rules.
The Petitioners have filed Application under Rule 107(19) of the said
Rules. However, it appears that after remand when the matter was
scheduled to be heard on 31st December 2014, an Application has
been filed before the Special Recovery Officer stating that Petitioners
are intending to pay the outstanding amount and that they wanted to
settle the matter by making payment under the ‘One Time Settlement’
(“OTS”) Scheme and time was sought, as Application of OTS was
pending with the bank. Learned Counsel appearing for the Petitioners
states that the said Application for OTS was dismissed by the bank
and the Writ Petition challenging that dismissal has also been
rejected. Thereafter, Special Recovery Officer has issued a fresh
Demand Notice dated 12th August 2020 and the said Demand Notice
has been challenged by filing three separate Revision Applications as
set out herein above.

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6. It is the main contention of Mr. Amjith Anandhan, learned

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Sonali

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Counsel appearing for the Petitioners that the demand raised is
beyond 12 years which is the limitation period for execution of the
Recovery Certificate. He submitted that the Recovery Certificate has
been issued on 29th March 2004 and the fresh Demand Notice is of
20th August 2018 and therefore, the same is barred by limitation. He
further submitted that the original loan itself was not disbursed and
documents showing disbursal of the original loan amount has not
been produced by the Respondent-Bank.

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7.Mr. Haridas, learned Counsel appearing for the Respondent
No.2 submitted that raising of objection in the year 2014 under Rule
107(19) by the Petitioners clearly shows that the execution has been
initiated at least in the year 2014 i.e. before completion of 12 years
period as the Recovery Certificates are of the year 2004. He further
submitted that the limitation is not applicable to the execution of
Recovery Certificate issued under Section 101 of the said Act. He
submitted that Recovery Certificates have attained finality and
therefore, the same cannot be reopened.

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8. As far as the contention that the original loan itself was not disbursed and documents showing disbursal of the original loan amount has not been produced by the Respondent-Bank, it is to be

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Sonali

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noted that the Recovery Certificates are already issued and the same
have attained finality. Therefore, there is no substance in the said
contention.

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9.As far as the contention that the Demand Notice dated 20th
August 2018 is barred by limitation as the Recovery Certificates have
been issued on 29th March 2004, it is to be noted that the Petitioners
by letter dated 17th January 2012 sought extension of time to make
the said payment due to financial difficulties. Thereafter, the Demand
Notice dated 12th June 2014 has been issued. The said Demand
Notice was challenged by filing Revision Applications and in the said
Revision Applications, again the matter was remanded back to the
Special Recovery Officer by specifically directing the Special Recovery
Officer to decide the objection filed by the Petitioners under Rule 107
of the said Rules. The Petitioners have filed objection under Sub Rule
19 of Rule 107 in the year 2014. The same clearly shows that the
execution of the Recovery Certificate has commenced at least in the
year 2014.

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10.It is further significant to note that after remand of the matter
to the Special Recovery Officer in terms of order dated 20th
September 2014 passed by the learned Divisional Joint Registrar, Co-

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Sonali

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operative Societies, Mumbai, it was represented to the Special
Recovery Officer by the Petitioners that they are ready to repay the
said outstanding amount and for that purpose they have filed the
Application under the OTS scheme. It is also an admitted position
that the said application was dismissed and the Writ Petition
challenging the same was also dismissed.

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11.Learned Counsel appearing for the Petitioners, relies on Section
18(1) of the Limitation Act, 1963 which provides that where, before
the expiration of the prescribed period for a suit or application in
respect of any property or right, an acknowledgement of liability in
respect of such property or right has been made in writing signed by
the party against whom such property or right is claimed, or by any
person through whom he derives his title or liability, a fresh period of
limitation shall be computed from the time when the
acknowledgement was so signed. It is the contention of the
Petitioners that Explanation (c) to Section 18 of the Limitation Act,
1963 specifies that such an acknowledgement will not apply to the
execution Application and the Demand Notice. However, it is to be
noted that the Petitioners have filed objection under Rule 107(19) in
the year 2014. Thus, it is clear that execution of the Recovery

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Sonali

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Certificate issued in the year 2004, has commenced at least in the
year 2014. Thus, there is no substance in the contention that the
execution is barred by limitation.

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12.The Petitioners by letter dated 17th January 2012 sought
extension of time to make the said payment due to financial
difficulties. Therefore, the said period is extended. Thereafter, the
Demand Notice dated 12th June 2014 has been issued. The said
Demand Notice was challenged by filing Revision Applications and in
the said Revision Applications, again the matter was remanded back
to the Special Recovery Officer by specifically directing the Special
Recovery Officer to decide the objection filed by the Petitioners under
Rule 107 of the said Rules. The Petitioners have filed objection under
Sub Rule 19 of Rule 107 in the year 2014. The same clearly shows
that the execution of the Recovery Certificates of the year 2004 has
commenced in the year 2014.

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13.It is the contention of the Petitioners that the said Demand
Notice dated 12th June 2014 has been set aside. However, it is to be
seen that the Divisional Joint Registrar, Co-operative Societies has
remanded the matter back to the Special Recovery Officer to
specifically consider the objection filed by the Petitioners in the year

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Sonali

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2014 under Rule 107 of the said Rules. Said fact itself makes it clear
that the execution of Recovery Certificate has started prior to that. It
is further significant to note that the Petitioners have specifically
made representation to the Special Recovery Officer after remand
that the Petitioners are ready to pay the outstanding amount as per
OTS proposal and they have not proceeded with the matter before
the Special Recovery Officer.

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14.In view of the facts and circumstances of this case, the
Respondent No.2-Credit Society is right in issuing fresh Demand
Notice dated 20th August 2018, which is in continuation of earlier
action taken for executing the Recovery Certificate.Thus, in the
facts and circumstances of this case, it cannot be held that the
Demand Notice is barred by limitation.

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15.Mr. Haridas, learned counsel appearing for Respondent No.2
has submitted that no limitation period is applicable for the recovery
proceedings concerning certificates issued under Section 101 of the
said Act. However, as held hereinabove, the execution proceedings in
this case are initiated in the year 2014 for execution of Recovery
Certificate issued in the year 2004 and therefore, the said submission
need not be considered.

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Sonali

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16. Accordingly, there is no substance in the Writ Petitions and the

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same are dismissed however, with no order as to costs.

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[MADHAV J. JAMDAR, J.]

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Shripati Laxman Patil v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Shripati Laxman Patil v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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