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Udayala S/O Ganeshlalji Jain v. State of Maharashtra Thou Commissioner and Registrar (Cooperation ) Thane and Ors.

Bombay HC5 Dec 2023WP/8973/2023

Case brief

AI extract

What is this about?

The High Court at Bombay quashed an order for possession of property under Rule 107 of the Maharashtra Co-operative Societies Rules, 1961. The Court held that issuance of the order was premature as the petitioner had complied with Section 154(2)(A) and the revision challenging the recovery certificate was still pending.

What did the court decide?

The order dated 24th March 2023 passed by the learned Chief Judicial Magistrate, Thane under Rule 107(11)(d) is quashed and set aside.

Udayala S/O Ganeshlalji Jain Vs State of Maharashtra… — Company and Corporate | Bombay HC (2023)

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Dusane

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BHALCHANDRA GOPAL DUSANE

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Digitally signed by BHALCHANDRA GOPAL DUSANE Date: 2023.12.06 11:26:08 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.8973 OF 2023

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Udaylal s/o Ganeshlalji Jain …Petitioner V/s. The State of Maharashtra …Respondents & Ors.

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Mr. Shrivallabh S. Panchpor a/w Mr. Swapnil R. Chopade for Petitioner.

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Mr. S.D. Rayrikar, AGP for State-Respondent No.1 Mr. B.H. Goswami for Respondent Nos. 2 and 3.

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CORAM: MADHAV J. JAMDAR, J. DATE: 5th December 2023

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P.C.:

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1. Heard Mr. Panchpor, learned Counsel appearing for the Petitioner, Mr. Goswami, learned Counsel appearing for Respondent Nos.2 and 3 and Mr. Rayrikar, learned AGP for Respondent No.1- State.

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2. The Petitioner challenges legality and validity of the order dated 24^th March 2023 passed by learned Chief Judicial Magistrate, Thane below Exhibit 1 in Criminal M.A. No. 479 of 2023. The said application was filed under Rule 107 (11) (d-

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(vi)(a) of the Maharashtra Co-operative Societies Rules, 1961 for taking possession of the attached property.

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3. The perusal of the record shows that the Assistant Registrar, Co-operative Societies, Ambernath has issued Recovery Certificate on 3^rd December 2021 for an amount of Rs.20,39,837/- and further directed that from 31^st March 2021, the interest be also recovered at the rate of 13.50 percent per annum on the principal amount of Rs.17,33,896/-. The record further shows that the Petitioner has paid an amount of Rs.13,65,296/- on 12^th August 2021 and further an amount of Rs.1,00,000/- on 11^th December 2021, making aggregate payment of amount of Rs.14,65,296/-. The said payments are not taken into consideration while issuing the Recovery Certificate.

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4. In any case, the factual position clearly shows that the recovery certificate has been issued for an amount of Rs.20,39,837/- and the Petitioner has deposited more than 50% i.e. Rs.14,65,296/-. It is also admitted position that the Revision challenging the said Recovery Certificate is pending before the Divisional Joint Registrar of Co-operative Societies at Belapur, Navi Mumbai. Accordingly, in view of this position,

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as the Revision is pending and as the Petitioner has complied with mandatory provisions of Section 154 2(A) of the said Act, at this stage, the order under Rule 107 could not have been issued. Accordingly the Writ Petition is disposed of by passing following order:

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O R D E R

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(i) The order dated 24^th March 2023 passed by learned Chief Judicial Magistrate, Thane below Exhibit 1 in Criminal M.A. No. 479 of 2023 is quashed and set aside. (ii) The Divisional Joint Registrar of Co-operative Societies, CBD Belapur, Navi Mumbai is requested to dispose of the Revision challenging the legality and validity of the Recovery Certificate dated 3^rd December 2021 expeditiously.

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5. It is clarified that this Court has not considered the merits regarding said Revision and all contentions of the parties on merits are expressly kept open.

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6. 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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Udayala S/O Ganeshlalji Jain v. State of Maharashtra Thou Commissioner and Registrar (Cooperation ) Thane and Ors.

Case brief

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What did the court decide?

Udayala S/O Ganeshlalji Jain v. State of Maharashtra Thou Commissioner and Registrar (Cooperation ) Thane and Ors.

Case brief

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What did the court decide?

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