JUDGMENT : C.L. Soni, J. 1. These two petitions are filed under Articles 226 and 227 of the Constitution of India, by the then members of the Managing Committee of respondent No. 3-The Radodara Group Vividh Karyakari Seva Sahkari Society Ltd. ('the Society' for short) against the common judgment and order dated 23.11.2005 passed by the Gujarat State Co-operative Tribunal ('the Tribunal') in Appeal No. 181 of 2001 and Appeal No. 1328 of 2002 preferred by the petitioners and the society respectively. The appeals were preferred against the order made by the Inquiry Officer-District Registrar under Section 93 of the Gujarat Co-operative Societies Act, 1961 ('the Act'). One another Appeal No. 217 of 2003 was also preferred by the Secretary of the society. All the appeals were decided by the Tribunal by common judgment and order. 2. It appears that during the audit of the society for the period from 1.7.1996 to 30.6.1998, some financial irregularities were noticed and therefore, the auditor in his report recommended to make inquiry under Section 93 of the Act for fixing the responsibilities for the loss caused to the society. Based on such audit report, inquiry was made on various issues. The Inquiry Officer held the petitioners responsible only for irregularities alleged in issue No. 4(e). As per issue No. 4(e), the petitioners did not reinvest the amount of Rs. 3,20,786/- permitted to be withdrawn by the District Registrar from the controlled account of the society and because of that, said amount was washed out in loss. 2.1 The Inquiry Officer found that the petitioners as committee members used the amount for other purposes and caused loss of interest to the society and held the petitioners proportionately and jointly responsible for such loss of interest. 3. Being aggrieved by the order of the Inquiry Officer on issue No. 4(e), the petitioners preferred Appeal No. 181 of 2001 and the society preferred Appeal No. 1328 of 2002 for not holding the petitioners responsible on other issues. These appeals were heard by the Tribunal with the appeal preferred by the Secretary. 4. The Tribunal partly allowed all the appeals by the impugned judgment and order. These appeals were heard by the Tribunal with the appeal preferred by the Secretary. 4. The Tribunal partly allowed all the appeals by the impugned judgment and order. So far as Appeal No. 181 of 2001 is concerned, though it was partly allowed, the order of the Inquiry Officer fixing the responsibility of the petitioners on issue No. 4(e) is not disturbed, however in Appeal No. 1328 of 2002 of the society, the order of the Inquiry Officer is interfered with to the extent that on issue No. 3(a), the petitioners are held responsible for 50% of the amount of Rs. 5,40,233.34/- with Secretary of the society and the responsibility of each of the petitioners is equally fixed to the extent of Rs. 22,501/- and on issue No. 4(b), the petitioners are held equally responsible for loss of Rs. 64,680/- caused to the society and each of the petitioners is held liable to the extent of Rs. 5,390/-. 5. Issue No. 3(a) and issue No. 4(b) in respect of which the petitioners are held responsible by partly allowing the appeal of the society are that the petitioners caused loss of interest amount of Rs. 5,40,233.34/- ps. by not recovering this amount and closing the accounts of the defaulting members by only recovering the principal amount and that the petitioners gave adjustment of share capital of Rs. 64,680/- against the outstanding amounts of the defaulting members. 6. Learned advocate Mr. Ashish Shah appearing for the petitioners submitted that the Inquiry Officer had not quantified the extent of responsibility for each of the petitioners in connection with issue No. 4(e). Mr. Shah submitted that though the petitioners were permitted to withdraw the amount of Rs. 3,20,786/- by different orders and such amount was to be reinvested as per the order of the District Registrar, however, the society having suffered huge loss and was at the same time required to pay higher rate of interest to the bank against the loan taken by the society, the petitioners as per their wisdom decided to pay to the bank to save the society from paying higher rate of interest and as against the actual loss of interest by not reinvesting the amount, the petitioners could save the society from paying higher rate of interest to the bank. Mr. Mr. Shah submitted that though the Tribunal has recorded finding that by such act of the petitioners, no loss of interest was caused to the society, however the Tribunal has not interfered with the order of the Inquiry Officer on issue No. 4(e). Mr. Shah submitted that if the petitioners were not responsible to cause loss of interest to the society but by their act, if the society was benefited, the petitioners could not be made responsible for payment of any amount towards loss of interest to the society. On issue Nos. 3(a) and 4(b), learned advocate Mr. Shah submitted that the petitioners in the best interest of the society to recover maximum outstanding dues, took decision to waive some interest on outstanding amount and to give credit of the share capital to each of defaulting members. He submitted that if such decision was with bona fide intention to get back the maximum amount against the outstanding dues of the members, it cannot be said that the petitioners had committed any illegality. 7. Learned advocate Mr. Arvind Yadav for learned advocate Mr. S.N. Thakkar appearing for the society on the other hand submitted that once the Inquiry Officer recorded finding that the petitioners had failed to reinvest the amount permitted to be withdrawn from the controlled account of the society and thereby caused loss of interest to the society, the petitioners would not be entitled to claim any benefit on the ground that they had repaid the amount of loan so as to save the society from paying higher rate of interest. He submitted that the Tribunal being the Appellate Court having concurred with the finding recorded by the Inquiry Officer on issue No. 4(e), this Court in exercise of the jurisdiction under Articles 226 and 227 of the Constitution of India, may not interfere with the impugned judgment and order. He submitted that Section 93 of the Act does not provide that only when there is loss caused to the society, the powers thereunder could be exercised. He submitted that Section 93 of the Act does not provide that only when there is loss caused to the society, the powers thereunder could be exercised. He submitted that moment it is found that any person who has taken part in the organization or management of the society is found during inquiry, inspection or audit to have misapplied or retained or become liable or accountable for any money or property of the society or guilty of misfeasance or breach of trust in relation to the society, the Registrar would be under statutory obligation to require him to repay or restore money or determine the extent of compensation in regard to such misfeasance or breach of trust to the society. He submitted that in connection with issue No. 4(e), when clear finding is recorded that the petitioners committed breach of condition by not reinvesting the amount of controlled account of the society, it was an act of misfeasance in relation to such amount of the society, and therefore, the petitioners are rightly held responsible under Section 93 of the Act. He submitted that such being the concurrent finding of fact was recorded by the Inquiry Officer and the Tribunal, whether there was actual loss of interest to the society or not would pale into insignificance. He thus urged to dismiss the first petition. 8. As regards the second petition, Mr. Yadav submitted that though the petitioners were required to give some relaxation in payment of interest on principal amount recoverable from the defaulting members and though it was not permissible to the petitioners to give adjustment of the share capital against the outstanding amount of the society, the petitioners caused huge loss to the society by fully waiving the interest and by giving adjustment of share capital against the outstanding dues of the society, however the Inquiry officer for the reasons not germane on issue No. 3(a) and issue No. 4(b) exonerated the petitioners. The Tribunal therefore, rightly interfered with such order of the Inquiry Officer and the petitioners are rightly held equally responsible for the loss caused to the society. He therefore, submitted that the Court may not interfere with the judgment and order made by the Tribunal in the appeal preferred by the society. 9. The Tribunal therefore, rightly interfered with such order of the Inquiry Officer and the petitioners are rightly held equally responsible for the loss caused to the society. He therefore, submitted that the Court may not interfere with the judgment and order made by the Tribunal in the appeal preferred by the society. 9. The Court having heard learned advocates for both the sides finds that as regards issue No. 4(e), the Inquiry Officer though found that the petitioners acted contrary to the permission given by the District Registrar to withdraw the amount from the controlled account of the society, by not reinvesting the amount of Rs. 3,20,786/- and caused loss of interest of society, however, the liability of each of the petitioners was not quantified in terms of money. But, the petitioners were held jointly responsible for such loss of interest. In connection with such order of the Inquiry Officer on issue No. 4(e), the Tribunal has recorded finding that since the society was not financially sound and with insufficient funds, it was paying interest to the bank and under these circumstances, it was decided to make payment from the amount of controlled account to the bank to save the society from paying higher rate of interest than the interest, the society could not get by reinvesting the amount withdrawn from the controlled account. As observed by the Tribunal, in overall, there was no loss of interest to the society. The Tribunal has observed that still however, as per the condition for withdrawal of amount from the controlled account, the issue is between the Registrar and the society and it is open to the Registrar to take appropriate action but no issue arises in connection with the loss under Section 93 of the Act. Then, the Tribunal has further observed that since the amount of the controlled account was used without permission, no interference in fixing the responsibility of the petitioners by the Inquiry Officer was required. 10. From the above observations of the Tribunal, it appears that the petitioners had utilized the amount of controlled account of the society for payment of the dues of the bank and the decision to make payment to the bank was stated to be, to save higher interest being paid to the bank by the society in the situation when the society's financial condition was critical. Though it could be said that the petitioners did not act as per the conditions of the permission granted by the Registrar to withdraw the amount from the controlled account, however, it is not the case that such amount was used for any other purpose not related to the requirement of the society. However, learned advocate Mr. Yadav while referring to the affidavit-in-reply filed on behalf of the society, submitted that the auditor had in his report pointed out that the members of the managing committee-the petitioners did not make reinvestment of the amounts though different permissions for withdrawal of the amounts granted by the District Registrar was with condition to reinvest the amount and by violating such condition, the society was deprived of the benefit of interest and thereby loss of interest was caused to the society. However as observed by the Tribunal, in overall consideration, as against the requirement of payment of interest to the bank by the society, there would not be loss of interest to the society when the amount was utilized to pay the dues of the bank. Such being the finding recorded by the Tribunal and the society having not come in a petition to challenge such finding given by the Tribunal in the appeal preferred by the petitioners, the Court finds that the Tribunal failed to exercise its jurisdiction in not interfering with the order of the Inquiry Officer on issue No. 4(e) though it appears from the operative part of the common judgment and order of the Tribunal that Appeal No. 181 of 2001 was partly allowed with other appeals. 11. Learned advocate Mr. Yadav however submitted that violating the condition relating to use of the amount of the controlled account of the society was not only misapplication of the fund of the society but also amounted to misfeasance in relation to the fund of the society for which the petitioners were responsible and therefore, irrespective of the fact, whether any actual loss was caused to the society or not, provisions of Section 93 of the Act would mandate to pass order for restoring the loss caused to the society. 12. Learned advocate Mr. 12. Learned advocate Mr. Yadav relied on the meaning of 'Misfeasance' given in The Law Lexicon so as to submit that improper doing of an act which a person might lawfully do, is a misfeasance which stands covered by Section 93 of the Act and once misfeasance is proved, the law as per Section 93 should take its own course irrespective of the fact that by act of misfeasance, any loss was caused or not. The Court, however finds that it is not a case where reinvestment of the amount withdrawn from the controlled account of the society was not done so as to use the same either for the purpose not related to the society or for any personal gain of the petitioners but, it was used having regard to the circumstances relating to financial position of the society. The powers under Section 93 of the Act are not meant to be utilized to repay or restore the money even though no loss is found to have been caused to the society. In the case on hand, as regards issue No. 4(e), as observed by the Tribunal, since the amount of controlled account was used for payment of the amount to the bank to save the society from paying higher interest to the bank, thereby preventing the society from incurring higher loss of interest than the interest benefit which the society would have earned by reinvestment of the amount of the controlled account, it would not call for fixation of any responsibility under Section 93 of the Act of the petitioners. 13. Learned advocate Mr. Yadav relied on the following judgments so as to submit that once it is found that loss was caused to the society, liability fixed under Section 93 cannot be set aside and that in the concurrent funding of facts recorded by the authorities below, the Court may not interfere in exercise of the powers under Articles 226 and 227 of the Constitution of India. (1) In the case of Pravinsinh Dilubha and others Vs. District Registrar, Bhavnagar, reported in 2003 C.T.J. 343; (2) In the case of Lalitaben Ranjitbhai Patel Vs. District Registrar Co-operative Societies, reported in 2012 (2) GCD 1246 ; (3) In the case of Ishwarbhai Narottambhai Patel Vs. K.H. Trivedi, reported in 2003 C.T.J. 289; (4) In the case of Sant Lal Gupta and others Vs. District Registrar, Bhavnagar, reported in 2003 C.T.J. 343; (2) In the case of Lalitaben Ranjitbhai Patel Vs. District Registrar Co-operative Societies, reported in 2012 (2) GCD 1246 ; (3) In the case of Ishwarbhai Narottambhai Patel Vs. K.H. Trivedi, reported in 2003 C.T.J. 289; (4) In the case of Sant Lal Gupta and others Vs. Modern Cooperative Group Housing Society Limited and others reported in (2010) 13 SCC 336 . 14. The Court having gone through the above judgments finds that in the facts of the case, the judgments will have no application inasmuch as though the Tribunal has recorded finding that there was no loss caused to the society for the action under Section 93 of the Act, the Tribunal failed to exercise its powers to interfere with the order made by the Inquiry Officer. Therefore, it is a case where this Court should exercise its powers under Articles 226 and 227 of the Constitution of India to set at naught the order made by the Tribunal in Appeal No. 181 of 2001 and consequently to set aside the order of Inquiry Officer in connection with the issue No. 4(e). 15. However, as regards second petition, being Special Civil Application No. 24886 of 2005, is concerned, the Court finds that the petitioners could not point out as to how the findings recorded by the Tribunal of causing loss to the society by closing the accounts of defaulting members by accepting only principal amount and waiving huge interest amount and also by giving adjustment of the share capital against the outstanding amounts are in any way erroneous. Learned advocate Mr. Ashish Shah however submitted that it was the Secretary who was responsible for closing the accounts of the defaulting members by just accepting the principal amounts outstanding against them. But, the Court finds that though the decision to give some relaxation in payment of interest was taken and the petitioners as committee members were though responsible to ensure that only to that extent, relaxation was given in payment of interest, however they allowed closing of the accounts by the Secretary of defaulting members by accepting only the principal amount with reason that no amount was received from the defaulting members towards interest payable on outstanding dues of the society. In the same way, the petitioners would not be absolved of their responsibility as members of the managing committee to give credit to the defaulting members of their share capital against their outstanding dues. It could not be disputed by learned advocate Mr. Shah that such credit or adjustment of the share capital against the dues payable by defaulting members was in no way permissible in law. Therefore, waiver of interest amount and acceptance of only principal amount causing huge loss of interest to the society and also giving adjustment/credit of the share capital against the outstanding dues payable by defaulting members, would certainly be the matters covered under Section 93 of the Act and the Inquiry Officer was therefore required to determine the responsibility of the petitioners under Section 93 of the Act. That having not been done, the Tribunal rightly interfered with the order made by the Inquiry Officer for the issue Nos. 3(a) and No. 4(b) by partly allowing the appeal of the society. The judgment and order made by the Tribunal in Appeal No. 1328 of 2002 is therefore not required to be interfered with. 16. In the result, the first petition, being Special Civil Application No. 24885 of 2005, is allowed. The judgment and order of the Tribunal in Appeal No. 181 of 2001 is quashed and set aside and the order under Section 93 of the Act in connection with issue No. 4(e) is quashed and set aside. Rule is made absolute accordingly. The second petition, being Special Civil Application No. 24886 of 2005, is dismissed. Rule is discharged. Interim relief, if any, stands vacated. Application Allowed