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2024 DIGILAW 491 (BOM)

Vidhi v. State of Maharashtra

2024-03-20

B.P.DESHPANDE

body2024
JUDGMENT/ORDER 1. Heard. 2. Rule. Rule is made returnable forthwith. 3. Heard finally with the consent of the learned counsels for the respective parties. 4. Both these matters are filed challenging the order passed by the Assistant Registrar, Co-operative Societies, Umrer Taluka against the petitioner thereby issuing the recovery certificate under Sec. 101 of the Maharashtra Co-operative Societies Act, 1960. 5. The learned counsel for the petitioner would submit that first of all no procedure has been followed as provided under Rule 86A to 86F and that no case is registered on an application filed by respondent No.2. He submits that though notice was issued to the petitioner to appear on 15/9/2023, the concerned Assistant Registrar, Umrer was himself absent. No opportunity was given to the petitioner to file any reply or contest the said proceedings. He submits that the impugned order is passed mechanically and without application of mind and more specifically such order nowhere show a case number, the date of order or the person who appeared before him on the day when the matter was fixed. 6. Learned AGP would submit that the instructions are awaiting and therefore, the matter could be postponed. 7. The learned counsel appearing for the respondent No.2 submits that the applications were filed for recovery of the loan amount and accordingly orders were passed. 8. Sec. 101 of the Maharashtra Co-operative Societies Act, 1960 read thus: 101. 6. Learned AGP would submit that the instructions are awaiting and therefore, the matter could be postponed. 7. The learned counsel appearing for the respondent No.2 submits that the applications were filed for recovery of the loan amount and accordingly orders were passed. 8. Sec. 101 of the Maharashtra Co-operative Societies Act, 1960 read thus: 101. [Recovery of certain sums and arrears due to certain societies as arrears of land revenue.] [(1) Notwithstanding anything contained in Sec. 91, 93 and 98, on an application made by a resource society undertaking the financing of crop and seasonal finance as defined under the Bombay Agricultural Debtors Relief Act, 1947, [or advancing loans for other agricultural purposes repayable during a period of not less than eighteen months and not more than five years] for the recovery of arrears of any sum advanced by it to any of its members on account of the financing of crop or seasonal finance [or for other agricultural purposes as aforesaid] or by a crop-protection society for the recovery of the arrears of the initial cost or of any contribution for obtaining services required for crop-protection society or for the recovery of the arrears of the initial cost or of any contribution for obtaining services required for crop protection which may be due from its members or other owners of lands included in the proposal (who may have refused to become members) or by a lift irrigation society for the recovery of arrears of any subscription due from its members for obtaining services required for providing water supply to them, [or by a Tulaka or Block level village artisans multipurpose society advancing loans and arranging, for cash credit facilities for artisans for the recovery of arrears of its dues, ] [or [***], by a co-operative dairy society advancing loans for the recovery of arrears of any, sum advanced by it to any of its-members or by an urban co-operative bank for the recovery of arrears of its dues, [or any sum advanced by the District Central Co-operative Bank to its members or by non-agricultural co-operative credit society for the recovery of the arrears, of its dues] or by salary-earners co-operative society for the recovery of arrears of its dues, or by a fisheries co-operative society for the recovery of arrears of its dues, ] [or by any such society or class of societies, as the state Government may from time to time, notify in the Official Gazette, for the recovery of any sum advanced to, or any subscription or any other amount due from, the members of the society or class of societies so not notified;] and [on the society concerned furnishing a statement of accounts and any other documents as may be prescribed] in respect of the arrears, [the Registrar may, after making the inquiry in such manner as may be prescribed, grant a certificate for the recovery of the amount stated therein to be due as arrears. The application for grant of such certificate shall be made in such form and by following such procedure, accompanied by such fees and documents as may be prescribed] [Explanation I]. - For the purposes of this sub-sec., the expression "other agricultural purposes" includes dairy, pisciculture and poultry.] [***] (2) Where the Registrar is satisfied that [the concerned society has failed to take action under the foregoing sub-sec. in respect of any amount due as arrears, ] the Registrar may, of his motion, after making such inquiries [as may be prescribed], grant a certificate for the recovery of the amount stated therein to be due as arrears and such a certificate shall be deemed to have been issued as if on an application made by the society concerned. (3) A certificate granted by the Registrar under sub-sec. (1) or (2) shall be final and a conclusive proof of the arrears stated to be due therein, and the same shall be recoverable according to the law for the time being in force [as arrears of land revenue. A revision shall lie against such order or grant of certificate, in the manner laid down under Sec. 154 and such certificate shall not be liable to be questioned in any court]. (4) It shall be lawful for the Collector and the Registrar to take precautionary measures authorised by Secs. 140 to 144 of the Bombay Land Revenue Code, 1879 or any law or provision corresponding thereto for the time being in force, until the arrears due to [the concerned society], together with interest and any incidental charges incurred in the recovery of such arrears, are paid, or security for payment of such arrears is furnished to the satisfaction of the Registrar. 9. Sub-sec. 1 as quoted above specifically provides that the application has to be filed by the society for recovery of the loan advanced to its members, in a particular format. Once such application is filed along with the necessary documents, the Registrar is duty bound to conduct an enquiry as prescribed and thereafter grant certificate for recovery of amount as due from the members of the society. 10. Chapter VIII-A of the Rules deals with grant of certificate for recovery under Sec. 101 of the said Act. Rules 86A to 86F read thus: 86A. 10. Chapter VIII-A of the Rules deals with grant of certificate for recovery under Sec. 101 of the said Act. Rules 86A to 86F read thus: 86A. Application for grant of certificate for recovery (1) Every application for grant of certificate for recovery under Sec. 101 shall be in Form "U". Such application shall be affixed by the court fees of rupees one hundred. (2) Such application shall contain the claim of dues of the society against the persons from whom the amount claimed is due. (3) Such application shall state whether the person against whom the amount claimed as due is a member of the society or not. (4) To every such application there shall be accompanied a list of persons and the following papers, - (i) letter of authority, authorising officer of the society to present the application and to represent the society before the Registrar; (ii) certified true copy of the up to date extract of the account of dues; (iii) original copy of the treasury challan or any other proof of deposit of fees; (iv) copy of the notice given by the society to its member; (v) certified true copies of the relevant documents [copies of the loan documents such as loan application, promissory note, loan agreement, etc.]: (5) Every such application may be presented, in person, in the office of Registrar during office hours by the authorised officer of the society or its Advocate. 86B. Scrutiny of applications and notice to parties (1) On receipt of the application, the Registrar shall satisfy that the application is complete in all respects and thereafter proceed to register it. (2) If the application is not complete the Registrar may, call upon the society to comply with, within a period of seven days, such requirements as he may deem fit. (3) On compliance of the requirements under sub-rule (2), the application shall be registered. If the requirements are not complied with, within the period specified under sub-rule (2), the Registrar shall dismiss the application. (4) On registering the application the Registrar shall, within fifteen days, issue a notice to the opponent requiring him to file his written statement on the day, date and place as specified in the notice. Such notice shall be served by registered post acknowledgment due or if the opponent could not be easily found by publication thereof in atleast one local daily newspaper. Such notice shall be served by registered post acknowledgment due or if the opponent could not be easily found by publication thereof in atleast one local daily newspaper. The provisions of the Code of Civil Procedure, 1908, shall mutatis mutandis apply to such public notice. 86C. Appearance of parties and consequences of non-appearance (1) On the date fixed as aforesaid, the opponent shall appear either personally or through his advocate or his representative before the Registrar and shall file a written statement in his defence. The Registrar may grant adjournment for period not exceeding fifteen days in the first instance to file a written statement. (2) On the date of hearing, if the applicant appears and the opponent or any of the opponents, if more than one, does not or do not appear, as the case may be, the Registrar shall satisfy himself that all the opponents are duly served the notices and order the applicant to prove the claim on the next date and decide the application ex-parte. Provided that, before deciding the application, if the opponent appears and shows a sufficient cause for his previous non-appearance on the earlier occasions, he shall be heard in the matter as if he had appeared before the Registrar on the first day. (3) If, on the date fixed for the hearing, the opponent appears and applicant does not appear, - (i) The Registrar may issue a recovery certificate on admittance by the opponent; (ii) non-appearance of the applicant would not be reason for dismissal of the claim and the Registrar shall decide the application on merit. 86D. Production and Inspection of documents (1) The parties shall file the documents referred to in the pleadings at the time of filing application and statement of defence, as the case may be. If either party satisfies the Registrar that any document is relevant and the same is in the custody of the opposite party, the Registrar may, by an order in writing, direct such party to produce such document on the next date of hearing. However, no such application shall be entertained from the opponent before filing his written statement in defence. If either party satisfies the Registrar that any document is relevant and the same is in the custody of the opposite party, the Registrar may, by an order in writing, direct such party to produce such document on the next date of hearing. However, no such application shall be entertained from the opponent before filing his written statement in defence. (2) If the party so ordered, fails to produce such documents on the next date of hearing, the Registrar may draw adverse inference against such party and hearing of the original application shall not be postponed till filing of documents or for the reasons of such non compliance of the order. (3) If the Registrar is satisfied that the documents required to be produced, cannot be brought before the Registrar for sufficient reasons like its volume or otherwise, the Registrar may allow the opposite party to take inspection of the documents within seven days from the date of order of such inspection. (4) If the Registrar is satisfied that the opponent had no access to the documents earlier and the filing of additional statement is necessary, he may allow the filing of such additional statement. In no other case, such additional statement shall be allowed to be filed. 86E. Procedure for Hearing of application. (1) On receipt of the statement in defence of the opponent the applicant society shall prove contents of the application and also deal with the contention of the defences. The opponent likewise may file reply in support of the defence on the next date, if he desires. No cross examination of any of the parties shall be permitted. (2) On receipt of the replies, the Registrar shall proceed to hear oral arguments of the parties and shall close the proceeding for the order. (3) Every endeavor shall be made by the Registrar to decide the application within three months from the first date of hearing. However, the Registrar may decide the application beyond the period of three months for the reasons to be recorded in writing. 86F. Judgment, Order and Certificate After hearing the arguments of the parties, the Registrar shall issue a reasoned judgment and pass an order for the grant or the rejection of the application. The Registrar, thereafter, shall issue a Certificate in form "V". 86F. Judgment, Order and Certificate After hearing the arguments of the parties, the Registrar shall issue a reasoned judgment and pass an order for the grant or the rejection of the application. The Registrar, thereafter, shall issue a Certificate in form "V". The judgment and the certificate shall bear his seal, signature and date.] The above provisions clearly goes to show that the application filed by the society for grant of recovery certificate shall be in form 'U '. The application must contain all the details and the documents annexed to it. After the scrutiny of the said application, notices are required to be issued to the parties. Appearance of the parties is followed by the production and inspection of the document and thereafter hearing of the application and finally issuance of certificate in form 'V '. 11. The impugned order passed in the present proceedings (Annexure-B) read thus: 12. Notice issued by the Assistant Registrar dtd. 16/6/2023 shows the names of the petitioners/borrowers along with the guarantor. It gives the details that an application is filed on behalf of the society including the arrears of loan. However, the notice also nowhere shows specific case number of the application filed for recovery of the loan. 13. The impugned order as quoted above clearly revealed that the concerned authority even failed to mention the case number, the date of order and even the name of the persons who appeared on behalf of borrowers/guarantors on 15/9/2023. 14. Learned counsel for the petitioner would submit that on 15/9/2023 the Assistant Registrar of Umrer was on leave and therefore, the matters were not taken up on that date. 15. The above order would clearly go to show that except the signature of the concerned authority and the amount mentioned therein, there is no application of mind with regard to the so called enquiry allegedly conducted by the said authority. 16. The learned counsel for the petitioner would submit that no enquiry was conducted as opportunity was not given to the petitioners to file their say/written statement. Even the copy of application along with the documents filed by the society is not furnished to the petitioners. 17. It is really unfortunate to note that orders as quoted above are passed in a very casual manner and even though without disclosing the date, the case number and without conducting any enquiry as provided under the Act. Even the copy of application along with the documents filed by the society is not furnished to the petitioners. 17. It is really unfortunate to note that orders as quoted above are passed in a very casual manner and even though without disclosing the date, the case number and without conducting any enquiry as provided under the Act. 18. Recovery Officer/Assistant Registrar is acting in a quasi-judicial manner and therefore, he is duty bound to follow the procedure laid down under Sec. 101 and Rules 86A to 86F. 19. In these matters, one thing is clear that the orders are issued without conducting any enquiry and giving any opportunity to the borrowers/petitioners. 20. The learned counsel for the petitioners submit that there are similar matters and orders issued by the concerned authority without conducting any enquiry and even though the concerned officer was on leave on 15/9/2023, no opportunity was given to the petitioners and other borrowers to put up their case. 21. Considering the gravity of the orders passed by the Assistant Registrar, Umrer and the manner in which the applications are disposed of it, is without registering the case, without conducting any enquiry, without mentioning the day on the order. The Divisional Joint Registrar, Co-operative Societies, Nagpur is requested to enquire into the matter and take necessary action if required. 22. In view of the above observations, the impugned orders are quashed and set aside. The concerned authority i.e. Assistant Registrar, Umrer is directed to conduct the necessary enquiry as provided under Sec. 101 read with Rule 86A to 86F of the said Act and Rules and decide the matter afresh that too by giving opportunity to the petitioners/borrowers in accordance with law and by following the principles of natural justice. 23. The copy of order of this Court forwarded to Joint Registrar, Co-operative Societies, Pune for the purpose of necessary action. 24. Rule is made absolute in the above terms.