-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6456 OF 2009 Prathamik Shikshak Sahakari Bank Ltd, Satara. ..Petitioner. Versus Bebi Gulab Katkar Since deceased through her heirs and LRs. and Ors. ..Respondents. Mr. Dilip Bodake for the petitioner. Coram : R. V. MORE, J. Date : June 28, 2010. P. C. : 1. Heard Mr. Dilip Bodake, learned counsel appearing on behalf of the petitioner. None appears for the respondents though served. By the order dated 31st August 2009 this Court issued notices to respondents, which were made returnable on 22nd September 2009. It was also directed that the notice would state that the writ petition may be finally heard and disposed of at the admission stage itself. The petitioner was also given liberty to serve the respondent by advocate’s notice, either personally or by Courier/speed post/fax and file affidavit of service. Accordingly the petitioner has served the respondent and filed affidavit disclosing that the respondents are duly served with the notices of writ petition with intimation that the petition will be heard finally at the -: 2 :- stage of admission. Inspite of this position, none appears on behalf of the respondents. Therefore, I am constrained to hear and decide this matter in the absence of the respondents. 2. Rule. Rule made returnable forthwith and taken up for hearing. 3. The petition seeks to challenge the legality and propriety of the order dated 20th November 2008 passed by the learned 3rd Joint Civil Judge, Senior Division, Satara below Exhibit­ 1 in Special Darkhast No. 84 of 2008, whereunder the execution proceedings initiated by the petitioner came to be disposed of for want of jurisdiction. 4. The brief facts giving rise to the present petition are as under : The petitioner is a co­operative bank registered under the provisions of Maharashtra Co­operative Societies Act, 1960 [for short, “the MCS Act”] having its head office at Satara. The petitioner has also obtained banking licence from the Reserve Bank of India under the Banking Regulation Act, 1935 and is engaged in the banking business. The 1st respondent approached the petitioner bank for loan. The petitioner after considering 1st respondent’s loan application, sanctioned and disbursed loan to the tune of Rs.1 lac to which respondent nos. 2 & 3 stood as surety/guarantors. Since loan amount was not re­paid within the stipulated time, the petitioner bank filed a dispute under section 91 of the MCS Act in the Co­operative Court, being CC. No. 918 of 2002 for recovery of an amount of Rs.68,967/­ with interest @22% p.a.. -: 3 :- Learned Judge of the Co­operative Court by his judgment and order dated 12th March 2008 allowed the dispute partly and petitioner bank was held to be entitled to recover an amount of Rs.68,505/­with interest @16% p.a. on Rs.55,501/­ from the respondents jointly and severally. Learned Judge of the Co­operative Court also issued certificate under section 98(a) of the MCS Act in favour of the petitioner on 2nd/9th August 2002 and thereafter the petitioner filed Special Darkhast No.84 of 2008 in the Court of Civil Judge, Senior Division, Satara on 11th November 2008. Learned 3rd Joint Civil Judge, Sr. Division, Satara, however, by the order impugned in this petition, came to the conclusion that the darkhast proceedings are not maintainable in the Civil Court and, therefore, disposed off the petitioner’s darkhast with liberty to the petitioner to present the said darkhast before the appropriate forum. 5. Mr. Dilip Bodake, learned counsel for the petitioner took me through provisions of sections 91 and 98 of the the MCS Act. He also relied upon the judgment delivered by this court on 30th April 2010 in Writ Petition No.1107 of 2010 in the matter of the Wai Urban Co­op. Bank Ltd Wai v. Rajendra Sonaba Bbhise & ors. It is the submission of Mr. Bodake, that under the scheme of the MCS Act, the judgment and award passed by the Co­operative Court is executable in Civil Court once certificate under section 98 of the MCS Act is obtained. He further submitted that the court below has not taken into consideration the -: 4 :- provisions of the MCS Act in proper perspective and erroneously disposed off the execution proceedings. 6. Having heard Mr. Bodake, learned counsel for the petitioner and having gone through the impugned order alongwith annexures to the petition and judgment of this Court dated 30th April 2010 in the Wai Urban Co­operative Bank’s case (supra) I am of the considered opinion that there is merit in the petition. Annexure­B to the petition is a copy of judgment passed by the Co­operative Court in CC. No.918 of 2002. Under the said judgment, the petitioner’s dispute is allowed thereby entitling it to recover from the respondents a sum of Rs.68,505/­ alongwith interest @16% p.a. on Rs.55,501/­ from 8th July 2002. Page no. 28 to the petition is a copy of Award in terms of this judgment. Exhibit­C to the petition is a certificate issued by the Co­operative Court. Exhibit­D is a copy of the Darkhast petition initiated by the petitioner. I have perused the impugned order. Learned Joint Civil Judge, Sr. Division, Satara refused to entertain the Darkhast on the ground that the decree of the Co­operative Court is not decree within the meaning of section 2(2) of the Code of Civil Procedure, 1908. 7. The question whether the award of Co­operative Court, after grant of certificate under section 98 of the MCS Act, can be executed by the Civil Court fell for consideration before this court in the Wai Urban Co­operative Bank’s case (supra) wherein this Court answered this -: 5 :- question in the affirmative. The relevant observation are in paragraph no.4 of the said judgment, which read thus : “4 On plain reading of section 98, the same is applicable to recovery of money payable as per the Award passed by the Co­operative Court under section 96 of the said Act. Clause (a) of section 98 provides that on certificate signed by the Co­operative Court the Award under section 96 of the said Act shall be deemed to be a decree of Civil Court and shall be executed in the same manner as the decree of the such Court. Thus, a legal fiction is created by the clause (a) by which an Award under section 96 of the said Act is made a decree of Civil Court. Once a certificate in terms of clause (a) of section 98 is issued by the Co­ operative Court on the basis of the Award made under section 96 of the said Act, the Award is to be executed as if it is a decree of the Civil Court. Thus, the reference in clause (a) of section 98 is to the Civil Court and not to the Co­operative Court. The reason being by a legal fiction, such Award becomes a decree of a Civil Court which is capable of being executed by a Civil Court. The reference in section 98(a) to such Court is to a Civil Court and not to Co­ operative Court. If intention was to confer jurisdiction on a co­operative Court to execute the Award, there was no occasion to provide for a certificate under section 98 (a) of the said Act. Thus, on the basis of the certificate under section 98 (a), the Award can be executed in accordance with provisions of the Code of Civil Procedure,1908 and in particular part II thereof read with Order XXI thereof. ” 8. On plain reading of section 98 the MCS Act coupled with the above observations of this Court, I am of the view that the judgment and award of the Co­operative Court, after issuance of certificate under section 98 of the MCS Act by the Co­operative Court, can be executed by -: 6 :- filing execution proceedings in the appropriate Civil Court. I find that the petitioner has correctly approached the Court of Civil Judge, Senior Division, Satara for execution of the award passed by the Co­operative Court in their favour. Learned 3rd Joint Civil Judge, however, on wrong premise disposed of the petitioner’s darkhast. The reasons given by the executing Court cannot be sustained in law and therefore the impugned order deserves to be quashed and set aside and same is accordingly quashed and set aside. Rule is made absolute in terms of prayer clause (b). No order as to costs. (R.V. MORE, J.)