FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.7179 OF 2008 ___________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|___________________________________ This petition takes an exception to the judgment and order dated 23.7.2008 passed by the Member, Maharashtra State Co-operative Appellate Court, Mumbai Bench at Aurangabad in Appeal No.17/2008 and the order below Exh.20 in Dispute No. 296/2004 passed by the learned Judge of the Co-operative Court at Aurangabad, and the application Exh.20 in Dispute No.296 of 2004. 2 It is not necessary to narrate the facts since the controversy involved in the petition is whether the present petitioner filed an application with the respondent Sugar Factory applying for nominal membership or not. 3 The learned Counsel for the petitioner submits that once the amount of Rs.10/- was accepted by the concerned Clerk from the Shares Department and to that effect he has deposed before the lower Court that the said amount was accepted towards entertaining the prayer of the petitioner for nominal membership, it is not open now for the respondents to say that no application was filed by the present petitioner for obtaining nominal membership. The learned Counsel for the petitioner invited my attention to the grounds in the petition and more particularly, the statement of Kailas Pawar, Senior Clerk in the department of Shares of the respondent Sugar Factory and submitted that the said witness is the employee of the sugar factory and he in clear words has stated that the said amount of Rs.10/- was accepted towards fees for granting nominal membership, both the Courts were not right in holding that no application was filed by the present petitioner for nominal membership and no dispute is maintainable. The learned Counsel further submits that even it is assumed for time being that the petitioner’s claim is pending, by virtue of Section 91-B of the Maharashtra Co- operative Societies Act, 1960, the dispute filed by the present petitioner is otherwise maintainable. The learned Counsel invited my attention to the findings recorded by the appellate court and submitted that this matter requires consideration and more particularly, when the employee of the sugar factory has stated before the Court that the amount of Rs.10/- was accepted by the sugar factory towards nominal membership. 4 The learned Counsel for the respondent invited my attention to the paragraph 12 of the judgment of the appellate Court and submitted that after taking into consideration the facts and the documents produced on record by the respective parties and after hearing both the sides, the Court declined to entertain the appeal. He further submits that both the Courts on facts, held that no application was filed by the present petitioner for nominal membership. Therefore, this Court, in writ jurisdiction, may not entertain the writ petition. 5 After hearing the learned Counsel for the parties, I am of the considered view that once both the Courts below have appreciated the facts and have come to the definite conclusion that no application was filed by the present petitioner claiming nominal membership, it is not open for this Court to enter into re-appreciation of the findings recorded on the basis of available evidence before both the Courts below. Apart from that, the Court has taken notice that payment of Rs.10/- was in fact received by the sugar factory but, the Court has further recorded that no application was filed by the present petitioner for nominal membership. The appellate Court, in paragraph 12, has discussed about the applicability of Rule 19 of the M.C.S. Rules, 1961 in the present case and in para 13, the Court has observed that even if it is assumed that there is application by the present petitioner, the said application is also required to be approved by the committee of the society. Viewed from any angle, this is not a case for interference in view of concurrent findings of both the courts below that no application applying for nominal membership was filed by the present petitioner. 6 Coming to the second contention of the learned Counsel for the petitioner that even the person who is claiming membership can file dispute and the same requires to be entertained in view of section 91-B of the said Act, is required to be rejected for simple reason that when the courts have arrived to the conclusion that there was no application filed for nominal membership, there is no question of entertaining any dispute. 7 For all these reasons, the present writ petition raises disputed questions of facts and therefore, same is rejected. (S.S. SHINDE, J). 06.08.2009. PLK/#