ash 1 wp-5778.98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO. 5778 OF 1998 Pune Merchants Co-operative Bank Ltd., ) having its registered Office at Saraswati ) Vilas Building, Laxmi Road, ) Pune – 20, through its ) Shri Shrikrushna Narayan Sardeshpande. ).. Petitioner Vs 1. Shri Rajanikant Sheshrao Pandey, ) aged adult, Occ. Builder Promoter, ) for himself and as one of the ) partner of Pandey Construction, ) a proprietory firm, resident of 350, ) Sindh Co-operative Housing Society, ) Aundh, Pune – 7. ) 2. Sau. Bharati Rajanikant Pandey, ) aged 48 years, Occ. Household, ) resident of 350, Sindh Co-operative ) Housing Society, Aundh, Pune – 7. ) 3. Shri Ravindra Achyut Patankar, ) aged adult, Occ. Business, ) resident of Narayan Peth, ) Pune – 30. ).. Respondents -- Shri A.M. Kulkarni for the Petitioner. -- CORAM ; A.S. OKA, J DATED : 22ND AUGUST, 2011 ash 2 wp-5778.98 ORAL JUDGMENT : . Heard the learned counsel appearing for the Petitioner. The Petitioner Bank filed a Dispute under Section 91 of the Co- operative Societies Act, 1960 for recovery of a sum of Rs.83,14,215.40 ps along with interest against the Respondents. In the said Dispute, the consent terms were filed on 8th November, 1993. On the very day, the Dispute was disposed of by directing that the award be drawn in terms of the consent terms. In May, 1998, an application was made by the first Respondent before the Co-operative Court for setting aside the order dated 8th November, 1993. There was a prayer made for condonation of delay. By the impugned order, the learned Judge of the Co-operative Court condoned the delay and recalled the order dated 8th November, 1993. The Dispute was restored by the learned Judge. 2. The submission of the learned counsel appearing for the Petitioner is that apart from the fact that the application was belatedly filed, the same was not maintainable in law. He submitted that the compromise was duly signed by the Respondents and their Advocate. He pointed out that there is absolutely no explanation for delay of more than 4 and ½ years in filing the said application apart from the fact that the application itself was not maintainable. He submitted that there was no proper service of the notice of the said application made on the ash 3 wp-5778.98 Petitioner. None appears for the Respondents. 3. A photocopy of the consent terms has been annexed to this Petition. The consent terms have been signed by the first Respondent for himself and as the sole Proprietor of M/s. Pande Construction. The consent terms have been signed by the second and third Respondents. The consent terms bear the signature of the Advocate for the Respondents. The consent terms have been signed by the Advocate for the Petitioner who was authorised to compromise. On 8th November, 1993, the learned Judge of the Co-operative Court passed an order directing that an Award may be passed as per the consent terms as read and recorded. The Respondents agreed under the consent terms that the total amount payable by them was Rs.91,50,000/- as of 31st August, 1993. The Respondents agreed to pay outstanding amount by monthly installments as provided in clauses (c) and (d) of the consent terms. 4. It will be necessary to make a reference to the averments made in the application dated 15th/28th May, 1998 made by the first Respondent. In Paragraph 10 of the Application, the first Respondent alleged that the consent terms were not signed by the Petitioner and the signatures of the first Respondent and other Respondents were obtained under a threat. It was alleged that the blank papers were fabricated ash 4 wp-5778.98 and manufactured as the consent terms and none of the parties were present on 8th November, 1993 before the Co-operative Court. In Paragraph 11 of the application, it is alleged that the first Respondent was forced to sell his project to the third parties as he and his family members were put under constant threats of life. In Paragraph 12, there is a specific admission by the Respondent No.1 having paid the last installment somewhere in June, 1996. He stated that after paying the installment, the Respondent No.1 decided to expose the illegal activities of the Bank. The averments made in the application itself suggest that all along the Respondent No.1 was aware of the order dated 8th November, 1993. As far as the allegations regarding coercion and threats are concerned, no police complaint has been filed. In Paragraph 12, there is a reference to the last installment which had been paid in June, 1996. Thus, the said averment shows that the consent terms filed on 8th November, 1993 were acted upon by the first Respondent till June, 1996. Thus, even from the said application it appears that the first Respondent was fully aware of the consent terms and the consent award. There is no attempt made by the first Respondent till May, 1998 to lodge any protest. Thus, there was absolutely no explanation for a long delay of 4 and ½ years and more in the Application. ash 5 wp-5778.98 5. It appears that in the said application filed by the first Respondent on 15th/28th May, 1998, the Advocate for the first Respondent applied for service by Hamdast. The order passed on the said application reads thus:- “Application is allowed and he further allowed to hand deliver the notice on bank personally and report this Court on 29-5-98 and for arguments and order on 30-5-98.” 6. On 29th May, 1998, only on the basis of the alleged affidavit of the first Respondent stating that the officers of the Petitioner-Bank had refused to accept the service, on the very day, the arguments were heard by marking the Petitioner as absent. In the impugned order, the learned Judge has noted the contention of the first Respondent that as per the consent award, till June, 1996 the entire money was paid to the Petitioner. The learned Judge merely observed that the threat to the Respondent and his family members were of serious nature. The learned Judge has made erroneous observation that the consent terms were not signed by both the parties. The learned Judge has ignored the endorsement made by the Advocate for the Petitioner below his signature on the consent terms that he has an authority to compromise on behalf of the Petitioner. Moreover, the Respondents appear to have signed the consent terms. By the impugned judgment and order, the learned Judge has not only condoned the delay but has set aside the consent award. ash 6 wp-5778.98 7. Suffice it to say that the impugned Judgment and Order deserves to be set aside being perverse and therefore, it is required to be quashed and set aside inasmuch as there is no explanation for such a long delay of 4 and ½ years and that admittedly the first Respondent all along acted upon the consent Award. 8. Hence, I pass the following order : The Rule is made absolute in terms of prayer clause (b). ( A.S. OKA, J )