IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 99 OF 2006 CHAIRMAN, MAYURESHWAR GRAMIN BIGARSHETI SAHAKARI PAT SANSTHA MARYADIT ..APPLICANT V/S RAOSAHEB NANASAHEB JAGTAP & ORS...RESPONDENTS MS. SHARVERI S. KANETKAR, ADVOCATE I/BY MR. P.S. DANI, FOR THE APPLICANT. NONE FOR THE RESPONDENTS. CORAM: J.H. BHATIA, J. CORAM: J.H. BHATIA, J. CORAM: J.H. BHATIA, J. DATE : 1ST APRIL, 2008. DATE : 1ST APRIL, 2008. DATE : 1ST APRIL, 2008. P.C. 1. Heard learned counsel for the Applicant/Orig. Defendant No.1. 2. The Plaintiff/Respondent No. 1 filed Regular Civil Suit No. 103 of 2005 seeking declaration that the attachment of Maruti Suzuki Car No. MM 12AF 8689 and colour TV and other moveable assets belonging to the plaintiff is illegal and he also sought mandatory injunction against them. He also sought temporary injunction restraining the defendant Nos.1 and 2 from proceeding with the auction and sale of said property. : 2 : 3. According to the plaintiff, the defendant No. 3 who is the wife of the plaintiff had taken some loan from the defendant No. 1 Co-operative Credit Society and defendant nos. 4 and 5 were the guarantors. For recovery of loan amount from the defendant Nos. 3 to 5, the defendant No. 1 secured recovery certificate under sec. 101 of Maharashtra Co-op. Societies Act and Rule 107 of the Maharashtra Co-op. Societies Rules. On the basis of that recovery certificate, the defendant No. 1 Society and defendant No. 2 Recovery Officer of the society attached the Suzuki Maruti Car and colour T.V. of Sony Company from the plaintiff. According to the plaintiff he is the owner of the property. He is not concerned with the loan transaction in any manner nor he is the member of the society. Even the recovery certificate is not issued against him. As such the act of the defendant No. 1 and 2 in attachment and seizure of these properties is illegal. With all these contentions, the plaintiff sought different reliefs as stated above. 4. The defendant No. 1 filed the written statement and contended that in view of the provisions of section 154 of the Maharashtra Co-op. Societies Act, the remedy of Revision against the attachment is available and the Civil Court has no jurisdiction to entertain the suit. : 3 : A request was made to frame the preliminary issue on the point of jurisdiction. The learned trial court framed the issue and decided that the civil court has jurisdiction to entertain the suit. Being aggrieved by that decision the original defendant No.1 has preferred the present Revision Application. 5. There is no dispute that some loan was taken by the defendant No. 3 from the defendant No. 1 society and defendant Nos. 4 and 5 are the guarantors for repayment of that loan. Admittedly the plaintiff is the husband of the defendant No. 3. His case is that he is not a member of the defendant No. 1 society and he is not the borrower or guarantor for repayment of the loan. The defendant no. 1 has contended that he had knowledge about the loan taken by the defendant No. 3. Merely because he had the knowledge about the loan taken by the wife, the defendant no. 1 cannot attach the property of the plaintiff and recover the loan amount from him. Under section 101 of the Maharashtra Co-op. Societies Act a recovery certificate for recovery of the dues of the Co-op. Society may be issued against the borrower : 4 : or the guarantor. Admittedly in the present case the recovery certificate was issued against the defendant Nos. 3 to 5 only. No such recovery certificate was issued against the plaintiff. The suit is filed by the plaintiff against the attachment of his property by the defendant Nos. 1 and 2 in execution of that recovery certificate. Under section 156 of the Maharashtra Co-op. Societies Act, the Registrar or any officer subordinate to him and empowered by him in this behalf or an officer of such society as may be notified by the State Government, who is empowered by the Registrar in this behalf may, subject to such rules as may be made by the State Government, recover any amount due under a decree or order of a Civil Court or under a certificate granted by the Registrar under section 101 of the Maharashtra Co-op. Societies Act. 6. The Rules in respect of recovery are made. As per Rule 107 of the Maharashtra Co-op. Socieites Rules, 1961 the concerned society for recovery of the amount under recovery certificate issued under section 101 shall apply to the Recovery Officer within whose jurisdiction the debtor resides or the property of the debtor is situated. Under sub rule 3 on receipt of such application the Recovery Officer shall verify the correctness and genuineness of the particulars and shall : 5 : prepare a demand notice in writing setting forth the name of the defaulter and the amount due and forward it to the Sale Officer. Under sub rule 4 the procedure is laid down for execution of such recovery certificate. It provides that moveable property of the defaulter shall be first proceeded against and if there is no moveable property, or if the sale proceeds of the moveable property or properties attached and sold are insufficient to meet in full the demand of the society, the immoveable property mortgaged with the applicant or other immoveable property belonging to the defaulter may be proceeded against. Admittedly the plaintiff was not the defaulter because neither he was the borrower nor he was the guarantor nor recovery certificate was issued against him. Therefore, in view of Rule 107, the Recovery Officer could not proceed against the property of the plaintiff. He could have attached and put to sale the moveable property of the defaulter. If the property of the defaulter would have been attached, he could not have challenge the action of either the Registrar who issued the recovery certificate under section 101 or the Recovery Officer who had taken the action of attachment under Rule 107. As no Appeal could be preferred against such attachment, the defaulter could file Revision under section 154 of the Act. The person who is not at all concerned with the transaction and against whom no recovery certificate has been issued : 6 : and who is neither the defaulter nor his property is mortgaged with the society cannot be compelled to file Revision Application at all. He may file suit seeking declaration that the action of the Recovery Officer is illegal and without jurisdiction. 7. Section 163 of the Maharashtra Co-operative Societies Act, reads as follows:- "Sec. 163. Bar of jurisdiction of Courts. -- (1) Save as expressly provided in this Act, no Civil or Revenue Court shall have any jurisdiction in respect of -- (a) the registration of a society or its by-laws, or the amendments of its by-laws, or the dissolution of the committee of a society, or the management of the society on dissolution thereof; or (b) any dispute required to be referred to {the Co-operative Court,} for decision; (c) any matter concerned with the winding up and dissolution of a society. (2) While a society is being wound up, no suit or other legal proceeding relating to the business of such : 7 : society shall be proceeded with or instituted against the society or any member thereof, or any matter touching the affairs of the society, except by leave of the Registrar, and subject to such terms as he may impose. (3) All orders, decisions or awards passed in accordance with this Act or the rules shall, subject to the provisions for appeal or revision in this Act be final; and no such order, decision or award shall be liable to be challenged, set aside, modified, revised or declared void in any Court upon the merits or upon any other ground whatsoever." Sub-section 1 and 2 are not applicable. Under sub-section 3 all orders, decisions or awards passed in accordance with this Act or the rules shall, subject to the provisions for appeal or revision be final; and no such order, decision or award shall be liable to be challenged in any court. To take away the jurisdiction of the Civil Court it will be necessary to point out that the order, decision or award sought to be challenged was passed in accordance with the Act or the Rules. If the Authority under the Maharashtra Co-op. Societies Act acts within jurisdiction and passes an : 8 : order, decision or award jurisdiction of civil court is ousted but if such authority acts without jurisdiction and passes an order, decision or award against a person who is not concerned with the dispute or the transaction, such person may challenge such order etc. in a civil court and the jurisdiction of the Civil Court is not ousted. 8. In the present case as pointed out the defendant no. 2 Recovery Officer proceeded to attach the property of the plaintiff, who was not the borrower or the guarantor nor the recovery certificate was issued under section 101 of MCS Act. As pointed out earlier under section 107 the Recovery Officer could not attach the property of a person who was not the defaulter or whose property was not mortgaged with the credit society. Therefore it could be said that the attachment passed by the Recovery Officer was not as per the provisions of the Act or the Rules and the said order is without jurisdiction. In such circumstances, I find that the jurisdiction of the Civil Court is not taken away. 9. In view of the facts and circumstances noted above, I find no fault in the impugned order. I find no substance in the Revision Application. : 9 : 10. In the result, the Revision Application stands dismissed. (J. H. BHATIA, J) (J. H. BHATIA, J) (J. H. BHATIA, J)