1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8743 OF 2007 WITH WRIT PETITION NO.8751 OF 2007 WITH WRIT PETITION NO.8752 OF 2007 Janakalyan Sahakari Bank Ltd. .. Petitioners Versus Dr.Mahesh Salunke-Patil & Ors. .. Respondents Mr.Birendra Saraf i/b. M/s.V.Deshpande & Co. for petitioners Mr.P.S.Dani i/b. D.S.Bhagat for respondent No.3 Mr.Girish Kedia for respondent No.5 Mr.H.E.Palve for respondent No.4 Ms.P.S.Cardozo, A.G.P. for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 17th January 2008 P.C. . These matters challenge the orders passed 2 by the Assistant Registrar, Coop.Societies wherein recovery certificates issued way back in 2001 have been recalled and fresh recovery certificates have been issued. 2. The grievance of the petitioner bank is that the Assistant Registrar concerned had no power or jurisdiction to pass the orders recalling the recovery certificates as there is neither any provision empowering him to do so in the Act or the Rules or even the circular relied upon and assuming without admitting that the same is constitutionally valid does not permit reopening of certificate after lapse of six years. More so, when no proper, cogent and satisfactory reasons have been assigned for condoning the delay in making of such applications for recalling the issuance of the certificates purportedly on the ground that they have been issued ex parte. 3 3. On the other hand, learned Counsel for applicants who had applied for recalling the said certificates supports the impugned order on the ground that the circular empowers the Assistant Registrar to condone the delay and set aside an ex-parte order. Further on merits the borrower and the bank had arrived at some arrangement so also the guarantors have purportedly not issued any guarantees. Hence, the order under challenge is legal, valid and proper. 4. After these matters were argued for some time, both sides agree that the order issuing recovery certificates passed in 2001 and the one recalling the same so also issuing fresh certificate in 2007, both should be quashed and set aside and the applications for issuance of recovery certificate against the borrowers and guarantors made by the Bank shall be restored to the file of Assistant Registrar concerned. It would be open for the said Bank to produce all 4 materials including statement of accounts before the Assistant Registrar concerned and he shall issue fresh recovery certificate in favour of the bank, after following requisite procedure and without in any manner being influenced by any of the earlier orders and directions. Needless to state that both sides have agreed before me that they would appear before the Assistant Registrar on the date and time fixed by this Court and after the matters are adjourned or posted on some subsequent dates, they shall appear on such dates also and cooperate with the Assistant Registrar in expeditious disposal of the application. The parties have agreed to appear before the concerned Assistant Registrar on 4th February 2008 and prior thereto all concerned, viz., the borrower and the guarantor shall be entitled to inspect books of accounts/statements and relevant documents soas to enable them to make appropriate submissions before the Assistant Registrar. No inspection or request in that behalf shall be 5 entertained after 4th February 2008. The Assistant Registrar concerned shall endeavour and dispose of the applications of the Bank as expeditiously as possible and within six weeks from 4th February 2008. 5. No opinion is expressed by this Court with regard to liability, if any, of the borrower and guarantors and all pleas in that behalf are kept open. Equally, it would be open for the bank to place such materials on record as are permissible in law in support of their request for recovery certificate. 6. In the light of this agreement between the parties, Mr.Saraf appearing for petitioner bank states that the bank does not wish to challenge the validity and legality of the circular dated 3rd March 2001. Challenge in that behalf is expressly kept open. Petition disposed of. 6 7. It is hereby directed that having regard to the procedure and the manner in which the applications have been dealt with by Mr.Mahesh Salunke-Patil, Assistant Registrar (On Deputation) he shall not decide the applications pursuant to this order but the Registrar, Cooperative Societies, shall assign these matters to some other Assistant Registrar who shall decide the applications in accordance with law. In the meanwhile, the attachment on the moveable and immovable properties of the borrowers and guarantors shall continue but no steps would be taken to dispose them of. Needless to state that this attachment shall not prejudice either parties and without prejudice to the same, they will raise appropriate pleas before the authority concerned. 8. Needless to state that if copies of all the relevant documents on which the Bank will 7 rely before the Assistant Registrar, including, statement of account are furnished by it to the borrower and guarantor in the present matter, then it would not be necessary for the bank to give any inspection. Such copies shall be furnished within a period of eight days from the date of the written request. Petitions disposed of accordingly. In view of disposal of these petitions, the respective civil applications do not survive and the same are dismissed accordingly. (S.C.Dharmadhikari, J)