bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 5349 OF 2008 PETITION NO. 5349 OF 2008 PETITION NO. 5349 OF 2008 Mr.Prakash Shankarrao Kadam & ors. ... Petitioners v/s Assistant Registrar, Co-operative Societies, Khanapur & ors. ... Respondents Mr.Umesh R. Mankapure for the petitioners. Mr.S.D.Rayrikar, A.G.P. for the respondent No.1. Mr.Amit B. Borkar for the respondent No.2. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 30TH SEPTEMBER, 2008 30TH SEPTEMBER, 2008 30TH SEPTEMBER, 2008 P.C. P.C. P.C.: 1. The petition challenges the order passed by the District Joint Registrar, Co-operative Societies, Kolhapur Division, Kolhapur, on 20.5.2008. This order arises out of the challenge to the order passed by the Assistant Registrar, Co-operative Societies, Khanapur, Taluka - Vita, dated 23.4.2008 in Recovery Certificate No.208 of 2008. 2. The petitioners had obtained a loan of about Rs.7 lacs from the respondent No.2. According to the petitioners, this entire loan has been repaid on 31.3.2005 and a receipt has been annexed to the 2 petition. The petitioners contend that a notice was issued to him on 2.2.2007 calling upon him to repay the loan of Rs.8,17,552/-. The petitioners contend that they have not obtained this loan from the respondent No.2 and that they had replied to the notice issued. It appears that an application was moved by the respondent No.2 for issuance of a recovery certificate under Section 101 of the M.C.S. Act. The petitioners were issued notice accordingly. The petitioners contend that on 27.3.2008 when the matter was placed for hearing, their advocate could not remain present. Besides, the borrower had to leave Vita for some reason and, therefore, could not remain present at the proceedings before the Deputy Registrar of Co-operative Societies, Khanapur. A certificate was issued for recovery of the debt from the petitioners. 3. The petitioners contend that the recovery certificate issued under Section 101 had been issued for a loan which had been repaid on 31.3.2005 and no subsequent loan was availed by the petitioners. It is further contended that despite repeated requests the respondent No.1 Society had not disclosed as to how the loan was disbursed to the petitioners, whether by cheque, cash or demand draft. Besides this, it was submitted on behalf of the petitioners that an 3 adjournment was sought for the first time by them before the Registrar of Co-operative Societies and the authority had refused the same. The learned counsel appearing for the petitioners, therefore, submits that the petitioners should be given a chance to appear before the Registrar of Co-operative Societies by remanding the application for a fresh hearing. 4. The question involved is whether the Registrar of Co-operative Societies has a power to review his own order of issuance of a certificate under Section 101 of the M.C.S. Act. According to Mr.Mankapure, the learned counsel for the petitioners, a circular has been issued by the Commissioner for Co-operation and Registrar of Co-operative Societies, Pune, on 3.3.2001 providing for the procedure and guidelines which are required to be followed for issuance of a certificate under Section 101 of the Act. According to the learned counsel, sub-clause (5) of Clause 8 of the guidelines provides that the Registrar may set aside the certificate issued under Section 101 and hear the main application afresh if within 30 days of issuance of the recovery certificate the opponent assigns good or sufficient cause for his non-appearance in the matter. However, such an application is not to be entertained if the opponent fails to appear after filing the statement of 4 defence. Sub-clause (6) of Clause 8 provides that the period of 30 days could have been enlarged by the Resitrar if he was satisfied that there was sufficient cause for not preferring the application within 30 days. Sub-clause (7) provides that the remedy for setting aside the recovery certificate by applying to the Regstrar was in addition to the application which could be filed under Section 154 of the Act. According to the learned advocate, therefore, the Registrar ought to have reviewed his order by following the guidelines issued vide circular dated 3.3.2001 in accordance with the guidelines to be followed for granting of a certificate under Section 101 of the Act. 5. Admittedly, there is no power conferred under the M.C.S. Act on the Registrar of Co-operative Societies to review his order, issuing a certificate under Section 101 of the Act. Mr.Mankapure, the learned counsel for the petitioners submits that on 3.3.2001 a circular has been issued by the Commissioner for Cooperation and Registrar of Co-operative Societies, Pune, in which the procedure and guidelines to be followed for issuance of the certificate under Section 101 have been outlined. He submits that these guidelines are in addition to the provisions of the M.C.S. Act and, therefore, the Registrar of Co-operative Societies ought to have 5 reviewed his own order as sufficient cause had been made out by the petitioners for their non-appearance on the date when the certificate was issued. 6. Mr.Borkar points out rightly that in view of introduction of Chapter VIII-A in the Rules, the guidelines would no longer apply. 7. Chapter VIII-A has been inserted in the Rules framed under the Maharashtra Co-operative Societies Act by a notification dated 18.5.2007. Rule 86-A specifies how an application for grant of a certificate for recovery should be filed. Under Rule 86-B, after the Registrar satisfies himself on receipt of an application that it is complete, it must be registered. The rule also provides for notice to be issued to the parties concerned. Rule 86-C deals with the appearance of parties and the consequences of non-appearance. Sub-Rule (2) of Rule 86-C provides that, if on the date of hearing the opponent i.e. the party against whom the recovery certificate is to be issued does not appear, the claim can be decided ex-parte on the next date of hearing provided the Registrar is satisfied that the opponent is duly served. Rule 86-D provides for the the production and inspection of documents. Rule 86-E deals with the procedure for hearing of application. Rule 6 86-F stipulates the manner in which judgments and orders are to be passed and the certificate to be issued by the Registrar. All these provisions are contained in the guidelines which were laid down in the circular dated 3.3.2001. They have now been encapsulated in Chapter VIII-A. The legislature in its wisdom has not retained Clause 8(v) of the guidelines after the insertion in Chapter VIII-A. The submission of the learned counsel for the petitioners that the very fact that the guidelines provide for a review and, therefore, the order impugned must be set aside, is without merit. Once the guidelines have been replaced by Chapter VIII-A which was inserted on the statute book about six years after the guidelines were issued, it is not necessary for the Registrar to follow the guidelines while issuing the recovery certificate. The Registrar is expected to comply with the provisions of the Maharashtra Co-operative Societies Act and the Rules framed thereunder, including the Chapter VIII-A. 8. Thus, in my opinion, unless there is a power of review which emanates either from the rules or the Act, the Registrar cannot review his own order. 9. Therefore, writ petition rejected. 7 10. The petitioner also has a remedy to file a revision. If such revision is filed within one month from today, the same shall be disposed of by condoning the delay, subject to compliance of other requirements of law.