wp2516-09.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2516 OF 2009 The Nasik District Central Co-op Bank Ltd .. Petitioner versus The State of Maharashtra & Ors .. Respondents Mr.M.G.Patil i/by N.N.Bhadrashete for the petitioner. Ms.P.S.Cardozo, A.G.P for respondent Nos.1 and 2. Mr.Mahendra N. Sandhyanshiv for respondent Nos.4 to 14. CORAM : S.C.DHARMADHIKARI, J. 30th JUNE 2011. P.C.: . Rule. Heard both sides. By consent, rule made returnable forthwith. 2 The petitioner applied for leave under section 106 of the Maharashtra Co-operative Societies Act, 1960 to execute an award against respondent No.3. That application having been wp2516-09.doc 2 dismissed by the respondent No.2, that this writ petition is filed. 3 It is not necessary to refer to the factual position as it is common ground that the 3rd respondent is a Credit Co-operative Society. A loan was sanctioned and disbursed to it. In turn, the respondent No.3 gave loan to its various members. Respondent Nos.4 to 15 are the office bearers/members of the Managing Committee of respondent No.3. Since the respondent No.3 failed to pay the disbursed amount, in other words, the amount which was disbursed by the petitioners to respondent No.3 was in turn lent and advanced to all such needy persons and members and the same was recovered by respondent No.3 from salary and other dues of respondent Nos.4 to 15. However, sum so collected has not been remitted which led to filing of the dispute and which dispute succeeded and therein an award was made. The award is capable of being executed as a decree of the Civil Court and, therefore, execution proceedings were filed in the Court of Civil Judge, Senior Division, Malegaon. In the meanwhile, a liquidator was appointed of the respondent No.3. In such circumstances, the petitioner applied for leave to continue the execution wp2516-09.doc 3 proceedings, which application has been rejected by the impugned order. 4 The legal position is settled inasmuch as in such an application, the merits of the matter are not to be gone into and decided. The leave is sought in terms of the requirement that has been stipulated by section 107 of the Maharashtra Co-operative Societies Act, 1960. This is an effect of order of winding up a Society which is made in terms of section 106. Section 107 is akin and on par with section 446 of the Indian Companies Act. Therefore, as has been pointed out in several decisions, the leave can be obtained ex-post facto. In the instant case, the leave was sought to continue the execution proceedings. It was absolutely unnecessary for the respondent No.2 to have gone into the merits of the dispute or the recovery proceedings. If the recovery proceedings were not maintainable or that the dues have been entirely repaid, that is something for the executing Court to decide. The 2nd respondent could not have over reached the jurisdiction and power of the executing Court and render conclusive findings on merits. This is not a stage to consider the wp2516-09.doc 4 same. He was only to decide the application seeking leave to continue the proceedings. It is not in dispute that the 2nd respondent has entered into merits of the dispute and, therefore, his order is contrary to law. In these circumstances, it is quashed and set aside and the leave as prayed by the petitioners is granted. The execution proceedings to now continue in accordance with law. 5 It is fairly stated by Mr.Patil appearing for the petitioner that the execution proceedings/application has been dismissed in default and restoration application was also dismissed, which dismissal has been challenged by filing writ petition being Writ Petition No.2417 of 2009. The present writ petition is allowed as I am concerned with only the correctness of the order refusing leave or sanction under section 107 of the Maharashtra Co- operative Societies Act, 1960. The other writ petition will proceed on its own merits and in accordance with law in these terms with no orders as to costs. It hardly needs any clarification that this Court is not concerned with the merits of the pleas raised either in support of the application for restoration or for execution of the wp2516-09.doc 5 said award. All contentions of both sides in that behalf are kept open and subject to that, this petition is allowed. No order as to costs. (S.C.DHARMADHIKARI, J)