Lsp 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 PETITION NO.2514 of 2007 Lonavala Sahakari Bank Limited ...Petitioners V/s. M/s. Jadhav Service Station & anr. ...Respondents Mr.A.M.Joshi for the Petitioners CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 8th February , 2008 : 8th February , 2008 : 8th February , 2008 P.C. Heard Mr.Joshi, the Learned Counsel for the Petitioner Bank which has filed Dispute No. 136/2003. In the said Dispute, after the written-statement was filed, the Respondents came out with a counter claim by filing an application at exhibit 26. After hearing both the parties the said application came to be allowed by the Cooperative Court No.2 on 12-12-2005 at Pune and Disputant Bank being aggrieved by the said order approached the Cooperative Appellate Court in Revision Application No.39/2006 and said Revision Application has been allowed by the impugned order dated 22-9-2006. 2. As per the Cooperative Court the subject matter of the suit was unrelated to the cause of action of the dispute or the loan transaction and if the amendment application was allowed, it would change the nature of 2 the defence and would give rise to different causes of action unrelated to the suit transaction. The lower Appellate Court did not agree with the decree passed by the Cooperative Court and noted that though the applicants were required to raise the counter claim alongwith the written-statement, that by itself would not be a ground to reject the counter claim and the negligence on the part of the applicants could be compensated by imposing cost. The Respondent Bank contended that by the counter claim alleged damages could not be claimed in a dispute filed under Section 91 of the Maharashtra Cooperative Societies Act by the Bank. This ground was over ruled by the lower Appellate Court by holding that the applicants are entitled to claim set off amount of damages on account of dishonour of cheques and, therefore, levying the cost of Rs. 2000/-, the application at Exh. 26 was allowed. 3. In fact by the application at Exhibit 26 what was sought to amend was the written-statement so as to raise the counter claim and, therefore, clause 6(a) was sought to be added in the written-statement filed and consequently clause 21 regarding the prayer clause was sought to be amended. From the record it appears that before the counter claim which is subject matter of the dispute, the applicants had banking transactions with the disputant Bank and it has alleged that in December 3 2000, the demand drafts purchased from the Bank could not be encashed. The applicants were required to pay penalty of Rs. 5,990/- and in addition the applicants were required to pay damages at Rs. 14,000/-. The applicants suffered business losses as the petroleum company refused to supply petrol unless the money was paid in advance. Such incidents of demand drafts not being encashed have also been alleged subsequent to December 2000 in the proposed amendment. Mr.Joshi stated that the affidavit by way of examination in chief on behalf of the disputant was already filed and, therefore, the amendment sought was belated and could not have been allowed. He also submitted that if the applicants desire to file a complaint or seek damages in respect of earlier transactions, they have a remedy of filing a separate suit and they cannot be allowed to set up the counter claim in the dispute filed by the Bank. . There can be no dispute that if the applicants have to file recovery proceedings, they would fall within the ambit of Section 91 of the Maharashtra Cooperative Societies Act and it has not been pointed out that the applicants are not the members of the Society. Rather than allowing to have multiplicity of proceedings, the lower Appellate Court rightly set aside the view taken by the Cooperative Court and allowed the amendment application and in any case merely by allowing the 4 amendment application, the bank is not prevented from taking any steps to defend either on the point of facts or on the point of law. 4. Hence, there is no case made out to cause interference in the impugned order under Article 227 of the Constitution. Petition is rejected summarily. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]