:1: :1: :1: FARAD CONTINUATION SHEET 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. 1926 OF 2008 WRIT PETITION NO. 1933 OF 2008 -------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court’s orders Court’s or Judge’s or directions and Registrar’s Orders Orders -------------------------------------------------------------------------- Mr.N.P.Deshpande, Adv. for the petitioners. Mr.Girish Godbole, with Mr.S.S.Kanetkar, Adv. for the respondents. CORAM: S.C.DHARMADHIKARI, J. DATED: 26TH MARCH, 2008. P.C. P.C. P.C. : : : 1. The impugned orders are passed by the courts below on Applications which are preferred by the petitioners who are Original Opponents to the dispute under Section 91 of the Maharashtra Co-operative Societies Act. 2. The dispute is filed by the :2: :2: :2: respondents. The petitioners raised two fold objection. Their first objection is that the dispute read as a whole does not disclose any cause of action and in any event, assuming it so discloses, its cognisance is barred. The power under Order 7 Rule 11(d) of CPC read with Section 151 thereof has been invoked. 3. The second objection is that the dispute is not maintainable. It was urged that the Co-operative court would have no jurisdiction to entertain and try the dispute. The Co-operative Court has held that the Application with regard to the maintainability and jurisdiction of the dispute is an aspect which will be taken note of. The issue of maintainability and jurisdiction would have to be framed. The request was to try them as preliminary issues. The Co-operative Court was of the opinion that considering the peculiar facts this is not a matter which can be said to be covered by the provisions akin to Section 9A of CPC. In other words, the matter is part :3: :3: :3: heard and Application invoking Order 14 Rule 2(2) of the CPC cannot be decided at this stage. It is not as if there is a pure question of law and no necessity arises of going into the factual aspects. For these reasons and holding that even for deciding whether the dispute is maintainable or not, a further probe and investigation would be necessary, the Applications have been rejected. 4. That order is affirmed in revision by the Co-operative Appellate Court. The Co-operative Appellate court has framed the necessary points and after hearing both sides, has noted the contention of the respondents as well. The Respondents case is that they have paid excess amount and are seeking directions to refund the same with interest. The case of the Respondents who are the Original Disputants is that pursuant to the payment of Rs.865.98/- lacs, they are no longer defaulters and is insisting on a No-Due Certificate from the petitioner bank. The prayer has also been :4: :4: :4: noted. 5. It is in such circumstances, that the Revisional Court has upheld the order of the Trial Court. 6. I see no reason to entertain this Writ Petition. The Trial Court has not erred in rejecting the Application of the petitioners under the aforesaid provisions. Merely because another view of the matter is possible is no ground to interfere. The courts below have held that the issue raised is a mixed question of fact and law and therefore the relief sought by the petitioner-bank cannot be granted at this stage. That will be granted, upon trial of the issues which are framed. The issues are already framed and they include the one on maintainability and jurisdiction. 7. In the above circumstances, there is no reason to interfere in writ jurisdiction. Petition dismissed. However, the Trial Court :5: :5: :5: to consider and answer the Issues framed, uninfluenced by the observations made by it and by the Revisional Court as the same have been rendered at a prima-facie stage. The same may be treated as being rendered for the purpose of prima-facie satisfaction and do not conclude the controversy. Petitions dismissed. 8. All contentions of both sides on maintainability, jurisdiction and merits are kept open. ********