1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 1789 OF 2009 Akbarbanoo w/o Adnankhan age 65 years, Occ. Proprietor, of hotel Blue Diamond, Latur. R/o Ambajogai Road, Opposite S.P.Office, Latur. PETITIONER. V E R S U S 1. The Assistant Registrar, Co-operative Societies, Latur, Tq. & Dist. Latur. 2- Maharashtra Nagari Sahakari Bank, Ltd., Latur, Tq. & Dist. Latur, Through its Manager. 3- The Recovery officer, Maharashtra Nagari Sahakari Bank Ltd., Latur, c/o Head Office, Kava Road, Latur, Dist. Latur. 4- Yasheen s/o Umarsab Kazi, age major, Occ. Business, R/o Parvana Glass Centre, Nanded Road, Latur. 5- Osman Ahmed Karm Maniyar, age major, Occ. Business, R/o Gandhi Market, Near Laxmi Mandir, Latur, Tq. & Dist. Latur. RESPONDENTS. Shri V.D. Salunke, Advocate for the petitioner. Smt. S.D.Shelke, A.G.P. for R-1. Shri Sachin Deshmukh, Advocate for R-3. Respondent Nos. 2 and 4 served. CORAM : S. B. DESHMUKH, J. DATE : 4TH FEBRUARY, 2010. 2 ORAL JUDGMENT :- 1. Heard learned counsel for respective parties. 2. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 3. This petition takes an exception to the certificate issued by the respondent No.1, under section 101 of the Maharashtra Co-operative Societies Act, 1960 (herein after referred to as ‘the Act’ for short). It is an admitted fact that certificate for the recovery of Rs.5,42,196/- was issued by the respondent No.1, on February 21, 2009 with costs and interests as detailed in the certificate. Principal grievance raised in this writ petition is that, respondent No.1, while issuing certificate under section 101 of the Act, did not issue notice to the petitioner, petitioner was not heard. Certificate came to be issued behind and back of the present petitioner. 4. This petition had been before this Court earlier. This Court issued notice. Ad-interim relief was granted in terms of prayer clause ‘C’ and ‘D’ on condition that petitioner shall deposit Rs.3.00 lac with respondent No.2, within four weeks from the date of passing of the order. 5. Learned counsel for the respondent No.2 – Bank, submits that this order has been complied with. Petitioner has deposited amount of Rs.3,00,000/- with respondent No.2- Bank. In view of order passed by this court, on behalf of 3 state affidavit is filed by one Mr. Shivaji Bade, working as Assistant Registrar, Co- operative Societies, Latur, along with annexure R-1 and R-2. Counsel for the petitioner points out paragraph No.2 of the affidavit. According to learned A.G.P annexure R-1 is a copy showing that present petitioner refused to accept packet containing notice under section 101 of the Act. Counsel for the petitioner points out that alleged acknowledgment is not issued by the Indian Post and Telegraph Department. The respondent No.1 did use a acknowledgment printed and maintained by Post Department, which are used for sending packet by registered post. This acknowledgment, however, does not show that, it is a acknowledgment issued by Post and Telegraph Department for attracting presumption in favour of the public servant. Indisputably, this acknowledgment seems to be in the name of private courier service ‘Meghdut’. Endorsement on this acknowledgment that “addressee refused to accept packet” does not help to the respondent No.1. Based on this acknowledgment inference cannot be drawn that present petitioner was served by respondent No.1 with notice of the proceeding under section 101. Affidavit filed on behalf of respondent No.1 further contains a statement that apart from this notice sent through courier, there was a publication of the public summons in a newspaper. Annexure R-2 is a copy of the said newspaper placed on record. The newspaper, according to counsel for the respondent is daily ‘Prativyavahar’. Copy of said public summons is on record. This copy does not bear a name of printer, publisher and other details mandated by statute concerned, so as to draw a presumption that publication of summons in this copy of the newspaper can be considered to be a good service to the petitioner. Thus, In all, in my view, material placed on record, cannot be said to be sufficient for holding that petitioner was served with the summons of the proceeding under 4 section 101 of the Act. 6. The petitioner has already deposited an amount of Rs.3,00,000/-, which is more than 50% of the certificate, contemplated to be deposited while filing revision under section 154, 2-A of the Act. In this view of the matter, certificate under section 101 impugned in this writ petition can be quashed and set aside. This matter can be remitted back to the respondent No.1, for decision, according to provisions of law. 7- Writ petition is accordingly allowed. Certificate under section 101 of the Act, impugned in this writ petition, is quashed and set aside. Proceeding on the file of respondent No.1, under section 101 of the said Act is restored. Petitioner and respondent No.2 are directed to remain present before respondent No.1 on 25.02.2010. Respondent No.1, shall, hear the parties and decide the proceeding in accordance with the provisions of law, shall take into account deposit of Rs.3,00,000/- (Rs. Three lac) made by the present petitioner in view of the order passed by this Court. 8- Rule is made absolute in above terms. No costs. ( S. B. DESHMUKH ) JUDGE ... aaa/1789.09