1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 2193 OF 2011 *** 1. In view of notice for final disposal, heard Advocate Nr. N. V. Gaware for Petitioner, Advocate Shri Vivek Tarde for Respondent No.4, learned A.G.P. for Respondent Nos.1 to 3 and Advocate Mr. Naik Thigle for Respondent No.5. 2. Short contention of Advocate Mr. Gaware is last date prescribed for nomination was 27th February, 2011 and hence repayment of loan thereafter or then specifically on the date of scrutiny i.e. 1st March,l 2011 is not legal. He invites attention to judgment delivered by me in the case of "Ravi Amrutrao Bagde V/s Commissioner and others" reported in 2006 (3) Bom.C.R. 359 for the said purpose. He points out that Respondent No.5 though defaulter made incorrect statement in in his nomination paper and then in Appeal after rejection of his nomination paper, came 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. up with a receipt showing repayment of loan to Respondent No.4 society on 1st March, 2011. He invites attention to certificate dated 28th February, 2011 issued by Respondent No.4 society declaring Respondent No.5 to be defaulter. 3. Learned counsel for Respondent No.5 states that there never was any demand for repayment by Respondent No.4 to Respondent No.5. He points out that present petitioner happens to be Chairman of Respondent No.4 and hence with oblique objective the Respondent No.4 never informed petitioner about repayment and then made an attempt to have him declared disqualified. His contention is, the default in non-payment is curable and as never any demand notice was received, payment on 1st March, 2011 must be presumed to be within time. For said non-payment, a disqualification under section 73-FF cannot be inferred. He is relying upon judgment in 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. the case of "Ramesh Rajaram Patil V/s The Additional Commissioner and others" reported in 1995 (2) Bom. C. R. 264. In the alternative and without prejudice, he relies upon judgment of this Court in the case of "Geeta Shirish Cahudhari V/s State of Maharashtra and others" to urge that remedy of filing petition under section 91 of Maharashtra Cooperative Societies Act, 1960 is most appropriate in such circumstances. 4. The Respondent No.4 before this Court has filed affidavit in reply in support of the petition. 5. Learned A.G.P. is supporting the impugned orders. 6. The facts clearly show that on last date prescribed for filing of nomination i.e. 27th February, 2011 the Respondent No.5 had not cleared his loan liability to Respondent No.4 society. That amount has been repaid on 1st March, 2011 and hence he was a defaulter on 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. that date. Judgment in the case of "Ramesh Rajaram Patil V/s The Additional Commissioner and others" (supra) considers controversy referable to section 73FF (1)(c) and therefore the necessity of demand from society. This judgment is already considered and distinguished by this Court in its later judgment in Writ Petition No.451 of 2011 decided on 3rd February, 2011. Similarly, contention about availability of alternate remedy is also looked into in that matter and in the light of later Division Bench judgment this Court has found that in writ jurisdiction interference with such matters is possible if that interference is to protect the sanctity of the process and to subserve it. 7. Mr. Naik Thigle lastly contended that the Respondent/ Returning Officer, in the alternative, should be directed to undertake fresh process for filling in the vacancy as 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Respondent No.5 is the loan contestant from that category. It is clear that filling in seat has to be regulated by provisions of law and hence no such direction can be issued, at this stage to Respondent No.3 Returning Officer. In these circumstances, order passed by Respondent No.4 allowing the appeal No.2 of 2011 on 15th March, 2011 is quashed and set aside. 8. Authentic copy of this order is permitted as per usual procedure. [B.P.DHARMADHIKARI, J.] Dated:25/03/2011. ans/2193