1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.9624 OF 2009 The Managing Director Shri Vitthal Sahakari Sakhar Karkhana Ltd. ...Petitioner vs. The Managing Director Shriram Sahakari Sakhar Karkhana Ltd. ...Respondent Mr.R.V.Govilkar i/b Mr.Sarang Aradhye for the petitioner None for the respondent CORAM :A.S.OKA,J. DATE : MAY 3, 2010 P.C.: 1 Heard the learned counsel for the petitioner in support of this writ petition under Article 227 of the Constitution of India. Notice for final disposal was issued on 11 th March 2010. None appears for the respondents. I have heard the learned counsel for the petitioner. 2 The petitioner is the disputant in a dispute filed under section 91 of the Maharashtra Co-operative Societies Act,1960 (hereinafter referred to as the said Act of 1960). An Award was made in the said dispute by the learned Judge of the Co-operative Court directing the respondent to pay a sum of Rs.10,15,278.22 along with interest accrued thereon as specified therein. On the basis of the certificate issued by the learned Judge of the Co-operative Court under section 98(a) of the said Act of 1960, an application for execution was filed before the Civil Court. By the impugned order, the learned III Joint Civil Judge (Senior Division), Satara 2 held that the Civil Court cannot become executing Court in execution of Award passed by the Co-operative Court. The learned Judge observed that the remedy of the petitioner was to approach the Collector for recovery of the amount. The learned Judge relied upon the decision of this Court in case of Sadguru Construction Co. Pvt. Ltd. Vs. Greater Bombay Co-operative Bank Ltd [2007 (5) Bombay Cases Reporter 810] for coming to the conclusion that jurisdiction of the Civil Court was barred. 3 This issue is no longer res integra. In the case of The Wai Urban Co-operative Bank Ltd, Wai Vs. Rajendra Sonaba Bhise & Others in Writ Petition no.1107 of 2010, this Court by Judgment and Order dated 13 th April 2010 has held that an execution application is maintainable before the Civil Court for executing the Award made under section 96 of the said Act of 1960. The paragraphs 4 and 5 of the decision read thus : 4 On plain reading of section 98, the same is applicable to recovery of money payable as per the Award passed by the Co-operative Court under section 96 of the said Act. Clause (a) of section 98 provides that on certificate signed by the Co-operative Court the Award under section 96 of the said Act shall be deemed to be a decree of Civil Court and shall be executed in the same manner as the decree of the such Court. Thus, a legal fiction is created by the clause (a) by which an Award under section 96 of the said Act is made a decree of Civil Court. Once a certificate in terms of clause (a) of section 98 is issued by the Co-operative Court on the basis of the Award made under section 96 of the said Act, 3 the Award is to be executed as if it is a decree of the Civil Court. Thus, the reference in clause (a) of section 98 is to the Civil Court and not to the Co-operative Court. The reason being by a legal fiction, such Award becomes a decree of a Civil Court which is capable of being executed by a Civil Court. The reference in section 98(a) to such Court is to a Civil Court and not to Co-operative Court. If intention was to confer jurisdiction on a co-operative Court to execute the Award, there was no occasion to provide for a certificate under section 98 (a) of the said Act. Thus, on the basis of the certificate under section 98 (a), the Award can be executed in accordance with provisions of the Code of Civil Procedure,1908 and in particular part II thereof read with Order XXI thereof. 5 The learned trial Judge has relied upon the decision of this Court in case of Sadguru Construction Co.Pvt.Ltd. Vs. Greater Bombay Co-operative Bank Ltd.[2007 (5) Bombay C.R. 810]. This Court was dealing the execution of a recovery certificate issued in terms of section 101 of the said Act. In the context of the execution of such certificate, this Court held that Civil Court cannot execute such certificate. This Court relied upon section 163 of the said Act which bars the jurisdiction of Civil Court. However, the section provides that the jurisdiction of Civil Court is barred save as expressly provided under the said Act. Section 98 (a) of the said Act specifically provides that on 4 certificate signed by a Co-operative Court, an Award under section 96 shall be deemed to be a decree of Civil Court which can be executed in the same manner as a decree of Civil Court. In view of the aforesaid decision, the impugned order is liable to be quashed and set aside. 4 Hence, writ petition is disposed of by passing the following order : i) Impugned order dated 31 st March 2009 is quashed and set aside. ii)The trial Court will proceed with the Special Darkhast No.8 of 2009 in accordance with law. iii)It is made clear that the Civil Court has jurisdiction to execute the Award passed by the Co- operative Court. JUDGE