1 wp-279-11gr.sxw dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 279 OF 2011 Aparnaraj Co-op. Hsg. Society Ltd. .... Petitioner vs 1 State of Maharashtra & anr. .... Respondents ALONG WITH WRIT PETITION NO. 281 OF 2011 WITH CAW/78/2011 Aparnaraj Co-op. Hsg. Society Ltd. .... Petitioner vs 1 State of Maharashtra & anr. .... Respondents AND ALONG WITH WRIT PETITION NO.283 OF 2011 WITH CAW/79/2011 Aparnaraj Co-op. Hsg. Society Ltd. .... Petitioner vs 1 State of Maharashtra & anr. .... Respondents Mr. R. B. Jain i/by M/s. Legal Juris for the petitioner. Mr. R.M. Patne, AGP for respondent no.1/State. Mr. Milind Parab i/by Mr. Milind Parab and Associates for Respondent no.2. 2 wp-279-11gr.sxw CORAM: ANOOP V. MOHTA, J. DATE : March 28, 2011 P.C.: Since in all these Petitions common point is involved, and as based upon the common action and similar Consent Terms, heard together and, therefore, this common order. 2 The Petitioner has invoked Articles 226 and 227 of the Constitution of India and thereby challenged the impugned order dated 22 July 2010 passed by the Cooperative Court, Thane and 24 December, 2010 passed by the 6th Civil Judge, Senior Division, Thane. 3 Admittedly, based upon the Consent Terms, the amount of Rs.4 lacs had been paid by the respective applicants. What remains was the balance amount of Rs.6 lacs. The case was that though they were ready to deposit the amount and expressed their willingness by even attending the office of the Advocate, however the other side deliberately not attended and, therefore, the balance amount could not be paid on the date as agreed. That default has resulted into the impugned orders. 3 wp-279-11gr.sxw 4 This Court by order dated 13.01.2011, after hearing both the parties, on the Civil Applications, has observed as under: “2 The applicant/petitioner is aggrieved by the order passed by the 6th Jt. Civil Judge, S.D. Thane, who was pleased to issue a warrant of attachment of the petitioner’s Savings Bank Account. It is submitted that the impugned order is passed without giving notice to the applicant. It is further submitted that even the orders passed under S. 101 of the Cooperative Societies Act, does not take into consideration that the amount of Rs. 4 lakhs has been paid by the applicant to the respondent. It is submitted that as a result of the impugned order, the day- to-day activities of the Society have come to a grinding hault. In my view, it would be appropriate if the petitioner is directed to deposit Rs. 6 lakhs in this Court within a week, without prejudice to his rights and contentions raised in the petitions. In the mean time, there shall be an ad-interim relief in terms of prayer clauses (a) and (b). 4 Liberty is granted to the petitioner for withdrawal of the petition, if the parties arrived at the settlement. 5 It is clarified that the attachment order being set aside, the bank will permit the petitioner to operate its account. In the event the petitioner fails to deposit amount of Rs. 6 lakhs within one week from today, the said ad-interim order shall stand vacated. The undertaking given by the counsel appearing for the petitioner upon the instructions of the Secretary of the Society, who is present in the Court, that petitioner will deposit Rs. 6 lakhs within one week, is accepted.” 5 Accordingly, the amount has been deposited in the Court i.e. Rs. 6 lacs each. 4 wp-279-11gr.sxw 6 In view of the above, I am of the view that opportunity need to be given to the parties to show their bonafides and willingness as they expressed to deposit the balance amount, but they could not furnish the same. This will curtail and in fact settle further dispute between the parties as they have already agreed and as recorded in the Consent Terms to settle the matter upon payment of Rs. 10 lacs, of which Rs. 4 lacs has already paid on the date of execution of the Consent Terms. 7 Now, as the balance amount has been deposited, therefore, I see there is no reason to maintain the order of attachment/action, based upon the alleged default. However, I am inclined to observe that the concerned Court will hear the matter by taking note of the fact that Rs. 6 lacs had been deposited in the Court as if it is a due compliance of the basic order/Consent Terms between the parties and pass an appropriate oder. 8 Resultantly, all the Petitions are allowed in terms of prayer (a) with the above directions. The Cooperative Court, Thane is hereby directed to re-hear the matter after giving full opportunity to both the parties and pass an appropriate order accordingly. 5 wp-279-11gr.sxw 9 The amount so deposited by the Petitioner/Society in the Court, pursuant to order dated 13.01.2011 to stand transferred in the Cooperative Court, Thane in the respective account of Dispute No. 146 of 2009, Dispute No.146 of 20090 and Dispute No.74 of 2007. The Cooperative Court, Thane to pass an appropriate order accordingly preferably within a period of eight weeks from today. 10 In view of disposal of Writ Petitions, Civil Application No. 78/2011 in Writ Petition No.281/2011 and Civil Application No. 79/2011 in Writ Petition No.283/2011 do not survive and are disposed off accordingly. (ANOOP V. MOHTA, J.)