- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5824 OF 2006 Vita Merchants Co-operative Bank Ltd. ...Petitioner. VS. 1.Anandrao Bapurao Jadhav and others. ...Respondents --- Mr.S.S.Patwardhan, for Petitioner. Mr.Ajay S.Patil, for Respondent no.1. Mr.V.S.Gokhale, A.G.P. for Respondents 2 & 3. CORAM: D.K.DESHMUKH, J. CORAM: D.K.DESHMUKH, J. CORAM: D.K.DESHMUKH, J. DATED: 25th January,2008. DATED: 25th January,2008. DATED: 25th January,2008. P.C. P.C. P.C.: 1. Rule returnable forthwith. Heard finally by consent of parties. 2. The facts that are material and relevant for deciding this petition is that the petitioner bank made an application for recovery certificate under Section 101 of the Maharashtra Co-operative Societies Act before the Assistant Registrar, Co-operative Societies. The respondent no.1 who is a debtor filed a dispute before the Co-operative Court and made an - 2 - application for restraining the petitioner-bank from recovering the amount from respondent no.1. The Co-operative Court by an ex-parte order dated 17.2.2005 granted ex-parte interim injunction restraining the bank from making recovery. It appears that the order was produced by the debtor before the Assistant Registrar before whom the proceedings for issuance of recovery certificate was pending. By order dated 30.9.2005, in view of the ex-parte interim order passed by the Co-operative Court, the proceedings for issuance of recovery certificate were dropped by the Assistant Registrar. The bank after being served with the ex-parte ad-interim order passed by the Co-operative Court moved for vacation of that order. The co-operative Court has decided the application for temporary injunction filed by the debtor finally by its order dated 10.11.2005. The application for temporary injunction was rejected. After that application was rejected, the petitioner- bank moved the Assistant Registrar for reviving the proceedings for issuance of recovery certificate. The order was passed on 14.12.2005 by the Assistant Registrar reviving the proceedings in view of the vacation of the ad-interim injunction by the Co-operative Court. After the proceedings were revived, a notice was issued to the - 3 - debtor. The debtor appeared before the Assistant Registrar. On 7.2.2006 both the lawyers were present before the Assistant Registrar. At the request of the debtor, hearing of the matter was adjourned to 21.2.2006. On 21.2.2006 the matter was adjourned to 27.2.2006. In the meantime, it appears that the debtor moved an application under Section 154 of the Act invoking revisional jurisdiction of the respondent no.3 Divisional Joint Registrar challenging the order of the Assistant Registrar by which he had revived the proceedings for recovery certificate. That revision was decided by the Divisional Joint Registrar respondent no.3 by his order dated 27.2.2006. The Divisional Joint Registrar has allowed the revision and set aside the order passed by the Assistant Registrar reviving the proceedings for recovery certificate for the reason that the Assistant Registrar does not have power to review his order. It is this order of the Divisional Joint Registrar which is challenged in this petition. 3. The learned Counsel appearing for petitioner submits that there was no question of Assistant Registrar reviewing the order dropping the proceedings. The proceedings were dropped because of the ex-parte interim order passed by the Co-operative - 4 - Court and therefore, moment that order was vacated the proceedings were revived. The proceeding for recovery certificate was not decided on merit and dropped, and therefore, there is no occasion for review of that order. The learned Counsel submits that the reasons given by the Divisional Joint Registrar for holding that the order of the Assistant Registrar reviving the proceedings is illegal are absurd and perverse. The learned Counsel appearing for debtor on the other hand submits that the proceedings were dropped and therefore, if the bank had any grievance against that order it was for the bank to file revision against that order and it is only the revisional authority which should have restored the proceedings. 4. I have gone through the record. To my mind it is clear that the order made by the respondent no.3 which is impugned in the petition is not only a perverse order but has been made by the respondent no.3 with malafide intention. The reasons given by him are absolutely perverse. It is clear from the order made by the Assistant Registrar dropping the proceedings that he dropped the proceedings because the bank was restrained from making recovery by ad-interim order passed by the Co-operative Court. - 5 - Therefore, in the face of that order the Assistant Registrar could not have issued recovery certificate, therefore, he dropped the proceedings. The proceedings were not dropped by the Assistant Registrar by rejecting the application of the bank on merit, and therefore, when it was pointed out to him that the Co-operative Court has vacated the order of temporary injunction, the only course that could have been followed by the Assistant Registrar in law was to revive the proceedings and to proceed to consider the application of the bank on merit and that is the course which was adopted by the respondent no.1. There was no question of Assistant Registrar reviewing its order because there was no order passed on merit. Because of the interim order passed by the co-operative Court, there was an impediment created in proceeding further in the matter of issuance of recovery certificate and therefore, the proceedings for recovery certificate were dropped and as soon as the impediment was cleared the only option available to the Assistant Registrar was to revive the proceedings and proceed further. In my opinion, the respondent no.3 by exercising his revisional jurisdiction in such a manner has abused and misused his power. The result of the order is that the bank is left with no remedy though there is outstanding - 6 - debt against the respondent no.1 which precisely appears to be the intention behind making the order. In my opinion, the debtor by filing revision and by challenging the order has abused the process of the Court. Under the scheme of the Co-operative Societies, a co-operative bank can make an application for recovery certificate under Section 101 of the Co-operative Societies Act and that in those proceedings the debtor against whom the application has been made by the bank gets an opportunity to put forth all his defence. Really speaking, therefore, when the bank made an application for issuance of recovery certificate there was no justification for respondent no.1 debtor to approach the co-operative Court and invoke that jurisdiction. Not only the respondent no.1 invoked that jurisdiction but he also managed to get an ex-parte order from the co-operative Court not only stopping the recovery but also creating impediment in the way of the proceeding of issuance of recovery certificate. After he failed in the co-operative Court and after the proceedings for recovery certificate were revived, he approached the Revisional authority by again abusing the process of law. In my opinion, therefore, merely allowing the petition to enable the Assistant Registrar to go on - 7 - with the proceedings for recovery certificate will not serve the interest of justice but cost will have to be imposed on the respondent no.1 for abusing the process of the Court in such a manner. In the result therefore, the petition succeeds and is allowed. Rule is made absolute in terms of prayer clause (a). Respondent no.1 is directed to pay as and by way of cost of this petition Rs.10,000/- to the petitioner. ---