1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4650/2009. 1) Hemant s/o Haribhau Ugale and another. - PETITIONERS VERSUS 1) The State of Maharashtra and others. - RESPONDENTS ***** Mr.VP Latange,Advocate for Petitioners; Mr.VG Shelke,AGP for Respondent Nos.1 and 2; Mr.VD Hon, Advocate for Respondent No.4; Mr.KS Bhore, Advocate for Respondent No.5. ----- CORAM : K.U.CHANDIWAL,J. DATE : 30th September, 2010. PER COURT: 1) Heard finally. 2) Respondent No.4-Bank lent financial assistance by way of cash credit facility to Respondent No.5. The petitioners offered a guarantee, also offered to create charge on their property by way of declaration. The declaration/letter of consent is signed by both the petitioners. Failure on the part of Respondent No.5 to discharge the liability to 2 Respondent No.4-Bank, entailed in action that the learned Assistant Registrar, Cooperative Societies, Ahmednagar, who, after evaluation of rival contentions, issued a certificate in terms of Section 101 of the Maharashtra Cooperative Societies Act, 1960. Needless to add, this certificate is a decree in its nature, has presumptive value. 3) The challenge in the writ petition by invoking Article 227 of the Constitution is, to the certification under Section 101 of the Maharashtra Cooperative Societies Act, 1960 referred above. 4) The learned Counsel for the petitioners submits in terms of Section 48 of Maharashtra Cooperative Societies Act, 1960, which contemplate creation of charge on immovable property of members borrowing from certain societies excludes the petitioners as guarantors from creating the charge offered in respect of their property. Learned Counsel in order to advance his further submissions placed reliance to the Judgment of this Court in the matter of Janata Commercial Cooperative Bank, Khamgaon Vs. State of Maharashtra, reported in 2010 (5) All M.R., 129. The learned Counsel also submits, the letter of consent is of 2003, while the alleged loan is virtually after 16 months and, therefore, there is manipulation of the consent letters 3 issued by the petitioners in favour of either Respondent Nos.4 and 5., at the instance of both of them to dupe the petitioners. 5) Learned Counsel, representing the Respondent No.4-Bank, submits, catena of judgments of the Apex Court and this Court has settled the field about the liability of a guarantor vis-a-vis borrower. The settled position indicated is, the liability of a guarantor is co-extensive and not alternate to the borrower. I endorse, this is correct legal position, does not warrant any other comment to be activated. 6) The above settled legal position is illustrated in a latest judgment of the Apex Court reported in 2009 (6) ALL MR 511 in the matter of Industrial Investment Bank of India Ltd. Vs. Biswanath Jhunjhunwala, and in paragraph 30 of the Judgment, His Lordships of the Apex Court, has observed as under : "30. The legal position as crystalized by a series of cases of this Court is clear that the liability of the guarantor and principal debtors are co-extensive and not in alternative. When we examine the impugned judgment in the light of the consistent position of law, then the obvious conclusion has to be that the High Court under its power of superintendence under Article 227 of the Constitution of India was not justified to stay further proceedings in O.A.156 fo 4 1997." 7) Apart from above impediment in the path of the petitioners herein, the liability of both also creates obstacle to entertain the writ petition. Section 154 of the Maharashtra Cooperative Societies Act, 1960 translate a revisionary power, seeking challenge to any action, which also incorporate challenge to the certification under Section 101 of the said Act issued by the learned Assistant Registrar. Section 154(2A) of the said Act conceive, " No application for revision shall be entertained against the recovery certificate issued by the Registrar under Section 101 unless the applicant deposits with the concerned society 50% amount of total amount recoverable dues." 8) In the light of this scenario, when efficacious remedy is available to the petitioners, the scope in terms of provision under Article 227 of the Constitution of India could not be countenanced and need not be encouraged. 9) The learned Counsel though canvassed that the document of consent is of 2003 while the cash credit loan facility was granted in the year 2004. However, in writ jurisdiction, it is not open to be addressed. Secondly, it was a cash credit loan facility, which has been renewed and the petitioners herein were the parties to all 5 the transactions. All these aspects were already addressed before the Assistant Registrar, as could be seen and the learned Register evaluated the contentions of the petitioners. 10) The observation of this Court, so far as context of Section 48 of the Act, is concerned, covers a very different field. The very section starts with a non-obstante clause, indicating thereby that it restricts and relates to a member and particularly a borrower so far as straight way creating charge over his property. It will not take adverse impact and effect to the provisions of Contract Act, particularly Section 128 thereof, which contemplate situation of the guarantor. 11) In the above set of facts, the writ petition lacks merits, dismissed. No costs. 12) The protection granted by this Court is extended for a period of three months, however, the petitioner to deposit Rs.1,00,000/- (Rupees one lac), directly with the Respondent No.4-Bank within a week, failure to do so, protection shall automatically stand terminated. (K.U.CHANDIWAL) JUDGE bdv/