WP 1929/10 1 SSK/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1929 OF 2010 Mr. Tapan Dutta & Anr. ....Petitioners Versus Secretary/Chairman, Chandra C.H.S., Thane & Ors. ...Respondents Ms. Geetanjali Dutta, Advocate for the Petitioners. Mr. Narayankumar a/w.Mr. K. R. Shekhawat, Advocate for Respondent No.1. Ms. P. S. Cardozo, AGP for Respondent Nos.2 & 3. CORAM : R. V. MORE, J. DATED : 5th AUGUST, 2010. P.C.: Heard learned Counsel for the respective parties. 2. The petition arises out of recovery proceedings under section 101 of the Maharashtra Co-operative Societies Act, 1960. The Deputy Registrar passed an order dated 26th December, 2007 thereby granting recovery certificate against the Petitioners and in favour of Respondent No.1-Society for an amount of Rs.19,501/- alongwith interest. This recovery certificate came to be challenged by the Petitioners by filing revision under section 154(2) of the M.C.S.Act before the Divisional Joint Registrar. The Divisional Joint Registrar dismissed the Petitioners’ revision and therefore, the present petition. WP 1929/10 2 SSK/10 3. The learned Counsel for the Petitioners made following submissions: 1. The amounts of Rs.13,800/- and Rs.48,000/- deposited by the Petitioners with the builder and Respondent No.1-Society respectively have not been taken into consideration while issuing the certificate under section 101 of the M.C.S.Act, 1960. 2. The Respondent No.1-Society initially filed a recovery proceeding which was abandoned and thereafter second recovery proceeding is filed and therefore same is not maintainable. 4. The learned Counsel for the Respondent No.1-Society denied receipt of Rs.13,800/- and Rs.48,000/- allegedly deposited by the Petitioners with the Builder and Respondent No.1-Society respectively and submitted that these amounts cannot be taken into consideration. He further submitted that the 1st proceeding was for recovery of an amount of Rs.6,000/- only and same was filed in the year-2001. The 2nd proceeding was filed in the year-2002 for an amount of arrears of maintenance and therefore, there is no question of res-judicata. 5. Having considered the rival submissions of the respective counsel and having gone through compilation of the writ petition alongwith WP 1929/10 3 SSK/10 the impugned order, I do not find any merit in the writ petition. The amount of Rs.13,800/- was claimed to have been deposited by the Petitioners with the Builder. However, concurrent findings are recorded by the concerned authorities that this amount was not received by the Respondent No.1- Society. The said amount was alleged to have been paid to the Builder prior to registration of the Society. It is within exclusive knowledge of the Petitioners for what purpose the said amount was paid to the Builder. In the absence of any evidence that said amount was credited to the account of Respondent No.1- Society, I agree with the findings of the lower authorities that this amount cannot be be considered while calculating the outstanding amount of maintenance. So far as second amount of Rs.48,000/- is concerned, the Petitioners claim that this amount was paid by cheque to the Respondent No.1-Society on 20th August, 2006. The Petitioners also relies upon receipt no.922 and cheque in this regard. The Respondent No.1-Society in this regard claims that the receipt relied upon by the Petitioners is forged one. The Respondent No.1-Society produced original receipt no.922. I have perused both receipts produced by the Petitioners and Respondent No.1-Society. The original receipt no.922 shows that the Society received an amount of Rs.725/- from one Mrs. Asha Dhanraj Shahdadpur and not from the Petitioners. So far as cheque relied upon by the Petitioners for an amount of Rs.48,000/- is concerned, the same is drawn on North Kanara Goud Saraswat Co-operative Bank and WP 1929/10 4 SSK/10 made payable to “Self”. Obviously, the cheque was not given to the Society and therefore, the amount under the said cheque was not credited to the said society and therefore, I do not find any substance in Petitioners’ contention that he has deposited the said amount of Rs.48,000/- in the Respondent No.1-Society’s account. 6. Regarding contention of the Petitioners that second recovery proceeding is barred by the res-judicata, I find that the 1st recovery certificate was filed immediately after formation and registration of the Respondent No.1-Society for recovery of an amount of Rs.6,000/-. The 2nd recovery proceeding was filed in the year 2002. The period covered under the 1st proceeding was also the subject matter of the 2nd Proceeding. It is not disputed by the learned Counsel for the Petitioners that the 1st recovery proceeding was abandoned and no order under section 101 of the M.C.S.Act, 1960 was passed in that regard. In that view of the matter, this objection is also without any merit. Taking over all view of the matter, I do not find any error in the order passed by the lower authorities so as to enable me to interfere with the impugned order in writ jurisdiction of this Court under Article 227 of the Constitution of India. The Petition is, therefore, dismissed. (R. V. MORE, J.)