1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.566 OF 2009 In WRIT PETITION NO.1902 OF 2009 WITH NOTICE OF MOTION NO.4239 OF 2009 In APPEAL NO.566 OF 2009 In WRIT PETITION NO.1902 OF 2009 Smt.Parvatibai Shivajirao Shendge : Appellant (Orig. Petitioner) V/s. The Sangali Sahakari Bank Limited & Ors. : Respondents ... Mr.V.R. Dhond i/b. T.N. Tripathi & Co., for the appellant. Mr.Aspi Chinoy, Senior Advocate, with Mr.Harinder Toor and Mr.S.B.Pawar i/b. Mr.Subhash Bane for respondent no.1. Mr.Sanjay Jain with Mr.Mayur Khandeparkar for respondent no.4. Ms Uma Palsule-Desai, Asstt. Govt. Pleader for the State. .... CORAM : J.N.PATEL, ACTING C.J. & B.R. GAVAI, J. DATE : FEBRUARY 01, 2010. 2 P.C.: This appeal arises out of the order passed by the learned single Judge dated 5.11.2009 whereby dismissing the petition filed by the present appellant and upholding the order passed by the Special Recovery Officer rejecting the application filed by the appellant under rule 107(19) of the Maharashtra Co-operative Societies Rules, 1961 (hereinafter referred to as the said “Rules”) and the order passed by the Divisional Joint Registrar dated 3.8.2009 thereby dismissing the revision. 2. The respondent no.1 has sanctioned a loan for Rs.1,30 crores in favour of the respondent no.4, which is a partnership firm. The deceased Shivajirao was one of the partners of the said firm. The loan was sanctioned by the Bank incidentally when Shivajirao happened to be the Chairman of the said Bank. The Bank had also extended overdraft facility in the sum of Rs.30 lakhs. Since the respondent no.4 did not repay the amount, an application for issuance of recovery certificate under section 101 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the said “Act”) was made. The competent authority by an order dated 13.9.2002 allowed the application and issued recovery certificates for Rs.2,68,59,734/- and Rs.2,25,01,782/-, respectively. Since the amounts under the recovery certificates were not paid, an attachment was levied by the Bank on a residential flat being flat 3 no.101 on the 1st floor of Sukhada Co-operative Housing Society Ltd., Sir Pochkhanwala Road, Worli, Mumbai—400 018. The said attachment was questioned by the present appellant by making an application under rule 107(19) of the Rules. The said application was rejected by order dated 29.4.2009. The revision filed there against also was rejected by the Divisional Joint Registrar (respondent no.3) by order dated 29.4.2009. The petition preferred there against has been rejected by the impugned order. Hence, the present appeal. 3. Mr.Dhond, the learned counsel appearing for the appellant, submits that the learned single Judge as also the authorities have failed to take into consideration the fact that the legal heirs of the deceased Shivajirao were never brought on record in the proceedings before the Asstt. Registrar while issuing the recovery certificate. He, therefore, submits that since the legal heirs were not brought on record, the entire proceedings which proceeded in the absence of the legal heirs are non est in law. He further submits that in view of the Notification dated 29.4.2009, the respondent no.2 had no authority in law to proceed for recovery and, therefore, the proceedings initiated by him being without jurisdiction are non est in law. 4. Insofar as the first contention raised by the learned counsel on 4 behalf of the appellant is concerned, it can be seen that the learned single Judge has found that the recovery certificates which were issued on 13.9.2002 clearly show the presence of Suresh, Ramesh and Sandeep in their capacity as heirs. It has been further found that all these three persons could have been present only as heirs of the deceased Shivajirao. It has further been found that apart from the aforesaid three persons, the fourth son Prakash, who was a partner of the respondent no.4 was already on record. In this factual background, the learned single Judge found that the estate of the deceased partner was substantially represented in the proceedings before the Asstt. Registrar of Co-operative Societies. The learned single Judge has further found that the loan was sanctioned by the Chairman of the Bank who also happened to be a partner of the firm. It has also been found that even after the death of the father, one of the partners, viz., Prakash Shendge who was a member of the Legislative Assembly had by his letter dated 27.7.2005 assured the Bank that he would pay an amount of Rs.5 crores within a period of 15 days. The learned single Judge has, therefore, held that a decree against the firm has the same effect as a decree against the partners. It has been found that the residential flat in question was the property of the deceased partner. 5. We have also examined the recovery certificate which is annexed to the appeal memo. The same would show that the three sons of the 5 appellant were present in the proceedings before the Asstt. Registrar. It can also be seen that apart from the three sons, the fourth son Prakash Shendge was on record in the proceedings before the Asstt. Registrar. In this factual background, we do not find that the learned single Judge has committed an error in holding that the interest of the deceased partner was substantially represented in the proceedings before the Asstt. Registrar. 6. Insofar as the second ground which is sought to be raised by the amendment is concerned, it can be seen from the perusal of section 156 of the Act that the officer of the society who is empowered by the Registrar is entitled to make recovery of the amount due to it under a certificate granted by the Registrar under sub-section (1) of section 101 of the Act. In view of the provisions in the parent Act which authorises the Registrar to empower an officer of the society to recover the amount due to the society and, in fact, such an officer being empowered in that behalf, we do not find any merit in the said ground also. The appeal is, therefore, found to be without any merit. 7. Accordingly, the appeal is dismissed. 8. In view of the dismissal of the appeal, the Notice of Motion does 6 not survive and the same stands dismissed. ACTING CHIEF JUSTICE B. R. GAVAI, J.