1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 10453 OF 2010 AND WRIT PETITION NO.: 1221 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 10453 OF 2010 AND WRIT PETITION NO.: 1221 OF 2011 *** 1. Heard finally with consent of parties. 2. Advocate Mr. Irpatgire points out that Respondent bank filed a dispute under section 91 of Maharashtra Cooperative Societies Act, 1960 [hereinafter referred as the Act of 1960] for recovery of loan amount and in that in December, 2004 present petitioner Nos.2 and 3 filed an application for supply of necessary documents to them. The application remained pending and the documents were then tendered for the first time on 3rd January, 2007. On very same day, evidence of present respondent was recorded and without extending opportunity to petitioner to cross examine them, or then to lead any evidence in defence, the Cooperative Court delivered the Award. The petitioners then filed an appeal 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 10453 OF 2010 AND WRIT PETITION NO.: 1221 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. under section 97 of 1960 Act before State Cooperative Appellate Court vide Appeal No.62 of 2007. The Appellate Court appreciated this position, found that matter was not proceeded without written statement and hence granted opportunity to petitioner to contest but then proceeded to impose certain conditions like deposit of principal amount of Rs.70 Lacs with the respondent bank within a period of three months. Learned counsel states that when Appellate Court was satisfied that trial Court had proceeded with undue haste, such a direction to deposit could not have been given. 3. Advocate Shri Natu while opposing the petition as filed and as petitioner in Writ Petition No.1221 of 2011 invites attention to fact that the application filed for supply of documents was filed by present petitioner Nos.2 and 3. Petitioner Nos.1 and 2 did not 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 10453 OF 2010 AND WRIT PETITION NO.: 1221 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. chose to appear and prosecute the matter before trial Court i.e. cooperative Court. The Cooperative Court rejected application for supply of documents on 8th November, 2006 and proceeded without written statement against Petitioner Nos.2 and 3. On 14th December, 2006 Cooperative Court adjourned the matter for evidence of the creditor bank. Recording of evidence began on 3rd January, 2007. On that day original documents were produced for facilitating recording of evidence though photo-stat copies were already on record earlier. In this view of the matter, according to him, the impugned judgment of cooperative Appellate Court is unsustainable. In the alternative, and without prejudice to his case, he argues that in any case, the matter could not have been re-opened even for Petitioner Nos.1 and 4 in writ petition NO.10453 of 2010. He contends 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 10453 OF 2010 AND WRIT PETITION NO.: 1221 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. that as those opponents have chosen not to appear before the Cooperative Court the Appellate Court should not have altered the course followed by Cooperative Court insofar as these opponents are concerned. 4. The facts clearly show that on 8th November, 2006 prayer of petitioner Nos.2 and 3 in Writ Petition NO.10453 of 2010 for supply of documents was rejected. However, that fact is not looked into by Cooperative Appellate Court. The observations made by Cooperative Appellate Court in paragraph 21 created a doubt whether Cooperative Court had proceeded further after passing "No W.S." order, or without passing it. However, Shri Natu has pointed out that below Exhibit-1 an order to proceed without written statement came to be passed on 8th November, 2006 itself. Because of this mistaken appreciation of R. & P. the Cooperative 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 10453 OF 2010 AND WRIT PETITION NO.: 1221 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Appellate Court proceeded to grant opportunity to present petitioners to contest the matter. It found that interest of bank was sufficiently protected by asking the appellant before it to deposit amount of Rs. 70 Lacs i.e. amount of principal. 5. Insofar as writ petition NO.10453 of 2010 is concerned, challenge to this judgment and view of cooperative Appellate Court at their instance is, therefore, misconceived. The petition is, therefore, rejected. 6. Learned counsel for Petitioner in writ petition No.1221 of 2011 seeks withdrawal of the petition in view of rejection of writ petition No.10453 of 2010. Writ Petition NO. 1221 of 2011 stands disposed of as withdrawn. [B.P.DHARMADHIKARI, J.] Dated:22/03/2011. ans/10453