(1) WP. 233.1993 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 233 OF 1993 Ahmednagar Shahar Sahakari Bank Ltd. Navi Peth, Ahmednagar .. Petitioner (Orig. Disputant) VERSUS 1] M/s Kishordas Chimanlal Virani, & Company House No.3352, Khist Galli At Ahmednagar 2] Shri. Chhabildas Chimanlal Virani, 3] Shri. Kishordas Chimanlal Virani, No. 2 and 3 both R/o Ganj Bazar, Ahmednagar 4] Shri Bipin Chimanlal Virani, Ganj Bazar, Ahmednagar 5] Shri Arvind Mahalal Shah, R/o House No.3477 Khist Galli, at Ahmednagar 6] Bhima Shankar Balaji Phale, R/o House No.680, Bhingar Camp, Ahmednagar .. Respondents (Ori. Opponents) Mr. S.D. Kulkarni, Advocate for the Petitioner None present for the respondents 1 to 6 though served ... CORAM : V.R. KINGAONKAR, J. DATED : 1ST JULY, 2010 ORAL JUDGMENT:- 1] By this Petition, the petitioner-bank (2) WP. 233.1993 challenges judgment and order rendered by learned Member, of the Maharashtra State Co-operative Appellate Court, in Review Application no.1 of 1991. By the impugned order, the Review Application was allowed and rate of interest awarded in favour of the petitioner-bank was reduced to 15% p.a. instead of 18% p.a. 2] The Co-operative Appellate Court by judgment dated 2.9.1989 was pleased to allow Appeal no. 22 of 1983 which was preferred by the petitioner-bank against part of the order rendered by the Co- operative Court No.III. The dispute before the Co- operative Appellate Court was only in respect of the rate of interest and the period for which it was permissible. It appears that the Co-operative Appellate Court duly considered the appeallant's submissions and the relevant case law and came to the conclusion that the respondents were liable to pay interest @ 18% p.a. on the amount adjudged i.e. Rs.23,272=60p. from 11.4.1980 till realisation of the entire amount. This judgment of the Co-operative Appellate Court in appeal no. 22 of 1983 was rendered on 2.9.1989. No revision application was filed by the respondents nor any review application was filed within a period of 90 days as provided under section 150(2) of the Maharashtra Co-operative Societies Act, 1960. The respondents, however, filed the review application after about a couple of years on (3) WP. 233.1993 13.1.1991. They submitted that the rate of interest awarded by the Co-operative Court as well as the first appellate Court was not in accordance with the terms of the agreement and therefore was liable to be reduced to 15% instead of 18%. The Co-operative appellate Court allowed the review application vide the impugned order. 3] Heard learned counsel for the petitioner- bank. None appears for the respondents. 4] Question involved in the Petition is whether there was substantial reasons to entertain the review application after the period of couple of years and moreover, whether the review application could be entertained without there being tangible material to infer that the respondents had discovered new and important matter of evidence which they could not have discovered inspite of due diligence or that it was not within their knowledge. 5] Section 150 of the Maharashtra Co-operative Societies Act, 1960 reads as follows:- 150. Review of orders of Co-operative Appellate Court (1) The Co-operative Appellate Court may, either on the application of the Registrar, or on the application of any party interested, review its own order in any (4) WP. 233.1993 case, and pass in reference thereto such order as it thinks just; Provided that, no such application made by the party interested shall be entertained, unless the Co-operative Appellate Court is satisfied that there has been the discovery of new and important matter of evidence, which after the exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when its order was made, or that there has been some mistake or error apparent on the face of the record, or for any other sufficient reason: Provided further that, no such order shall be varied or revised, unless notice has been given to the parties interested to appear and be heard in support of such order. (2) An application for review under the foregoing sub-section by any party, shall be made within ninety days from date of the communication of the order of the Co- operative Appellate Court. . Perusal of the proviso appended to sub-section (1) of section 150 would make it amply clear that the Co-operative appellate Court was required to reach a conclusion that inspite of due diligence the respondents could not have discovered the material which was being utilised by them in support of the review application or that it was a new material which was not known to them at the relevant time. (5) WP. 233.1993 It is important to note that the petitioner-bank had preferred the appeal only to the extent of the grant of interest though, the Co-operative Court, in fact, rendered award in it's favour. Thus, the limited contentious issue before the Co-operative appellate Court was in respect of the rate of interest and the period for which the interest could be charged on the amount of loan or the amount which was ultimately adjudged. The Co-operative Court had awarded interest only on the loan amount without considering the amount which was due as on the date of filing of the dispute before the Co-operative Court. Needless to say, the controversy raised by the petitioner-bank was limited to the issue regarding the rate of interest and the charging thereof on a particular amount from a particular date. It is also important to note that the respondent did not appear before the Co-operative appellate Court. They did not raise any dispute as regards the claim put forth by the petitioner-bank. No objection was raised by them in respect of the claim of interest is sought by the petitioner-bank. Not only that, for a couple of years after the judgment of the Co-operative appellate Court, the respondents were dormant. The application for review was filed after about a couple of years. Section 150(2) of the M.C.S. Act purports to show that the application for review shall be made within 90 days from the date of the communication of the order of the Co-operative appellate Court. The (6) WP. 233.1993 Co-operative appellate Court held that since the intimation was not given to the respondents, the period of limitation was required to be computed from the date of communication of the order in question. The respondents vaguely allege that they came to know about the order under review on 4.1.1991 and thereafter applied for certified copy of the judgment. It appears that the Co-operative appellate Court did not call upon the respondents to explain as to how they gathered the knowledge on 4.1.1991 and had no knowledge of the impugned judgment prior to the said date. 6] True, the Co-operative Appellate Court referred to term no.5 of the hypothecation agreement. The agreement provides for charging interest @ 15% p.a. At the same time, the agreement dated 8.7.1972 (Exh.16) was available while deciding the appeal by the Co-operative appellate Court and therefore, it cannot be said that there was any subsequent discovery of new fact. The Co-operative appellate Court could not have exercised the powers like an appellate Court, in order to rectify the mistake committed by it on the basis of appreciation of evidence. The Co-operative appellate Court seems to have re-appreciated the evidence and re-interpreted the document styled as hypothecation agreement (Exh.16). The cash credit facility was obtained by the respondent no.1. It was a commercial loan and (7) WP. 233.1993 therefore, compound interest could be charged. The review application did not indicate any ground available under the proviso appended to section 150(1) of the M.C.S. Act. The agreed rate of interest could be 15% p.a., yet the Court could have granted the interest then prevailing as per the bank's rate and particularly in respect of the commercial loan. In any case, the Co-operative appellate Court could not have exercised the review power without there being sufficient material to infer that there was discovery of new and important matter of evidence. There was nothing new about the hypothecation which is interpreted by the appellate Court while allowing the review application. 7] Taking overall view of the matter, in my opinion, the impugned order is quite unsustainable. Review jurisdiction is erroneously exercised by the Co-operative appellate Court. Hence the Petition is allowed. The impugned judgment and order is set aside. No costs. Rule made absolute accordingly. Sd/- [V.R. KINGAONKAR, J.] arp