1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 4639/2010 1. Smt. Sulbha w/o Vasant Wakhre, aged 65 years, Occupation : household. 2. Vinayak Vasant Wakhre, aged 48 years, Occ. Service. Both resident of 65, New Sneha Nagar, Wardha Road, Nagpur. PETITIONERS ...VERSUS... 1. The Divisional Joint Registrar, Co-operative Societies, Dhanwate Chambers, Sitabuldi, Nagpur. 2. The Assistant Registrar, Co-operative Societies, Bhandara. 3. The Bhandara Urban Cooperative Bank Limited, through its General Manager, Gandhi Chowk, Bhandara. 4. Special Recovery-cum Sales Officer, Bhandara Urban Cooperative Bank Limited Gandhi Chowk, Bhandara. 5. Vinod Krushnarao Deshpande, R/o Shantanu Vinod Deshpande, Plot NO. 125, Makode's House, Behind Mahavir Trader, Rani Padmawati Nagar, Near Manish Nagar, Nagpur. 6. Ram s/o Shankarao Patki, aged Major, Occupation Retired, C/o. 2 Naren Traders, Ambadi, Tq.Distt. Bhandara. 7. Sau. Ashwini Ashok Moundekar, aged Major, resident of Plot NO. 12, Bhende Lay Out, Datta Nagar, Nagpur. 8. Sau. Rajni Manohar Bhope, R/o. Plot NO. 9, Tirupati Layout, Seeta Nagar, Somalwada, Wardha Road, Nagpur. RESPONDENTS --------------------------------------------------------------------------------------------------------------- Shri P.D.Meghe, Advocate, for petitioners. Shri A.G.Mujumdar,AGP for respondent nos. 1 and 2 Smt. U.A.Patil, Advocate, for respondent No. 4 ------------------------------------------------------------------------------------------------------------- CORAM: R. K. DESHPANDE, J. DATE : 27 th SEPTEMBER, 2011. ORAL JUDGMENT 1] Rule made returnable forthwith. Heard Shri Meghe, the learned counsel for the petitioners and Smt. U.A.Patil, the learned counsel for Respondent No. 4. The learned AGP appears for respondent nos. 1 and 2. None appears for respondent nos. 3, 5 to 8. It is not necessary to issue fresh notices to the respondents who have not appeared before this court, for the reason that the contesting respondent is the respondent no.4 – The Recovery Officer who takes steps to issue the certificate on 14.08.2003, under Section 101 of the Maharashtra Cooperative Societies Act, 1960 (referred to as the “said Act” for short). 3 2] The petitioners are the legal heirs of one Shri Vasant Wakhare, who was the guarantor for the loan advanced to the borrowers. Since there were defaults in payment of loan amount, the proceedings under Section 101 of the said Act were instituted for grant of recovery certificate. On 6th March, 2003, notices were issued to the borrowers and the guarantor Shri Vasant Wakhare (since deceased), asking them to appear before the Assistant Registrar on 19.01.2003. The matter seems to have been taken on 19.03.2003 and the guarantor was shown to be absent and the matter was closed for issuance of certificate. Accordingly on 14.08.2003, the certificate under Section 101 of the said Act was issued for recovery of total amount of Rs.48,51,292/-. 3] The certificate dated 14.08.2003 was the subject matter of revision before the Divisional Joint Registrar bearing Revision No. 641/2007. In the said revision application, specific ground was raised that the guarantor expired on 16th May, 2003 and the legal heirs of the guarantor had no notice of the proceedings. The said revision has been decided on 26th February, 2010 by the Divisional Joint Registrar and the same is dismissed. Hence, this writ petition. 4 4] Relying upon the provisions of Section 101 of the said Act read with Rule 107 (23) of the Rules framed under the said Act, Shri Meghe, the learned counsel appearing for the petitioners has urged that the notice of the proceedings was required to be served upon the legal heirs of the deceased and the same was not issued. Hence, the certificate issued under Section 101 of the said Act was vitiated. It is his further submission that in the notice dated 6th March, 2003, the aforesaid guarantor was asked to appear on 19.01.2003 and hence the aforesaid guarantor had no notice of appearance on 19.03.2003, on which date the Assistant Registrar closed the matter for issuance of certificate. Undisputedly, on 19.03.2003, the deceased guarantor could not remain present as he had no knowledge of the date of hearing. He submits that all these grounds are not considered by the Divisional Joint Registrar in his order impugned in this petition. 5] Mrs. U.A. Patil, the learned counsel appearing for the Recovery Officer – Respondent No. 4, has pointed out that on earlier occasion the revision filed by the petitioners was allowed by the Divisional Joint Registrar against which the writ petition was preferred by the Bank. This court decided the said Writ Petition No. 3381/2009 on 20th November, 2009 and remanded the matter back 5 to the Divisional Joint Registrar to consider certain issues which were found to be not dealt with by the Divisional Joint Registrar in his order impugned in that writ petition. She submits that at that point of time the question of failure to provide the opportunity to the petitioners was not raised and hence, the petitioners should not now be permitted to raise the said point. 6] Without going into the merits of the controversy involved in this case, I am of the view that there was no notice of the proceedings under Section 101 of the said Act either to the deceased guarantor or to the legal heirs of the deceased who are the petitioners before this Court to appear on 19.03.2003. Undisputedly, on 19.03.2003 the Assistant Registrar closed the matter for issuance of certificate. Apart from this, there is no enquiry which has been conducted as contemplated by Section 101 of the said Act. There is also non compliance of Rule 107 (23) of the Rules framed thereunder. All these grounds although raised in the revision application, have not been considered by the Divisional Joint Registrar in the order impugned. Hence, the said order also cannot be sustained. The matter will have to be sent back to the Assistant Registrar by quashing and setting aside the orders passed by the authorities below. 6 7] The contention that the petitioners should not be permitted to raise the question of failure to provide them opportunity of being heard cannot be accepted for the reason that while remanding the matter back by this Court in Writ Petition No. 3381/2009, it was specifically made clear that all rival contentions raised by the parties are kept open for consideration by the said authority. In view of this, it was obligatory on the part of the Divisional Joint Registrar to have taken into consideration the specific ground raised in the revision application regarding failure to provide an opportunity to the petitioners in the proceedings under Section 101 of the said Act. 8] In the result, the writ petition is allowed. The certificate of recovery dated 14.08.2003 issued by the respondent no. 2 – Assistant Registrar, Cooperative Societies, Bhandara, is hereby quashed and set aside along with the orders dated 26.02.2010 passed in Revision No. 641/2007 by the Divisional Joint Registrar, Cooperative Societies, Nagpur. The matter is remitted back to the Assistant Registrar, Cooperative Societies, Bhandara, to decide the proceedings afresh in accordance with law. 7 Rule is made absolute in these terms. No orders as to costs. JUDGE Rvjalit