1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.1023 OF 2009 S.G.P. Barnes ..Petitioner. Vs. The Chief Secretary, Government of Maharashtra and others ..Respondents. .... Mr. S.U. Kamdar, Senior Advocate – amicus curiae present. Ms S.G.P. Barnes – Petitioner in person. Ms Uma Palsule Desai, AGP for Respondents 1 to 4. Mr. S.R. Sharma – Chairman of Respondent No.6 society present in person. ..... CORAM: DR. D.Y. CHANDRACHUD, J. 14th December, 2009. P.C. : 1. These proceedings have a checkered history. The Petitioner appears in person. The contesting Respondent viz. the Sixth Respondent to these proceedings who represents the co- operative society concerned in the dispute also appears in person. This Court had appointed Shri S.U. Kamdar as amicus curiae on 15th April, 2009. During the course of the morning session arguments 2 were heard in the Writ Petition and orders were to be dictated immediately after the lunch recess. When the Court reassembled, the amicus informed the Court that in the meantime the Petitioner had objected to some of the submissions which he had urged and that he does not desire to continue any further in the proceedings. The amicus has assisted the Court fairly and objectively. However, in terms of the request made before the Court he is permitted to be discharged. Both the Petitioner and the Sixth Respondent have stated that they wish to argue their cases in person and accordingly they have been permitted to urge their submissions. The AGP has appeared on behalf of Respondents 1 to 4. 2. The Petitioner is an allottee of a tenement in Flat No.2 of Building No.12, Post and Telegraph Employees Kranti Society at Andheri (West). The co-operative society instituted proceedings under Section 91 of the Maharashtra Co-operative Societies Act, 1960 for the recovery of arrears of maintenance charges (Application CC/ IV/106/1999). The Petitioner was refused leave to defend the 3 application. In appeal, the Co-operative Appellate Court by its order dated 12th September, 2003 granted to the Petitioner leave to defend subject to the deposit of an amount of Rs.10,000/- which the Court is informed has been deposited. The application was, however, dismissed in default on 24th April, 2002. 3. The Petitioner has also filed a substantive application before the Co-operative Court which is registered as Dispute No.223 of 2008. Various reliefs have been sought by the Petitioner therein including the carrying out of repairs. The co-operative society instituted a recovery proceeding under Section 101. A recovery certificate was issued therein against which the Petitioner has taken the matter in revision. The revision application has been dismissed by the impugned order of the Divisional Joint Registrar dated 3rd July, 2008 for non-compliance of Section 154(2-A) of the Maharashtra Co- operative Societies Act, 1960. 4. The grievance of the Petitioner is that since the co-operative 4 society had filed a substantive proceeding under Section 91 before the Co-operative Court for the recovery of its dues, it was not open to it thereafter to take recourse to the summary remedy under Section 101 for the recovery of its dues. The Petitioner submitted while arguing the case in person that she has no objection to the application under Section 91 being restored to the file by this Court with her consent and as a matter of fact, she had also moved a similar application which was dismissed by the Co-operative Court. 5. On the other hand, the grievance of the co-operative society is that the Petitioner is not paying any amount whatsoever towards the maintenance charges. 6. Having heard the submissions that were urged before the Court, it is evident that the co-operative society having instituted substantive proceedings under Section 91 of the Maharashtra Co- operative Societies Act, 1960 for the recovery of its dues, it was most inappropriate on its part to institute proceedings of a summary nature 5 in respect of the same cause of action under Section 101. The proceedings under Section 91 were dismissed on 24th April, 2002 in default of appearance. This aspect of the matter can be taken care of since as noted above the Petitioner has furnished her consent to the restoration of those proceedings. In the meantime, the Petitioner has stated that she is ready and willing to deposit the amount of Rs. 25,000/- initially towards the arrears of maintenance charges. In the event that the society has an outstanding balance due and payable, it would be open to the co-operative society to move an application before the Co-operative Court for an interim order of deposit in the meantime, pending the final disposal of the proceedings. In view of the fact that the main proceeding under Section 91 is to be restored, the Sixth Respondent has stated before the Court that he would withdraw the proceedings under Section 101. 7. In the circumstances, the following order is passed : i) The dispute filed by the Co-operative Society for the recovery of its dues under Section 91 of the Maharashtra Co-operative 6 Societies Act, 1960 viz. CC/IV/106/1999 is by consent restored to file; ii) In view of the restoration of the aforesaid case to file, the recovery proceedings instituted by the co-operative society under Section 101 is in terms of the request made before the Court, dismissed as withdrawn; iii)The Petitioner shall within a period of one week from today deposit before the Co-operative Court an amount of Rs.25,000/- towards arrears of maintenance dues; iv)The co-operative society would be at liberty to file an application before the Co-operative Court for the deposit of the balance of the amount and for the withdrawal of the amount which has been deposited by the Petitioner. In the event that such an application is made, the Co-operative Court will expeditiously deal with and dispose of the application. Since the aforesaid order would govern the scope of the controversy that has emerged before the Court during the course of 7 the oral submissions, the Petition shall stand disposed of with the aforesaid terms. No other point has been urged on either side. There shall be no order as to costs. *****