1 85 WP.7676.09 OTHERS ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7676 OF 2009 The Liquidator, The Ichalkaranji Urban Co­operative Bank Ltd. ... Petitioner Versus Aadrashe Silk Mill. ... Respondent WITH WRIT PETITION NO. 7687 OF 2009 The Liquidator, The Ichalkaranji Urban Co­operative Bank Ltd. ... Petitioner Versus Mhalasakant Mills. ... Respondent WITH WRIT PETITION NO. 7678 OF 2009 The Liquidator, The Ichalkaranji Urban Co­operative Bank Ltd. ... Petitioner Versus Kishor Shankar Aadrashe. ... Respondent WITH WRIT PETITION NO. 7679 OF 2009 The Liquidator, The Ichalkaranji Urban Co­operative Bank Ltd. ... Petitioner Versus Kishor Shankar Aadrashe. ... Respondent 2 85 WP.7676.09 OTHERS WITH WRIT PETITION NO. 7685 OF 2009 The Liquidator, The Ichalkaranji Urban Co­operative Bank Ltd. ... Petitioner Versus Kishor Shankar Aadrashe. ... Respondent WITH WRIT PETITION NO. 7686 OF 2009 The Liquidator, The Ichalkaranji Urban Co­operative Bank Ltd. ... Petitioner Versus Kishor Shankar Aadrashe. ... Respondent WITH WRIT PETITION NO. 7688 OF 2009 The Liquidator, The Ichalkaranji Urban Co­operative Bank Ltd. ... Petitioner Versus Aadrashe Weaving Works. ... Respondent AND WRIT PETITION NO. 7689 OF 2009 The Liquidator, The Ichalkaranji Urban Co­operative Bank Ltd. ... Petitioner Versus Rukmini Mills. ... Respondent ­­­­­ Mr. A.B.Borkar for the Petitioner. Mr. S.S.Patwardhan for the Respondent(s). ­­­­­ 3 85 WP.7676.09 OTHERS CORAM : A.S.OKA, J. DATE : 10 th October, 2011. P.C. 1 Heard the learned counsel appearing for the parties. 2 On 17 th September, 2009, this Court issued notice for final disposal at admission stage. 3 The factual matrix in these petitions is more or less identical and therefore, for the sake of convenience, a reference is made only to the facts of the case in the Writ Petition No.7676 of 2009 4 The Petitioner – Bank filed a dispute under Section 91 of the Maharashtra Co­operative Societies Act, 1960 (hereinafter referred to as “the said Act”) against the Respondent and others for recovery of a sum of Rs.5,24,451/­ being the amount due and payable by the Respondent and others. The recovery was sought of the amount advanced by the Petitioner – Bank to the Respondent – herein. 5 An application was filed by the Respondent under Rule 6 4 85 WP.7676.09 OTHERS of Order XII of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”) . In the said application, it is contented that an application was made by the Petitioner for one time settlement. It is stated in the application that by a communication dated 28 th August, 2007, the Petitioner informed the Respondent that the request for one time settlement was accepted by the Board of Directors, but the Respondent will have to deposit a sum of Rs.2,71,068/­. It is contended that as per the terms of one time settlement scheme issued on 18 th April, 2006, the amount payable by the Respondent is only in the sum of Rs.1,79,847/­. A prayer was made for passing a decree on admission in the sum of Rs.1,79,847/­. The said application was opposed by the Petitioner – Bank by filing a reply. By the order dated 5 th November, 2008, the Co­operative Court rejected the application, but permitted the Respondent to deposit the amount which according to the Respondent was the admitted amount without prejudice to the rights and contentions of both the parties. A revision application was preferred by the Respondent against the said order before the Co­ 5 85 WP.7676.09 OTHERS operative Appellate Court. By the impugned order, the revision application has been allowed. The operative part of the impugned order reads thus: “ORDER 1] Revision is allowed without cost. 2] The application dt 26/12/2007 in dispute No. 672/2005 is allowed without cost. 3] Ld. trial court is directed to pass an executable decree in terms of admission amount mentioned in the written statement.” 6 The submission of the learned counsel appearing for the Petitioner is that a sum of Rs.1,79,847/­ is not an admitted amount even assuming that one time settlement scheme is applicable. He submitted that the order directing the Co­operative Court to pass an executable decree is completely illegal. 7 The learned counsel appearing for the Respondent invited attention of the Court to the prayer made in the application filed by the Respondent before the Co­operative Court. He submitted that in the 6 85 WP.7676.09 OTHERS application, it is specifically contented that the Respondent was admitting his liability to the extent of Rs.1,79,847/­ and to that extent, a decree on admission may be passed. He submitted that the result of the impugned order is that there will be a partial decree in the said amount and the dispute filed by the Petitioner remains pending to the extent of the balance claim made in the dispute. He submitted that there is no prejudice by the impugned order to the Petitioner and on the other hand, the Respondent will get benefits under the Income Tax Act, 1961. 8 I have carefully considered the submissions. In the application on which the order was passed by the Co­operative Court, the contention of the Respondent was that under the one time settlement scheme, the Respondent was liable to pay only a sum of Rs.1,79,847/­ to the Petitioner. Paragraph No.2 of the application itself notes that according to the Petitioner, as per the one time settlement scheme, the Respondent was liable to pay a sum of Rs.2,71,068/­. Thus, the application itself discloses that there was a serious dispute 7 85 WP.7676.09 OTHERS between the parties as regards the quantum of the amount payable under the one time settlement scheme. The application itself discloses that the Respondent did not deposit the requisite amount as demanded by the Petitioner for the purpose of availing the benefits under the one time settlement scheme. Thus, there is a serious dispute between the parties as regards the amount payable by the Respondent under the one time settlement scheme. That is why without passing a decree on admission, the learned Judge of the Co­ operative Court permitted the Respondent to deposit the amount, which according to the Respondent was an admitted amount. 9 Assuming that Rule 6 of Order 12 of the said Code was applicable to a dispute under Section 91 of the said Act before the Co­ operative Court, the power under the said provision is always discretionary. In the present case, the Respondent has not admitted the entire claim of the Petitioner in the pending dispute. According to the Respondent, under the one time settlement scheme, he was liable to pay only an amount of Rs.1,79,847/­. Perusal of the application 8 85 WP.7676.09 OTHERS made by the Respondent and the prayer clause therein shows that the admission of the Respondent is only to the extent that according to the Respondent, a sum of Rs.1,79,847/­ was payable by the Respondent under the one time settlement scheme. But, the application made by the Respondent itself discloses that according to the Petitioner, a sum of Rs.2,71,068/­ was payable by the Respondent under the said scheme. There was no admission by the Respondent accepting that the amount of Rs.2,71,068/­ was payable. There was no admission on the part of the Respondent of the claim made by the Petitioner in the dispute under Section 91 of the said Act. On the contrary, there was a dispute between the parties as regards the amount payable by the Respondent under the one time settlement scheme. In fact the case of the Petitioner is that as the Respondent did not deposit the requisite amount, the Respondent is not entitled to the benefit of the one time settlement scheme. In the circumstances, on plain reading of the application filed by the Petitioner, this was not a fit case where Rule 6 of Order 12 of the said Code could have been invoked. 9 85 WP.7676.09 OTHERS 10 The impugned judgment of the Co­operative Appellate Court proceeds on the footing that part of the claim in the dispute was admitted by the Respondent. It will be necessary to make a reference to the reasons recorded by the Appellate Court. The Appellate Court has observed thus: “The Ld. trial court appears to have accepted in principle the necessity of passing decree on admitted claim but it did not reflect his contention in the final order by which application for passing the executable decree is rejected. However, permission is granted to deposit the admitted sum. It appears that the Ld. trial court was of a view that, a single decree in a suit may be passed however, things are however otherwise different. There may be as many as decrees, which could be passed during the pendency suit of the suit on such admitted claims. Passing executable decree without any scope for interpretation shall be endeavor of the trial court. Merely granting of permission to deposit amount admitted will not be sufficient. In view of this situation 'word may' appearing in Rule 12 R O 6 of CPC shall be understood to pass executable decree, when defendant or (respondent herein) himself is ready to abide the decree to be passed on admission. There was no impediment to pass such decree on admission. Thus, discretion exercised by Ld. trial court is improper.” 11 According to me, the Appellate Court has completely 10 85 WP.7676.09 OTHERS misread the order of the trial Court. In paragraph Nos.3 and 4 of the order of the trial Court, it is held thus: 3. After careful perusal of this application of the opponent No.1 and reply of the disputant Bank, it is clearly seen the Bank has accepted the proposal of the O.T.S. Scheme given by the opponent No.1 as suggested by the Commissioner for Co­operation and Registrar, C.S.Maharashtra State Pune and accordingly the Bank has directed to him to pay certain amount to comply the O.T.S. Scheme. However, the opponent No. 1 did not pay the amount as directed by the Bank and committed himself the breach of condition of the O.T.S. Scheme.. 4. Therefore, he is not not entitled to claim any benefit of the O.T.S. Scheme to satisfy the dues in dispute. Further the opponent has submitted certain authorities of our own Honourable High Court. With due respect of these authorities I think these authorities are not helpful in this matter.” (underline supplied) 12 This, the specific finding of the Co­operative Court is that the Respondent did not pay the requisite amount as directed by the Petitioner for availing the benefits of the one time settlement scheme and that the Respondent was not entitled to avail the benefit of one time settlement scheme. The Co­operative Court without passing a decree on admission, permitted the Petitioner to deposit the amount 11 85 WP.7676.09 OTHERS which was due and payable as per the case of the Respondent. 13 Hence, the impugned orders of the Co­operative Appellate Court deserve to be quashed and set aside being completely illegal. 14 Hence, I pass the following order: i. The impugned judgments and orders of the Co­ operative Appellate Court are quashed and set aside and the judgments and orders of the Co­ operative Court are restored ; ii. All contentions of the parties on merits of the pending dispute as also on the merits of the controversy regarding the amount payable under the one time settlement scheme are expressly kept open ; and iii. The writ petitions are allowed on above terms. [ A.S.OKA, J ]