1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.432 OF 2008 NO.432 OF 2008 NO.432 OF 2008 Embassy Embassy Embassy Centre Centre Centre Coop Society Ltd.. Petitioner Coop Society Ltd.. Petitioner Coop Society Ltd.. Petitioner Mumbai. Mumbai. Mumbai. vs vs vs M/s M/s M/s Ghanshyamdas Ghanshyamdas Ghanshyamdas & Co Mumbai. & Co Mumbai. & Co Mumbai. Respondents Respondents Respondents Mr.C.P.Deogirikar Mr.C.P.Deogirikar Mr.C.P.Deogirikar for for for Petitioner Petitioner Petitioner Mr.Y.T.John Mr.Y.T.John Mr.Y.T.John for Respondents for Respondents for Respondents CORAM CORAM CORAM : : : S.C.Dharmadhikari, J S.C.Dharmadhikari, J S.C.Dharmadhikari, J DATED DATED DATED : : : 7th February, 2008 7th February, 2008 7th February, 2008 P.C. P.C. P.C. 1.1.1. The Writ Petition is by the Cooperative society The Writ Petition is by the Cooperative society The Writ Petition is by the Cooperative society who who who is aggrieved and disatisfied with the judgment is aggrieved and disatisfied with the judgment is aggrieved and disatisfied with the judgment and and and order dated 17th October, 2006 in Appeal No.39 order dated 17th October, 2006 in Appeal No.39 order dated 17th October, 2006 in Appeal No.39 of of of 2006. 2006. 2006. 2.2.2. The Maharashtra State Cooperative Court allowed The Maharashtra State Cooperative Court allowed The Maharashtra State Cooperative Court allowed the the the appeal and quashed and set aside the judgment appeal and quashed and set aside the judgment appeal and quashed and set aside the judgment and and and order order order dated 27th January, 2006 which was passed dated 27th January, 2006 which was passed dated 27th January, 2006 which was passed by by by the the the Cooperative Court in a dispute instituted by Cooperative Court in a dispute instituted by Cooperative Court in a dispute instituted by the the the petitioner-society to recover a sum of petitioner-society to recover a sum of petitioner-society to recover a sum of Rs.56,188/- Rs.56,188/- Rs.56,188/- together with 18 % from the date till together with 18 % from the date till together with 18 % from the date till realisation. realisation. realisation. 3.3.3. The Cooperative Court has noted that the The Cooperative Court has noted that the The Cooperative Court has noted that the society society society earlier filed a dispute for recovery of earlier filed a dispute for recovery of earlier filed a dispute for recovery of Rs.72,364/- Rs.72,364/- Rs.72,364/- and thereafter amended the same on 1st and thereafter amended the same on 1st and thereafter amended the same on 1st July, July, July, 2002 2002 2002 and restricted its claim to Rs.56,188/-. and restricted its claim to Rs.56,188/-. and restricted its claim to Rs.56,188/-. Thus, Thus, Thus, the original claim of 1985 stood reduced to the original claim of 1985 stood reduced to the original claim of 1985 stood reduced to this this this figure. figure. figure. The Cooperative Court has referred to The Cooperative Court has referred to The Cooperative Court has referred to the the the admitted admitted admitted facts on record. It has also referred facts on record. It has also referred facts on record. It has also referred 2 toto to the rival contentions, pleadings and issues the rival contentions, pleadings and issues the rival contentions, pleadings and issues framed framed framed before the trial Court. After framing before the trial Court. After framing before the trial Court. After framing necessary necessary necessary points for determination, the lower points for determination, the lower points for determination, the lower appellate appellate appellate Court has referred to the statement of Court has referred to the statement of Court has referred to the statement of account account account produced by the petitioner-society. The produced by the petitioner-society. The produced by the petitioner-society. The discussion discussion discussion with regard to the same is to be found with regard to the same is to be found with regard to the same is to be found atatat internal page nos. 10 to 13 of the judgment of internal page nos. 10 to 13 of the judgment of internal page nos. 10 to 13 of the judgment of the the the lower appellate Court. The revised statement lower appellate Court. The revised statement lower appellate Court. The revised statement which which which has has has been reflecting the figure of Rs.27,900/- been reflecting the figure of Rs.27,900/- been reflecting the figure of Rs.27,900/- atatat the end of November, 1981 has been referred to the end of November, 1981 has been referred to the end of November, 1981 has been referred to and and and the said figure has not been mentioned as the said figure has not been mentioned as the said figure has not been mentioned as arrears. arrears. arrears. The dispute is between May 1981 to The dispute is between May 1981 to The dispute is between May 1981 to November, November, November, 1981. Nowhere the fact is mentioned in 1981. Nowhere the fact is mentioned in 1981. Nowhere the fact is mentioned in the the the dispute dispute dispute as to how amount of Rs.56,188/- becomes as to how amount of Rs.56,188/- becomes as to how amount of Rs.56,188/- becomes due due due and and and payable towards the outgoings. The revised payable towards the outgoings. The revised payable towards the outgoings. The revised statement statement statement is from May 1981 to August, 1985. The is from May 1981 to August, 1985. The is from May 1981 to August, 1985. The learned learned learned President has referred to the said President has referred to the said President has referred to the said statement statement statement and entries therein in great details and entries therein in great details and entries therein in great details together together together with documentary evidence. The with documentary evidence. The with documentary evidence. The documentary documentary documentary evidence being what it is, the oral evidence being what it is, the oral evidence being what it is, the oral evidence evidence evidence contains a clear admission on behalf of contains a clear admission on behalf of contains a clear admission on behalf of the the the witness in the dispute, that "after witness in the dispute, that "after witness in the dispute, that "after registration registration registration of the society, the respondent before of the society, the respondent before of the society, the respondent before me me me is paying monthly outgoings regularly." He is a is paying monthly outgoings regularly." He is a is paying monthly outgoings regularly." He is a witness witness witness who who who admits that in the dispute, the society admits that in the dispute, the society admits that in the dispute, the society has has has claimed dues prior to registration of the claimed dues prior to registration of the claimed dues prior to registration of the society. society. society. In such circumstances, I do not find that In such circumstances, I do not find that In such circumstances, I do not find that there there there is is is any error committed by the lower appellate any error committed by the lower appellate any error committed by the lower appellate Court Court Court which which which is a Court of facts and law. The lower is a Court of facts and law. The lower is a Court of facts and law. The lower appellate appellate appellate Court Court Court has re-appraised and re-appreciated has re-appraised and re-appreciated has re-appraised and re-appreciated the the the materials on record and performed its duty of materials on record and performed its duty of materials on record and performed its duty of first first first appellate Court. This is not a Court of appellate Court. This is not a Court of appellate Court. This is not a Court of 3 further further further appeal. In my view, there is no substance appeal. In my view, there is no substance appeal. In my view, there is no substance inin in the contention that the lower appellate court the contention that the lower appellate court the contention that the lower appellate court was was was in in in error in reversing the judgment of the trial error in reversing the judgment of the trial error in reversing the judgment of the trial Court. Court. Court. The trial Court has not referred to any of The trial Court has not referred to any of The trial Court has not referred to any of these these these depositiions depositiions depositiions in detail nor has it referred to in detail nor has it referred to in detail nor has it referred to the the the statement of accounts. During this period, statement of accounts. During this period, statement of accounts. During this period, some some some letters have been addressed to and receipt of letters have been addressed to and receipt of letters have been addressed to and receipt of which which which is not disputed. However, that by itself is is not disputed. However, that by itself is is not disputed. However, that by itself is no no no ground to question the appellate Judgment. ground to question the appellate Judgment. ground to question the appellate Judgment. Writ Writ Writ Petition is therefore, summarily dismissed. Petition is therefore, summarily dismissed. Petition is therefore, summarily dismissed. (S.C.Dharmadhikari, (S.C.Dharmadhikari, (S.C.Dharmadhikari, J) J) J)