1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. CHAMBER SUMMONS NO.1237 OF 2009 IN EXECUTION APPLICATION NO.303 OF 1997 IN RECOVERY CERTIFICATE NO.960 OF 1994 The Kapol Co-op. Bank Ltd. ..Applicant Vs. Bhalchandra Enterprises and others ..Respondents. and Ashit S. Bhansali ..Applicant. .... Mr. K.M. Sangani for the Disputant Bank. Mr. Raghavan Shetty i/b Thodur Law Associates for the Applicant and Respondent Nos.1 2, 3 and 6. .... CORAM : DR. D.Y. CHANDRACHUD, J. 1st October, 2009. P.C. : 1. The Chamber Summons has been taken out for raising a warrant of attachment issued on 30th December, 1997 under Order 21 Rules 43 and 54 of the Code of Civil Procedure 1908. 2. The Original Applicant, Kapol Co-op. Bank Limited, had filed proceedings under Section 101 of the Maharashtra Co-operative Societies 2 Act, 1960 for the recovery of its dues. A recovery certificate was issued by the Assistant Registrar, Co-operative Societies on 21st February, 1995. The Bank filed an Execution Application before this Court in which a warrant of attachment was issued on 30th December, 1997, in respect of certain residential premises. The Bank had in the meantime taken out a notice (Notice 1327 of 1998) in the Execution Application. By an order dated 28th February, 2007, a Learned Single Judge, while making the notice absolute directed that Respondent No.3 (the Applicant to the Chamber Summons) shall be taken into custody and that a warrant of arrest shall issue against the Fourth Respondent. The Applicant to the Chamber Summons and the aforesaid Fourth Respondent were directed to suffer imprisonment for a period of three months. An appeal was filed by the Applicant against the order of the Learned Single Judge which was allowed by a Division Bench of this Court on 4th April, 2007. The Division Bench held that in view of the judgment in Appeal 136 of 2007 in Notice of Motion 1567 of 2005 in Execution Application No.471 of 20041 the Civil Court had no jurisdiction to entertain execution proceedings in respect of a recovery certificate issued under Section 101 of the 1 Sadguru Construction Company v. Greater Bombay Co-operative Bank Limited. 3 Maharashtra Co-operative Societies Act, 1960. 3. In Sadguru Construction (supra), the Division Bench had held as follows : “The provisions of law comprised under Section 156 of the said Act r/w. Rule 107 of the said Rules therefore clearly provide that when any recovery certificate is issued under Section 101 of the said Act, the execution or the actual recovery of the amount in terms of such certificate has to be in the manner prescribed under the rules framed by the State Government under the said Act and in fact the Government has framed rules in that regard, and not under any other provision, nor by the authority other than the one specified under the said Act and the said Rules. The provision of Rule 107 of the said Rules clearly incorporate the detailed procedure for execution of such recovery certificate. Section 163 of the said Act clearly provides that save as expressly provided under the said Act, no Civil or Revenue Court shall have any jurisdiction in respect of any dispute required to be referred to the Co-operative Court, for decision, and all orders, decisions or awards passed in accordance with the said Act or the rules made thereunder shall be final and not liable to be challenged or set aside or modified or revised or declared void by any Court upon the merits or upon any other ground whatsoever. It is settled law that the execution proceeding is continuation of a suit. Once it is clear that no suit is maintainable for settling dispute which could be referred to the decision of the Co-operative Court, and further the provisions of law comprised under Section 101 r/w. Section 156 clearly provide that recovery certificate issued thereunder is executable in terms of the provisions of law comprised under Section 156 and the rules made in that regard by the Government, and the Government having made rule in that respect being Rule 4 107 of the said Rules, it would not be open for the parties to adopt a mode different than the one specifically, provided under the said Act r/w the said Rules. Once the statutory provisions specifically provide the mode for execution of a recovery certificate and to recover the dues in terms of such certificate, then it is not open for the parties to choose a totally different mode and ignore the mandate of Section 163 of the said Act. The jurisdiction of the Civil Court clearly stands ousted in that regard.” 4. The judgment of the Division Bench dated 4th April, 2007 was carried in appeal to the Supreme Court. By an order dated 21st September, 2007 the Special Leave Petition was dismissed. 5. On behalf of the Applicant it has been submitted that in view of the judgment of the Division Bench in Sadguru Construction (supra), which was followed inter partes in the judgment of the Division Bench dated 4th April, 2007, the warrant of attachment would have to be lifted. 6. There is merit in the submission which has been urged on behalf of the Applicant in support of the Chamber Summons. The position in law which is settled by the judgment of the Division Bench in Sadguru Construction (supra) is that the Maharashtra Co-operative Societies Act, 5 1960 provides specific modes for the recovery of monies due under a recovery certificate issued under Section 101 and recourse to the Civil Court would be barred. The judgment in Sadguru Construction has been followed in a proceeding inter partes which culminated in a judgment of the Division Bench dated 4th April, 2007. In that view of the matter, the issuance of a warrant of attachment by taking recourse to proceedings in execution before this Court under the Code of Civil Procedure, 1908 was not lawful. 7. However, Counsel appearing for the Bank sought to contend that apart from the recovery certificate that was issued on 21st February, 1995 the Assistant Registrar of Co-operative Societies had also issued a recovery certificate under Section 98(a) and that could be executed as a decree of the Civil Court. 8. Section 98 provides as follows : “98. Money how recovered – Every order passed by the Official Assignee of a de-registered society under sub-section (3) of section 21-A or every order passed by the Registrar or a person authorised by him under Section 88 or by the Registrar or the Co-operative 6 Court under Section 95 or by the Co-operative Court under section 96, every order passed in appeal under the last preceding section, every order passed by a Liquidator under section 105, every order passed by the State Government in appeal against orders passed under section 105 and every order passed in revision under section 154 shall, if not carried out ; (a) on a certificate signed by the Official Assignee or the Registrar or the Co-operative Court or a Liquidator, be deemed to be a decree or a Civil Court, and shall be executed in the same manner as a decree of such Court, or (b) be executed according to the law and under the rules for the time being in force for the recovery of arrears of land revenue. Provided that, any application for the recovery in such manner of any such sum shall be made by the Collector, and shall be accompanied by a certificate signed by the Registrar. Such Application shall be made within twelve years from the date fixed in the order and if no such date is fixed, from the date of the order.” 9. Now even a bare reading of the statutory provision would indicate that it is only certain orders of the nature falling in the description contained in the provision that are deemed to be decrees of a Civil Court. These orders are (i) an order passed by the Official Assignee of a de registered society under Section 21-A(3); (ii) an order passed by the Registrar or a person authorized by him under Section 88; (iii) an order passed by the Registrar or by the Co-operative Court under Section 95; 7 (iv) an order passed by the Co-operative Court under Section 96; (v) every order passed in an appeal under Section 96; (vi) every order passed by the Liquidator under Section 105; (vii) every order passed by the State Government in appeal against orders passed under Section 105 and (viii) every order passed in revision under Section 154. In the present case, the recovery certificate that was issued under Section 101 of the Maharashtra Co-operative Societies Act, 1960 does not fall within the description of any of these categories. The Division Bench of this Court held by its judgment dated 21st April, 2007 that the same principles which have been laid down in Satguru Construction would apply to this case. 10. In the circumstances, the issuance of the warrant of attachment was misconceived. The attachment would have to be raised. The Chamber Summons is made absolute in terms of prayer clause (a). However, at the same time, this Court cannot be unmindful of the fact that a recovery certificate has been issued in favour of the Bank under Section 101. The Bank would, undoubtedly, have to be relegated to its remedies in execution under the appropriate provisions of law. In order 8 to enable the Bank to have some reasonable period to do so, there shall be a direction to the effect that the raising of the warrant of attachment shall take effect from 1st December, 2009. *****