WP 658/10 1 SSK/6 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.658 OF 2010 M/s. Vinayak Enterprises Through it’s Proprietor, Gavisiddapa Shivappa Rajur ....Petitioner Versus The Veerashaiva Co-op. Bank & Ors. ...Respondents Mr. Dinesh Bhosale, Advocate for the Petitioner. Mr. M. G.Patil i/b. Mr. N. N. Bhadrashete for Respondent No.1. Mrs. S. S. Bhende, AGP for Respondent Nos. 5 to 7. CORAM : R. V. MORE, J. DATED : 27th AUGUST, 2010. P.C.: Heard learned Counsel for the respective parties. 2. Rule. Rule is made returnable forthwith and by consent, the petition is taken up for hearing as short point is involved. 3. At the outset, Mr. Bhosale, learned Counsel for the Petitioner makes a statement that Respondent Nos. 2, 3 and 4 are the Guarantors to the loan obtained by the Petitioner from Respondent No.1 and therefore, their presence may not be necessary for disposal of the present petition. WP 658/10 2 SSK/6 He seeks leave to delete the names of these Respondents. Leave is granted at his own risk. The names of Respondent Nos.2, 3 & 4 be deleted. Necessary amendment to be carried out forthwith. 4. The petition takes exception to the order passed by Respondent No.5 on 10th August, 2009 thereby granting certificate under section 101 of the Maharashtra Co-operative Societies Act, 1960 in favour of Respondent No.1, and against Petitioner and Respondent Nos.2, 3 & 4. This order is challenged by way filing the aforesaid writ petition mainly on the ground that opportunity of hearing was not given to the Petitioner. Mr. Bhosale, learned Counsel for the Petitioner submits that the Petitioner is a Proprietor of firm by name M/s.Vinayak Enterprises and stays at the address given in the cause title of the petition. He submitted that notice of the proceedings initiated by Respondent No.1 was never served upon the Petitioner and therefore, the Petitioner could not participate in the proceedings and consequently the impugned order is passed granting certificate under section 101 of the M.C.S.Act for an amount of Rs.1,47,84,882/-. Mr. Patil, learned Counsel for Respondent No.1, on the contrary, supported the impugned order. He submitted that the notice of the proceedings under section 101 of the M.C.S.Act was sent to the Petitioner at the address mentioned in the cause title of the petition. However, the notice was returned back with endorsement “Petitioner is residing at the address” and WP 658/10 3 SSK/6 thereafter, the Respondent No.5 chose to proceed ex-parte against the Petitioner. He further submitted that Respondent Nos. 2 to 4 participated in entire proceedings and therefore, no interference is called for. 5. I have heard learned Counsel for the respective parties. I have also gone through the impugned order. Mr. Bhosale, learned Counsel for the Petitioner also tenders a copy of acknowledgment issued by the postal authorities. It is clear from the acknowledgment that notice was sent to the Petitioner at address mentioned in the cause title of the petition. The postal endorsement further shows that notice was returned back unserved with the remark “The Petitioner is not residing at the address mentioned on the packet”. It is not disputed that the Petitioner is residing at the address mentioned in the cause title of the petition, inspite of that, the letter was returned unserved with the aforesaid remark. Therefore, in my view, the service cannot be said to be proper. The Petitioner for want of notice could not participate in the proceedings initiated by Respondent No.1. The Respondent No.5 also failed to verify whether the Petitioner is served properly or not, before proceeding on merits. In these facts and circumstances, it is clear that the impugned order is passed in violation of principles of natural justice. In the present case, though the Petitioner has an alternative remedy of revision under section 154(2) of the M.C.S.Act, in my view, this writ petition can be entertained in the above circumstances, WP 658/10 4 SSK/6 as it is found that the impugned order is passed ex-parte without hearing the Petitioner. On this limited ground, I am of the opinion that the impugned order deserves to be quashed and set-aside, and the matter be remanded back to Respondent No.5. The petition, is therefore, disposed of by passing the following order: 1. The impugned order is quashed and set-aside. The matter is remanded back to Respondent No.5 for fresh disposal in accordance with law after granting an opportunity of hearing to the Petitioner. 2. The Respondent No.5 shall dispose of the said proceedings independently on its own merits, and as expeditiously as possible and preferably within a period of four months from the date of receipt of this order. (R. V. MORE, J.)