ssm sm sm 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 JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.2253 OF 2008 PETITION NO.2253 OF 2008 PETITION NO.2253 OF 2008 Saptashrungi Mahila Nagari Sahakari Patsanstha Ltd. ...Petitioner Vs. Mandabai Narayan Hire & Ors. ...Respondents. ALONGWITH ALONGWITH ALONGWITH WRIT WRIT WRIT PETITION NO.2010 OF 2008 PETITION NO.2010 OF 2008 PETITION NO.2010 OF 2008 Saptashrungi Mahila Nagari Sahakari Patsanstha Ltd. ...Petitioner Vs. Kasubai Dagaji Hire & Ors. ...Respondents. ALONGWITH ALONGWITH ALONGWITH WRIT WRIT WRIT PETITION NO.1748 OF 2008 PETITION NO.1748 OF 2008 PETITION NO.1748 OF 2008 Saptashrungi Mahila Nagari Sahakari Patsanstha Ltd. ...Petitioner Vs. Jijabai Keda Hire & Ors. ...Respondents. Mr.N.N.Bhadrashete for the Petitioner. Mr.H.S.Venegaonkar for Respondent No.2. CORAM CORAM CORAM : R.V.MORE, J. : R.V.MORE, J. : R.V.MORE, J. DATED DATED DATED : 28th July, 2008 : 28th July, 2008 : 28th July, 2008. P.C. P.C. P.C. ( 2 ) . The above Writ Petitions take exception to the common order passed by Co-operative Appellate Court, hence I propose to dispose of the same by this common order. 2. Heard Mr.Bhadrashete, the learned counsel for the Petitioner and Mr.Venegaonkar, the learned counsel for Respondent No.2. 3. The Petitioner is a Co-operative Credit Society registered under the Maharashtra Co-operative Societies Act-1960. The Respondent No.1 alleged to be a borrower and Respondent Nos.2 and 3 are alleged to be guarantor. The Petitioner filed the dispute Under Section 91 of the Maharashtra Co-operative Societies Act-1960 in the Co-operative Court at Nashik against the Respondents for recovery of the loan amount. It was the specific case of the Respondent No.1 that she neither applied for the loan nor executed any documents in favour of the Petitioner Credit society and the loan amount had not been paid to her. It was also specifically contended that the credit society shown bogus loan transaction in the name of Respondent No.1. In order to prove the case, the petitioner ( 3 ) examined in all three witnesses viz. P.W.1 Eknath Pawar, P.W.2 Bhikan Aher and P.W.3 Karbhari Pawar. P.W.1 Eknath Pawar was working as a clerk with the Petitioner Credit Society and was entrusted the work of recovery and postage. Bhikan Aher, P.W.2 is the Branch Manager of Credit Society. The Co-operative Court disbelieved P.W. 1 Eknath Pawar on the ground that he was at the relevant time working as a clerk and loan documents are prepared by the Manager by name Vinayak Aher. The Trial Court did not believe this witness on the ground that he made a statement in the cross-examination that the loan amount was disbursed to the Respondent No.1 in cash when in fact, the Petitioner’s case was that the loan amount was disbursed through cheque. So far as the P.W.2 Bhikan Aher is concerned, he was disbelieved on the ground that he admitted that there is a difference between the signatures of the Respondent No.1 in the loan documents and on the written statement. P.W.3 Karbhari Pawar, was a Branch Manager of N.D.C.C. Bank, Kalwan Branch and his evidence merely shows that the amount of Rs.10,000/- has been debited in the account of petitioner Society in the name of Respondent No.1. The Trial Court further observed that in this entry prior to the name of Respondent ( 4 ) No.1 the word ’To Cash’ are appearing which have been subsequently scrolled out. Therefore, suspicion was expressed about the entire transaction. The trial court has taken into consideration the entire evidence on the record and came to the conclusion that the Petitioner Credit society failed to prove that loan was disbursed to the Respondent No.1 and accordingly the Petitioners dispute was dismissed. 4. The Petitioner preferred an appeal before the Co-operative Appellate Court, however, the same was also dismissed by the order impugned in the petition. The alleged loan was given to the Respondent No.1 towards cash credit facility. Normally the cash credit limit is sanctioned on the basis of balance sheet of the business, as well as the repayment of capacity of the borrower. Surprisingly, the loan document does not discloses details about the Respondent Nos.1’s business. It is the case of the petitioner Society that loan was disbursed by cheque and in support thereof they produced the extract of account maintained by the N.D.C.C Bank, Kalwan Branch. The relevant entry in this regard shows that the amount of Rs.10,000/- was paid by the cash. This indicates that the cheque was given as self drawn ( 5 ) cheque and it was encashed. In the light of specific denial of the Respondent No.1 that she received any sum, the burden heavily lies upon the petitioner to prove that the loan was given to the Respondent No.1. The petitioner in these facts and circumstances could have either produced a cheque in question or at least counter folio. However, they neither produced cheque nor the counter folio in the trial court. 5. Taking over all circumstances into consideration, both the courts below concurrently held that alleged transaction is suspicious. After hearing the learned counsel appearing for the respective parties and after going through the orders passed by the lower courts below, I do not see any illegality or perversity in the approach adopted by the lower courts. The Petitions are devoid of any merits and no interference is called for in my jurisdiction under Article 227 of the Constitution of India. 6. In view of above, the Writ Petitions are dismissed. ( R. V. MORE, J.) R. V. MORE, J.) R. V. MORE, J.)