WP.1256-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 1256 OF 2011 Tharkurde Hotels Pvt. Ltd. & Ors. ...Petitioners Vs. The Rupee Cooperative Bank Ltd. & Ors. ...Respondents *** Mr. N. V. Walawalkar a/w D. S. Patil, for the Petitioner. Mr. Kishor V. Tembe, for Respondent No.1. *** CORAM: V. M. KANADE J. DATE : FEBRUARY 25, 2011 P.C. 1. The petitioners are aggrieved by the order passed by the Maharashtra State Appellate Court, Bombay, dated 31st December, 2010. 2. The brief facts are that the petitioners had filed a Dispute against the respondent Bank, claiming a refund of Rs. 8 Crores. Written- statement was filed by the respondent Bank in respect of the Dispute. On the other hand, the respondent Bank had filed a recovery proceeding under Section 101 of the Maharashtra Cooperative Societies Act in the year 2003. However, the said proceedings were withdrawn on 16-9-2009 WP.1256-11 - 2 - with liberty to take out appropriate proceedings and thereafter the Bank filed a Dispute in the Cooperative Court, claiming recovery of certain amounts from the petitioner herein. 3. It appears that applications were made by the respondent Bank on three different occasions for clubbing both the Disputes together. The Cooperative Court, however, dismissed the first application. Thereafter revision application was filed by the Bank and in the revision application, liberty was granted to them to file another application. Simultaneously, the petitioners herein also had filed the application, seeking stay of the Dispute, filed by the Bank. The Cooperative Court allowed the application of stay, filed by the petitioners herein and dismissed the application for clubbing the matters together. Being aggrieved by the said two orders, the two revision applications were filed before the Maharashtra State Cooperative Appellate Court. The Appellate Court heard the two revision applications together and by a common order dismissed the revision applications filed by the bank, challenging the order of clubbing the two Disputes. However, revision application No. 17 of 2010 was allowed and thereafter directed that both the Disputes should be heard together and disposed of by a common judgment. WP.1256-11 - 3 - 4. The learned counsel appearing on behalf of the petitioners has invited my attention to the impugned order and the finding recorded by the lower Appellate Court and submitted that the order is self- contradictory. He submitted that after having dismissed the application for clubbing the matters together in the operative part, the Cooperative Court has in fact directed that both the matters should be heard together in a time bound scheduled. 5. On the other hand, the learned counsel appearing on behalf of Respondent No.1 tried to justify the said orders by pointing out the reasons which were given by the trial Court, on the various applications which were filed by the respondent Bank for clubbing the disputes. He, therefore, submitted that liberty being granted by the Court to file subsequent applications, the bank was not prevented from filing those applications. He submitted that the lower Appellate Court was justified in clubbing the said matters in its final order. 6. In my view, perusal of the impugned order clearly reveals that on the one hand, the Appellate Court has rejected the application for clubbing the petitions together and dismissed the said revision application summarily and thereafter has proceeded to hear the application for stay, filed under Section 10 of the Code of Civil WP.1256-11 - 4 - Procedure and finally in the operative part of the order has observed as under- “1. The Revision Application No. 67 of 2010 is dismissed. 2. The Revision Application No.70/22010 is allowed. The impugned order passed on Exh. 27 in dispute No. 92/2010 on 11/11/2010 is hereby set aside and substituted with following order. 3. The present Dispute No. 92/2010 is consolidated with Dispute No. 254/2010, both disputes be heard together and dispose off by common order. 4. The Opponent in Dispute No. 92/2010 to file their written statement in case same is not filed, within next 21 days from the date of this order. After completed that stage both the parties to submit the draft issue within a week from the date of filing of written statement by the parties or last date fix for filing the written statement, then Ld. Judge to frame the issues within next one week. 5. After completing this stage, Ltd. Judge of the Lower Court is directed to expedite the hearing and dispose off both the disputes within 90 days from the date of framing of issues. WP.1256-11 - 5 - 6. The Advocate for the Revision applicant filed pursis in this Revision Application and submitted that, in case his prayer is allowed, he will not press Exh.5 in Dispute No. 92/2010. So Exh.5 in that dispute stand dismissed for want of prosecution. 7. The parties in the dispute are directed to appear before the Lower Court on 7/1/2011 and inform the Court the order passed by producing the operative part of the order of this Court.” 7. In my view, it is obvious that both these findings which are recorded by the lower Appellate Court cannot go together and the operative part of the order is contrary to the finding which is recorded by the Appellate Court in the earlier paragraph. In the interest of justice, therefore, in my view, it would be appropriate if the matter is remanded back to the lower Appellate Court after setting aside the impugned order and the lower Appellate Court is directed to decide both the revision applications on merits and in accordance with law, within a period of 4 weeks from today. All contentions raised by both the parties are kept open. Revision Applications shall be heard by another Member of the Maharashtra State Cooperative Appellate Court. 8. The trial Court shall not proceed to hear both the Disputes WP.1256-11 - 6 - for a period of 4 weeks. Both the parties shall appear before the Cooperative Appellate Court on 3rd March, 2011, before the President of the Appellate Court, who shall assign the matters, as directed above. . Parties to act on authenticated copy of this order. [ V. M. KANADE J.]