1. Rule. Rule made returnable forthwith. Counsel for the respondent waives notice. As short question is involved, petition is taken up for final disposal forthwith, by consent.

2. Heard learned counsel at length.

3. By this petition filed under Article 227 of the Constitution of India, the Petitioner has assailed the legality and propriety of the order dated 2nd August 2013 passed by the Maharashtra State Co-operative Appellate Court at Mumbai [for short “the Appellate Court”] in Appeal No. 113 of 2012. By the said order, the Appellate Court allowed the Respondent's appeal and order of the trial Court under which Respondent's dispute was dismissed in default came to be quashed and set aside.

4. The Respondent filed dispute against the Petitioner under section 91 of the Maharashtra Co-operative Societies Act, 1960 [for short “the MCS Act”] before 4th Cooperative Court, Ballard Pier, Mumbai for declaration that loan alleged to be sanctioned under Loan Account No. BL/12, S/B 34, L/138 and L/185 are null and void and are not binding upon him and the Petitioners are not entitled to recover loan amounts shown in the said accounts. The declaration was also sought to the effect that the Petitioner is not entitled to recover the loan amount granted under the Loan Account No. L/184, as the same has already been repaid by him. The Respondent also sought consequential reliefs. On 2nd November 2012, the Co-operative Court dismissed the dispute in default in view of the continuous absence of the Respondent. The Respondent thereafter preferred abovesaid appeal before the Appellate Court which came to be allowed by the order impugned in this petition.

5. Before the Appellate Court, the Petitioner raised preliminary objection regarding the maintainability of appeal filed by the Respondent in view of provisions of section 94 of the MCS Act. The learned Appellate Court, however, overruled the Petitioner's objection on the ground that the Respondent's appeal is maintainable under section 97 of the MCS Act and therefore proceeded to hear the appeal on merits and ultimately restored the dispute.

6. The short question which falls for consideration before this Court is whether the Respondent's appeal under section 97 of the MCS Act against the order of the Cooperative Court passed under section 94 is maintainable. After considering the submissions of learned Counsel and after going through the order impugned along with the relevant provisions of the MCS Act, my answer is in the negative.

7. Section 94 of the MCS Act deals with the procedure for settlement of disputes and power of the Co-operative Court. Under sub-section (3A) thereof, if the disputant is present and opponent is absent when the dispute is called out for hearing, the Cooperative Court may decide the suit ex-parte and pass an award. The Co-operative Court may set aside the said ex-parte award subject to costs if the opponent makes an application within 30 days from the date of award and satisfies the Court that there was sufficient cause for his failure to appear when the dispute was called out for hearing. Sub-section (3B) was introduced on 14th February 2013 which reads thus :

“(3B) If the opponent is present and the disputant is absent, when the matter is called out for hearing, the Co-operative Court may dismiss the dispute for default, and pass an award accordingly. The Co-operative Court may restore the dispute which is dismissed for default and restore the same, upon such terms as to the payment of costs, as it thinks fit, if the disputant makes an application within thirty days from the date of its dismissal and appoint a day for hearing and deciding the dispute on merits.”

The reading of above sub-section makes it clear that it deals with a situation where the disputant is absent. Under this sub-section Co-operative Court may dismiss the dispute for default and the Court is also empowered to restore the dispute on sufficient grounds if the application to that e