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2019 Supreme(Bom) 1027
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. Dhanuka, J.
Datta Nagari Sahakari Patsanstha – Appellant
Versus
Tanwani Hotels Pvt. Ltd. – Respondent
Writ Petition Nos. 435, 438, 440, 2406, 2407, 2436, 2442 of 2013, 1548, 3024, 4722, 4965 of 2017 with Civil Application Nos. 1450, 1451 of 2013, 2544, 2723, 2724 of 2014
Decided On : 02-07-2019
Advocate Appeared:
Rajendra V. Pai, P.D. Dalvi, A.R. Pai, Neuty N. Thakkar, Apurva Bhat, A.S. Khandeparkar, Datta H. Pawar, Sonali Pawar, Apoorva Khandeparkar, Onash Legus, R.P. Kadam.
Headnote:
Maharashtra Co-operative Societies Act, 1960 – Section 91,101,154,154(2A) and 98(a)(ii) – Loan - Recovery certificate – One is hereinafter referred to as lender whereas Hotels Pvt. Ltd. and others are referred to as borrowers in the later part of this judgment - One of borrower Hotels Pvt. Ltd. who was a member of lender applied for loan for a sum respectively - Lender sanctioned said loan on condition that borrower would pay compound interest at rate of 19% per annum with six monthly rest insofar as loan amount is concerned and compound interest at rate of 20% per annum with six monthly rest insofar as loan amount is concerned - Borrower agreed to repay entire loan with interest as per terms of agreement – Two applied for loan of certain sum each respectively to lender which amount was sanctioned by lender - It is the case of lender that all the aforesaid borrowers failed to repay amount under those three loans to lender as per terms of contract and committed default - Lender applied for issuance of recovery certificate under section 101 of the MCS Act against Hotels Pvt. Ltd. - Lender applied for issuance of recovery certificate against one - Separate application was made on 22nd December, 2003 by the lender for issuance of the recovery certificate - Whether the lender had submitted statement of account to borrowers in terms of consent award rendered by Co-operative Court or not – Held, Supreme Court in case of V. Kala Bharathi and Others (supra) relied upon by learned counsel for lender has held that if amount deposited by judgment-debtor falls short of the decretal amount, the decree-holder is entitled to apply rule of appropriation by appropriating amount first towards interest, then towards costs and subsequently towards principal amount due under decree - Borrowers have paid various amounts after issuance of recovery certificates by Assistant Registrar to lender during the pendency of various proceedings - In view of the principles of law laid down by Supreme Court in case of V. Kala Bharathi and Others (supra), lender would be entitled to apply rule of appropriation by appropriating amount paid first towards interest, then towards costs and subsequently towards principal amount due under the recovery certificate – In court view, borrowers have not made out a case for setting aside order passed by learned Divisional Joint Registrar rejecting revision applications filed by borrowers which are subject matter of Writ Petition and thus these writ petitions are liable to be dismissed.
JUDGMENT :
R.D. Dhanuka, J.
1. By Writ Petition Nos. 435 of 2013, 438 of 2013, 440 of 2013, 2406 of 2013, 2407 of 2013, 2436 of 2013 and 2442 of 2013, Shri Datta Nagari Sahakari Patsanstha Maryadit (Chinchwad) has challenged various orders. By Writ Petition Nos. 4722 of 2017, 4965 of 2017, 1548 of 2017 and 3024 of 2017, M/s. Tanwani Hotels and other two borrowers have challenged various orders passed by the authority under the provisions of the Maharashtra Co-operative Societies Act, 1960 (for short the said MCS Act) read with Maharashtra Co-operative Societies Rules, 1961 (for short the said MCS Rules) By consent of parties, all the aforesaid writ petitions were heard together and are being disposed of by a common order. Some of the relevant facts for the purpose of deciding these petitions are as under :-
2. Shri Datta Nagari Sahakari Patsanstha Maryadeet (Chinchwad) is hereinafter referred to as the lender whereas the Tanwani Hotels Pvt. Ltd. and others are referred to as the borrowers in the later part of this judgment.
3. On or about 30th June, 1999, one of the borrower i.e. Tanwani Hotels Pvt. Ltd. who was a member of the lender applied for loan for a sum of Rs. 70 lacs and Rs. 80 lacs respectively. On 30th June, 1999, the lender sanctioned the said loan on the condition that the borrower would pay compound interest at the rate of 19% per annum with six monthly rest insofar as loan amount of Rs. 70 lacs is concerned and compound interest at the rate of 20% per annum with six monthly rest insofar as loan amount of Rs. 80 lacs is concerned. The borrower agreed to repay the entire loan with interest as per the terms of the agreement on or before 29th June, 2002.
4. On 5th January, 1999 and 9th May, 2000 Mr. Anil Tanwani and Mr. Amar Tanwani applied for loan of Rs. 30 lacs each respectively to the lender which amount was sanctioned by the lender. It is the case of the lender that all the aforesaid borrowers failed to repay the amount under those three loans to the lender as per the terms of the contract and committed default.
5. On 18th November, 2004, the lender applied for issuance of the recovery certificate under section 101 of the MCS Act against Tanwani Hotels Pvt. Ltd. On 22nd December, 2003, the lender applied for issuance of the recovery certificate against Mr. Amar Tanwani. A separate application was made on 22nd December, 2003 by the lender for issuance of the recovery certificate against Mr. Anil Tanwani.
6. On 20th December, 2004, the Assistant Registrar of Co-operative Societies, Shirol issued notices to the borrowers in those application filed under section 101 of the MCS Act and posted the matter for hearing on 31st January, 2005. It is the case of the lenders that the borrowers appeared before the Assistant Registrar and sought adjournments on not less than 10 occasions. The borrowers also failed to submit its say before the Assistant Registrar.
7. On 25th January 2005 and 16th June 2005 Tanwani Hotels Pvt. Ltd. Mr. Amar Tanwani and Mr. Anil Tanwani filed a dispute under section 91 of the MCS Act against the lenders before the Co-operative Court, Kolhapur for settlement of the accounts between the lender and the borrowers and for other reliefs. On 20th August, 2005, the borrowers made oral submission before the Assistant Registrar. On 14th October, 2005, the learned Assistant Registrar issued certificate under section 101 of the MCS Act against all the borrowers.
8. On 14th November, 2005, the borrowers applied for review of the order dated 14th October, 2005 passed by the learned Assistant Registrar. On 25th November, 2005, the learned Assistant Registrar allowed the said review application and re-heard the application filed by the lender for issuance of the recovery certificate. On 29th April, 2006, the learned Assistant Registrar passed an order issuing recovery certificate under section 101 of the MCS Act for the sum of Rs. 1,17,32,497/- in respect of the first loan of Rs. 70 lacs with interest at the rate of 19%
