JUDGMENT :

Bela M. Trivedi, J.

The petitioner claiming to be the Member of the respondent No.3 Cooperative Society has filed the present petition on behalf of himself and on behalf of other 371 Members listed in Annexure-A seeking following prayers:-

"23.(a) To issue a writ of mandamus or any other appropriate writ, order and direction to the respondents to forthwith issue No Due Certificate to the petitioner and all 371 farmers as per list Annexure-A and such other farmers have already paid and are ready and willing to repay their official and lawful KCC loan amount due to Bagad Seva Sahkari Mandli Limited;

(b) To direct the respondent take action/step under Section 93 of the Gujarat Cooperative Societies Act, 1961 as recommended by the inquiry officer appointed by respondent-1 under Section 86 of the Act and strictly take action as per the recommendations made in the report dated 24.1.2011;

(c) To order investigation against erring officers of the Bank and the society by State CID Crime;

(d) To direct the respondents to refund the amount to the farmers who are forced to pay excess KCC loan amount (as shown in column No.6 of Mangna Patrak by the secretary) with interest and penalty though such amount is not obtained by them but misappropriated by the secretary and others;

(e) To direct the respondents to take actions as per the recommendations of the inquiry officer appointed by respondent-1 as stated in his report dated 24.1.2011 (Annexure-B)."

2. Heard the learned Advocate Mr. Nitin Amin for the petitioner and the learned Advocate Mr. Viral Shah for the respondent No.2 Bank.

3. The short facts are that as per the case of the petitioner large scale fraud and misappropriation, forgery and cheating was committed by the then Chairman, Secretary and Committee Members of the respondent No.3 Society, which was noticed in the year 2010, and therefore, the respondent District Registrar had ordered an inquiry under Section 86 of the Gujarat Cooperative Societies Act, 1961 (hereinafter referred to as "the said Act"). The Inquiry Officer had submitted his report on24.1.2011, in which various actions were suggested by the Inquiry Officer to be taken against the offenders as per the provisions of the said Act. According to the petitioner, the then Secretary of the Society one Mr. Bhupatbhai Ukadbhai Makwana had misappropriated more than Rs. 4 crore by showing Kisaan Cash Credit Loans exceeding the upper limits of the farmers in the Mangna Patrak prepared by him and obtained the said amount from the Bank and used for his personal purpose. When the said Secretary was unable to repay the amount misappropriated by him, he forged power-of-attorney of 31 farmers and got them registered with the Sub-Registrar's office at Dandhuka and mortgaged the lands of such farmers with the Society and the respondent Bank. So far as the petitioner and other 371 enlisted at Annexure-A were concerned, for not fault of them and without their knowledge and consent, their lands were mortgaged with the respondent Society and the respondent Bank on forged, bogus documents created by the said Secretary. Though the petitioner and the 371 farmers had not asked for and applied for any Kisaan Cash Credit Loans more than their approved upper limits, the then Secretary forged the Demand List/Mangna Patrak and obtained the loans from the respondent Bank in the name of the petitioner and other farmers. When the fraud committed by the then Secretary came to light he absconded with the accounts books of the Society. Now, the respondents are asking the petitioner and other farmers to repay the amount misappropriated by the said Secretary Mr. Bhupatbhai Ukadbhai Makwana and others, with interest and penalty before issuing the 'No Due Certificate' to them and hence, the present petition has been filed.

4. At the outset, it is pertinent to note that the present petition involves serious disputed questions of facts, inasmuch as the petitioner has alleged fraud and misappropriation of money