A guarantor's challenge to a recovery certificate can only proceed if the mandatory pre-deposit as per statutory provisions is fulfilled; failure to do so renders any writ petition not maintainable.

1. This petition filed under Articles 226 and 227 of the Constitution inter alia assails a Recovery Certificate dated 25 September, 2018 issued by the Deputy Registrar, Cooperative Societies, Thane City-respondent no. 3 whereby an earlier Recovery Certificate dated 12 September, 2013 issued against the petitioner, who is the guarantor and who offered a collateral security, to the commercial borrowings by respondent no.6, has been confirmed.

2. The case of the petitioner is that, respondent no. 5-The Thane Bharat Sahakari Bank Ltd. (for short “the bank”) had sanctioned a term loan facility of Rs.1.90 crores in favour of one M/s. Shree Vaishnavi Enterprises, a sole proprietory concern of respondent no. 6-Amritlal Jayantilal Bava (for short “Amritlal”), who is stated to be the husband of the petitioner. Such term loan facility was availed for purchase of 10 trucks/trailers. On enquiry it was revealed to the bank that there were procedural violations as also misappropriation and fraudulent utilization of the amounts released under the said term loan facility as availed by Amritlal. It was also revealed that the officers of the bank were also involved in such irregularities.

3. In July, 2013, Amritlal filed a Dispute bearing no. 125 of 2013 before the Cooperative Court No. II under the provisions of Section 91 of the Maharashtra Cooperative Societies Act, 1960 (for short “MCS Act”) against the bank inter alia raising issues in relation to a fraud played by the Branch Manager of the bank namely one Mr. Mahendra Bhoir. It appears that in August, 2013 the bank also filed a First Information Report with the Mulund Police Station bearing No. 338 of 2013 against Amritlal, as also against the Branch Manager Mr. Mahendra Bhoir and one Mr. Tejas Lodaya in regard to the fraud as perpetrated by these accused against the bank. The FIR was subject matter of investigation by the Economic Offences Wing, which investigated the complaint in regard to the flow of funds and the manner in which the same was routed to the accounts of Mr. Tejas Lodaya & Ors. It however appears that qua the bank the funds under the said loan were disbursed in favour of Amritlal.

4. In the meantime, on 24 July 2013 a Recovery Application No. ABN/TBSB/101/31/13-14) was filed by the bank inter alia against Amritlal as also against the petitioner under the provisions of Section 101 of the MCS Act. A notice of the said proceedings was received by the petitioner on 30 July, 2013.

5. On 12 December, 2013 on such recovery proceedings, an order was passed, whereby a recovery certificate was issued by the Deputy Registrar Cooperative Societies, Thane City against the petitioner as also against Amritlal whereby ordering that a sum of Rs. 1.78 crores plus costs of Rs.12,266/- be paid by the said persons to the bank. It is the case of the petitioner that such order was ex parte to the petitioner and that, it be believed, that the petitioner for the first time came to know of availing of credit facilities by Amritlal and the issuance of the recovery certificate, sometime in June, 2014. The petitioner has contended that in these circumstances, the petitioner approached this Court by filing Writ Petition No. 10803 of 2014, which came to be disposed of by a coordinate Bench of this Court by an order dated 3 July, 2018, whereby the recovery certificate dated 12 December, 2013 issued by the Deputy Registrar qua the petitioner was set aside on a statement being made on behalf of the bank, when the bank stated that without the bank admitting allegations of the petitioner, the bank would have no objection for the