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2023 Supreme(Online)(Bom) 2715
HIGH COURT OF BOMBAY
SANDEEP V. MARNE, J
Monica Sagar Kate & Anr – Appellant
Versus
The Joint Registrar – Respondent
Writ Petition No.8440 of 2022 | Writ Petition No.2755 of 2022 | Writ Petition No.8431 of 2022 | Writ Petition No.8432 of 2022 | Writ Petition No.8430 of 2022 | Writ Petition No.8433 of 2022 | Writ Petition No.8434 of 2022 | Writ Petition No.8435 of 2022 | Writ Petition No.2758 of 2022 | Writ Petition No.8436 of 2022 | Writ Petition No.8437 of 2022 | Writ Petition No.8438 of 2022 | Writ Petition No.8439 of 2022 | Writ Petition No.2757 of 2022
For the Appellants/Petitioners: Tushal Sonawane, Pooja Satpute
For the Respondents: S.D. Rayrikar, AGP, G.S. Godbole, Manjiri Parasnis
The Registrar under Section 101 of the Maharashtra Co-operative Societies Act lacks authority to resolve disputed facts, necessitating full adjudication in Cooperative Court under Section 91.
Headnote:(A) Maharashtra Co-operative Societies Act, 1960 - Section 101 - Jurisdiction of Registrar to issue recovery certificates - Petitioner claimed repayment of loan with issuance of 'No Dues Certificates', which Respondent disputed - Assistant Registrar rejected recovery application, stating lack of jurisdiction to assess document authenticity - Divisional Joint Registrar remanded for fresh decision, leading to challenge by Petitioners - Court determined Registrar's limited role under Section 101 does not extend to resolving disputed facts or examining evidence - Petitioner provided essential documentary proof of repayment, thus requiring full adjudication under Section 91, enabling a broader inquiry - Orders remanded set aside. (Paras 1-4, 11, 25)
Facts of the case:
Petitioners, after availing loans from Respondent-Society, claimed full repayment evidenced by 'No Dues Certificates' and Release Deeds, countered by Society’s claim of forged documents and unattested releases. (Paras 2-5)
Findings of Court:
The court concluded that the Assistant Registrar's inability to adjudicate contentious factual disputes under Section 101 warranted reversal of remand orders, thereby emphasizing the necessity for thorough resolution through the Cooperative Court pursuant to Section 91. (Paras 24-25)
Issues: Whether the application of Section 101 for recovery was correct given the disputed documents' authenticity. (Para 15)
Ratio Decidendi: The inquiry by the Registrar under Section 101 is summary in nature, not permitting fact-finding on disputed documents; thus the matters warranted referral to Cooperative Court under Section 91, advocating for a full examination of disputed claims. (Paras 20-22)
Result: Writ petitions allowed; remand orders set aside, granting liberty to Respondent-Society to file disputes under Section 91.
| Table of Content |
|---|
| 1. challenge to recovery certificate application (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. revision applications and response of petitioners (Para 8 , 9 , 10) |
| 3. nature of jurisdiction under section 101 (Para 14 , 15 , 16) |
| 4. registrar's limited powers in recovery (Para 18 , 19 , 20) |
| 5. invalidity and authority of release deeds (Para 21 , 22 , 23) |
| 6. writ petitions allowed; alternate remedy under section 91 (Para 24 , 25) |
JUDGMENT
1. These Petitions are filed challenging orders dated 31st December 2021 passed by the Divisional Joint Registrar allowing Revision Applications filed by Respondent Credit Society and remanding the proceedings before the Assistant Registrar for a fresh decision. The Assistant Registrar had rejected proceedings filed by Respondent-Credit Society for issuance of recovery certificate under Section 101 of the Maharashtra Co-operative Societies Act 1960 (Act of 1960).
2. Petitioners are borrowers who have availed credit facilities from Respondent No.3-Credit Society. They claim that the entire amount due under said Credit facilities have been repaid by them with interest, on account of which the Credit Society issued various ‘No Dues Certificates’ to Petitioners. It is further contended that after issuance of ‘No Dues Certificates’, the Respondent-Credit Society executed Release Deeds in their favour. Facts in all the Petitions are similar. For brevity, facts in Writ Petition No.8440/2022 are narrated as follows.
3. Chatrapati Sambhaji Maharaj Sahakari Patsanstha, Baramati (Respondent No.3) is a Credit Society registered under the provisions of the Act of 1960. Petitioners are members of the Respondent-Society which granted and disbursed loan of Rs. 14,000,00/- to them for business purposes. In pursuance of the loan transaction, Petitioners executed promissory note, acceptance letters, consent letter of sureties, loan agreement, etc. in favour of the Respondent- Society. Petitioners also offered agricultural property admeasuring 10 Acre out of Survey No.45/5/B at Baramati as well as residential Unit No.3 in the building ‘Kate Pride’ at Baramati, District Pune towards security for the loan.
Petitioners also executed Mortgage Deed in favour of the Respondent-Society on 28th August 2015, which came to be registered in the office of Sub-Registrar of Assurances, Baramati.
4. Petitioners claim that they have repaid the entire amount availed by them towards loan along with interest to the Respondent-Society. They contend that the Respondent- Society accordingly issued ‘No Dues Certificate’ on 24th October 2016 certifying that no amount was due or payable by the Petitioners in the loan account. Petitioners also claim that on account of repayment of the entire loan amount, Respondent-Society executed Release Deed dated 11th July 2016 in favour of the Petitioners releasing their charge over the two mortgaged properties.
5. The Respondent-Society later claimed that the Petitioners had neither repaid the loan amount, nor any ‘No Dues Certificate’ was issued by the Society. The Respondent- Society also denied having executed any Release Deed in favour of Petitioners. The Respondent-Society claims that its Branch Manager unauthorizedly issued ‘No Dues Certificate’ and executed Release Deed without any decision to that effect being taken in the managing committee meeting of the Society.
6. The Respondent-Society has accordingly filed Special Civil Suit No.51/2019 seeking a declaration that various Release Deeds unauthorizedly executed by the Branch Manager are ab initio void and not binding on the Respondent- Society. It has also sought a declaration that it continues to have the charge over mortgaged properties in pursuance of various Mortgage Deeds executed in his favour. Some of the subsequent Sale Deeds executed by the borrowers/guarantors/mortgagor are also sought to be cancelled in the said suit. The Respondent-Society sought temporary injunction against the Defendants in Special Civil Suit No.51/2019 to restrain t
