Case Note & Summary
The petitioner, Kailas Dinkar Wani, took a loan of Rs. 1,50,000 from respondent no. 1, Shri Agrasen Urban Cooperative Credit Society Ltd., on 3 December 2003. He defaulted on repayment, leading respondent no. 1 to file an application on 28 September 2007 for issuance of a recovery certificate under Section 101 of the Maharashtra Cooperative Societies Act, 1960 (Case No. 906 of 2007). The petitioner appeared in those proceedings and filed a reply, but the Special Recovery and Sale Officer (respondent no. 2) passed an ex parte order on 31 March 2008, directing recovery of the amount. The petitioner claimed he was not served with notice of the final order and had no knowledge of it. He came to know about the recovery proceedings only when respondent no. 1 attempted to take possession of his property. On 3 February 2009, the petitioner filed an application for condonation of delay in filing an appeal against the ex parte order, along with the appeal. The Divisional Joint Registrar, Cooperative Societies, Nasik Division, rejected the condonation application on 16 September 2009, holding that the petitioner had not shown sufficient cause for the delay of 1 year and 7 months. Aggrieved, the petitioner filed the present writ petition under Articles 226 and 227 of the Constitution of India. The High Court observed that the petitioner had appeared in the initial proceedings and filed a reply, but the ex parte order was passed without notice to him. The court found that the petitioner had sufficient cause for the delay as he was not served with the order and had no knowledge of it. The court held that the delay was not intentional and that the petitioner should be given an opportunity to contest the recovery on merits. The impugned order dated 16 September 2009 was quashed and set aside, and the application for condonation of delay was allowed. The appellate authority was directed to hear the appeal on merits after giving both parties an opportunity of being heard.
Headnote
A) Cooperative Law - Condonation of Delay - Sufficient Cause - Section 101 Maharashtra Cooperative Societies Act, 1960 - Petitioner took loan from respondent society, defaulted, and an ex parte recovery certificate was issued under Section 101. Petitioner claimed he was not served with notice and had no knowledge of proceedings. He filed an appeal with a delay of 1 year 7 months, which was rejected by the Divisional Joint Registrar. The High Court held that the petitioner had sufficient cause for delay as he was not served and had no knowledge, and the delay was not intentional. The court set aside the impugned order and allowed the condonation of delay, directing the appellate authority to hear the appeal on merits. (Paras 1-10)
B) Cooperative Law - Recovery Certificate - Ex Parte Proceedings - Natural Justice - Section 101 Maharashtra Cooperative Societies Act, 1960 - The recovery certificate was issued ex parte without proper service of notice on the petitioner. The High Court emphasized that the petitioner should be given an opportunity to contest the recovery on merits, as the delay was not deliberate and the petitioner had a valid defence. The court directed the appellate authority to decide the appeal afresh after hearing both sides. (Paras 6-10)
Issue of Consideration
Whether the Divisional Joint Registrar erred in rejecting the petitioner's application for condonation of delay in filing an appeal against an ex parte recovery certificate, and whether the petitioner had sufficient cause for the delay.
Final Decision
The writ petition is allowed. The impugned order dated 16.9.2009 passed by the Divisional Joint Registrar, Cooperative Societies, Nasik Division, Nasik, is quashed and set aside. The application for condonation of delay dated 3.2.2009 is allowed. The appellate authority is directed to hear the appeal on merits after giving both parties an opportunity of being heard. Rule is made absolute accordingly.
Law Points
- Condonation of delay
- Sufficient cause
- Opportunity of hearing
- Natural justice
- Section 101 Maharashtra Cooperative Societies Act
- 1960
- Section 5 Limitation Act
- 1963
Case Details
2010 LawText (BOM) (09) 13
WRIT PETITION NO. 1337 OF 2010
Ms Sadaf Qazi (holding for Shri J.R.Shaikh) for petitioner; Shri A.I.Deshmukh for respondent nos. 1 and 2; Shri P.P.More, A.G.P. for respondent nos. 3 to 5
Shri Agrasen Urban Cooperative Credit Society Ltd., Jalgaon; Shri R.B.Yadav, Special Recovery and Sale Officer; Deputy Registrar, Cooperative Societies, Jalgaon; Divisional Joint Registrar, Cooperative Societies, Nasik; The State of Maharashtra
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution of India challenging the order of Divisional Joint Registrar rejecting condonation of delay in filing appeal against ex parte recovery certificate under Section 101 of Maharashtra Cooperative Societies Act, 1960.
Remedy Sought
Petitioner sought quashing of the impugned order dated 16.9.2009 passed by the Divisional Joint Registrar and allowance of the application for condonation of delay dated 3.2.2009.
Filing Reason
Petitioner's application for condonation of delay in filing appeal against ex parte recovery certificate was rejected by the Divisional Joint Registrar on the ground of insufficient cause.
Previous Decisions
The Special Recovery and Sale Officer passed an ex parte order on 31.3.2008 directing recovery of loan amount. The Divisional Joint Registrar rejected the condonation of delay application on 16.9.2009.
Issues
Whether the petitioner had sufficient cause for the delay of 1 year and 7 months in filing the appeal against the ex parte recovery certificate.
Whether the impugned order dated 16.9.2009 passed by the Divisional Joint Registrar is sustainable in law.
Submissions/Arguments
Petitioner argued that he was not served with notice of the ex parte order and had no knowledge of the recovery proceedings until the society attempted to take possession of his property.
Respondents contended that the petitioner had appeared in the initial proceedings and thus had knowledge, and the delay was not sufficiently explained.
Ratio Decidendi
The court held that the petitioner had sufficient cause for the delay as he was not served with the ex parte order and had no knowledge of the recovery proceedings. The delay was not intentional, and the petitioner should be given an opportunity to contest the recovery on merits. The principles of natural justice require that a party be heard before an adverse order is passed.
Judgment Excerpts
The petitioner herein had taken loan of Rs. 1,50,000/ from respondent no.1 on 3.12.2003, but since the petitioner herein did not repay the said loan amount and interest thereon regularly and committed default, respondent no.1 herein filed an application on 28.9.2007 and prayed for issuance of recovery certificate under Section 101 of the Maharashtra Cooperative Societies Act, 1960 under Case No. 906 of 2007.
The petitioner herein appeared in the said matter and filed reply, but the respondent no.2 herein passed the impugned order dated 31.3.2008 ex parte and directed recovery of the amount.
The petitioner herein was not served with the notice of the said order and he had no knowledge about the same.
The petitioner herein had sufficient cause for the delay and the delay was not intentional.
Hence, the impugned order dated 16.9.2009 passed by the Divisional Joint Registrar, Cooperative Societies, Nasik Division, Nasik, deserves to be quashed and set aside.
Procedural History
The petitioner took a loan from respondent no. 1 on 3.12.2003 and defaulted. Respondent no. 1 filed an application on 28.9.2007 for recovery certificate under Section 101 of the Maharashtra Cooperative Societies Act, 1960. The petitioner appeared and filed a reply. The Special Recovery and Sale Officer passed an ex parte order on 31.3.2008 directing recovery. The petitioner, claiming no knowledge of the order, filed an application for condonation of delay on 3.2.2009 along with an appeal. The Divisional Joint Registrar rejected the condonation application on 16.9.2009. The petitioner then filed the present writ petition on 22.2.2010.
Acts & Sections
- Maharashtra Cooperative Societies Act, 1960: 101
- Constitution of India: 226, 227
