Case Note & Summary
The petitioner, Dinkar Vishwanath Wani, had taken 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. 905 of 2007). The petitioner appeared in the matter and filed a reply. The Special Recovery Officer, respondent no. 2, passed an order on 31 March 2008 issuing a recovery certificate. The petitioner then filed an appeal before the Divisional Joint Registrar, Cooperative Societies, Nasik, along with an application for condonation of delay dated 3 February 2009, as the appeal was filed about 15 months late. The Divisional Joint Registrar rejected the condonation application and consequently dismissed the appeal on 16 September 2009. The petitioner challenged this order by way of a writ petition under Articles 226 and 227 of the Constitution of India. The main legal issue was whether the delay should be condoned. The petitioner argued that he was not aware of the recovery proceedings and that no notice was served upon him. The respondents opposed the condonation. The court, after hearing the parties, found that the petitioner's explanation constituted sufficient cause for the delay. The court noted that the petitioner had a prima facie case and that the delay was not intentional. The court set aside the impugned order dated 16 September 2009 and allowed the application for condonation of delay. The court directed the Divisional Joint Registrar to hear the appeal on merits and also directed the Special Recovery Officer to give an opportunity of hearing to the petitioner before proceeding further with the recovery. The writ petition was allowed in those terms.
Headnote
A) Limitation Act - Condonation of Delay - Section 5 - Sufficient Cause - The court considered whether the delay of about 15 months in filing an appeal against a recovery certificate under Section 101 of the Maharashtra Cooperative Societies Act, 1960 should be condoned. The petitioner claimed that he was not aware of the recovery proceedings and that the Special Recovery Officer had not served notice. The court held that the explanation of the petitioner constituted sufficient cause for condonation of delay, and that the delay should be condoned to afford an opportunity of hearing to the petitioner. (Paras 4-8)
B) Cooperative Societies - Recovery Certificate - Section 101 Maharashtra Cooperative Societies Act, 1960 - Opportunity of Hearing - The court emphasized that before issuing a recovery certificate, the borrower must be given an opportunity of hearing. In the present case, the petitioner alleged that no notice was served upon him before the recovery certificate was issued. The court directed that the petitioner be heard by the Special Recovery Officer before proceeding further. (Paras 4-8)
Issue of Consideration
Whether the Divisional Joint Registrar was justified in rejecting the petitioner's application for condonation of delay in filing an appeal against the recovery certificate under Section 101 of the Maharashtra Cooperative Societies Act, 1960.
Final Decision
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 Divisional Joint Registrar is directed to hear the appeal on merits. The Special Recovery Officer is directed to give an opportunity of hearing to the petitioner before proceeding further with the recovery. Rule made absolute accordingly.
Law Points
- Condonation of delay
- Sufficient cause
- Liberal approach
- Section 5 Limitation Act
- Section 101 Maharashtra Cooperative Societies Act
- 1960
- Opportunity of hearing
- Natural justice
Case Details
2010 LawText (BOM) (09) 14
WRIT PETITION NO. 1389 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
Mr. Dinkar Vishwanath Wani
Shri Agrasen Urban Cooperative Credit Society Ltd., Shri R.B.Yadav, Deputy Registrar Cooperative Societies, Divisional Joint Registrar Cooperative Societies, 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 appeal against recovery certificate under Section 101 of Maharashtra Cooperative Societies Act, 1960.
Remedy Sought
Petitioner sought quashing of order dated 16.9.2009 passed by Divisional Joint Registrar and allowance of application for condonation of delay dated 3.2.2009.
Filing Reason
Petitioner's appeal against recovery certificate was dismissed as time-barred due to rejection of condonation of delay application.
Previous Decisions
Special Recovery Officer issued recovery certificate on 31.3.2008. Divisional Joint Registrar rejected condonation of delay and dismissed appeal on 16.9.2009.
Issues
Whether the delay of about 15 months in filing the appeal should be condoned.
Whether the petitioner had sufficient cause for the delay.
Submissions/Arguments
Petitioner argued that he was not aware of the recovery proceedings and no notice was served upon him, and that the delay was not intentional.
Respondents opposed the condonation, arguing that the petitioner had appeared in the recovery proceedings and was aware.
Ratio Decidendi
The court held that the explanation of the petitioner that he was not aware of the recovery proceedings and that no notice was served upon him constituted sufficient cause for condonation of delay under Section 5 of the Limitation Act, 1963. The court emphasized that a liberal approach should be adopted in condonation of delay matters to afford an opportunity of hearing to the party, especially when the delay is not intentional and the party has a prima facie case.
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. 905 of 2007.
The petitioner herein appeared in the said matter and filed reply and the Special Recovery Officer passed order on 31.3.2008 and issued recovery certificate.
The petitioner herein preferred an appeal before the Divisional Joint Registrar, Cooperative Societies, Nasik Division, Nasik along with application for condonation of delay dated 3.2.2009, but the said application for condonation of delay was rejected by the Divisional Joint Registrar by order dated 16.9.2009 and consequently the appeal was also dismissed.
In the present matter, the petitioner has explained the delay and stated that he was not aware about the recovery proceedings and no notice was served upon him.
Considering the facts and circumstances of the case, I am of the considered view that the explanation given by the petitioner constitutes sufficient cause for condonation of delay and the delay deserves to be condoned.
Procedural History
On 3.12.2003, petitioner took loan of Rs. 1,50,000 from respondent no.1. On 28.9.2007, respondent no.1 filed application for recovery certificate under Section 101 of MCS Act. On 31.3.2008, Special Recovery Officer issued recovery certificate. On 3.2.2009, petitioner filed appeal with condonation application before Divisional Joint Registrar. On 16.9.2009, Divisional Joint Registrar rejected condonation and dismissed appeal. On 2010, petitioner filed writ petition in Bombay High Court. On 21.9.2010, High Court allowed the writ petition.
Acts & Sections
- Maharashtra Cooperative Societies Act, 1960: 101
- Limitation Act, 1963: 5
- Constitution of India: 226, 227
