Case Note & Summary
The petitioners, Smt. Kalpana Taori and Ramesh Taori, challenged a recovery certificate for Rs.9,76,506.85 issued under Section 105(1) of the Maharashtra Cooperative Societies Act read with Rule 89(14) of the Rules, in respect of Maa Sharda Mahila Nagari Sahakari Bank Maryadit, Akola, which was under liquidation. The certificate was issued by the liquidator, and an appeal under Section 152 of the Act was dismissed on 21.07.2006, leading to the filing of two writ petitions. The core legal issue was whether the liquidator had jurisdiction to issue the certificate when there was no adjudication on whether the petitioners were members of the society, and whether prior approval of the Registrar under Rule 89(14) was obtained. The court noted that Section 105(1)(h) confers power on the liquidator to determine debts due from members of the society, and Rule 89(14) requires prior approval of the Registrar for exercising such power. The court found that there was no adjudication on the petitioners' membership, and even if they were members, there was nothing on record to show that prior approval of the Registrar was obtained. Consequently, the court held that the certificate was issued without jurisdiction and could not be sustained. The court allowed both writ petitions, quashing the recovery certificate and the appellate order.
Headnote
A) Cooperative Law - Recovery Certificate - Jurisdiction of Liquidator - Section 105(1)(h) Maharashtra Cooperative Societies Act, 1960 read with Rule 89(14) - The liquidator's power to determine debts due is confined to members of the society; if a person is not a member, such power cannot be exercised. Even if the person is a member, prior approval of the Registrar is mandatory. In the absence of adjudication on membership and prior approval, the certificate is without jurisdiction and cannot be sustained. (Paras 2-3)
Issue of Consideration
Whether the recovery certificate issued under Section 105(1) of the Maharashtra Cooperative Societies Act read with Rule 89(14) of the Rules can be sustained when there is no adjudication as to whether the petitioner was a member of the society and no prior approval of the Registrar was obtained.
Final Decision
Both writ petitions are allowed. The recovery certificate and the appellate order dated 21.07.2006 are quashed and set aside.
Law Points
- Liquidator's power under Section 105(1)(h) of Maharashtra Cooperative Societies Act is limited to debts due from members of the society
- Prior approval of Registrar under Rule 89(14) is mandatory for exercising such power
- Certificate issued without adjudication of membership and without prior approval is without jurisdiction
Case Details
2015 LawText (BOM) (02) 138
Writ Petition No.5491 of 2006 and Writ Petition No.5514 of 2006
Shri N.S. Bhattad for Petitioner, Shri Neeraj Patil (AGP) for Respondent No.1, Shri R.G. Kavimandan for Respondent No.2
Smt. Kalpana w/o Ramesh Taori @ Tawari and Ramesh s/o Damodar Taori @ Tawari
The Joint Registrar, Cooperative Societies, Amravati; Maa Sharda Mahila Nagari Sahakari Bank Maryadit, Akola through its Official Liquidator; The Special Recovery and Sale Officer, Maa Sharda Mahila Nagari Sahakari Bank Maryadit, Akola
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Nature of Litigation
Writ petitions challenging a recovery certificate issued under Section 105(1) of the Maharashtra Cooperative Societies Act read with Rule 89(14) of the Rules.
Remedy Sought
Quashing of the recovery certificate and the appellate order dismissing the appeal.
Filing Reason
The recovery certificate was issued without adjudication of membership and without prior approval of the Registrar, hence without jurisdiction.
Previous Decisions
An appeal under Section 152 of the Maharashtra Cooperative Societies Act was dismissed by order dated 21.07.2006.
Issues
Whether the recovery certificate under Section 105(1) of the Maharashtra Cooperative Societies Act read with Rule 89(14) can be sustained when there is no adjudication on the membership of the petitioner?
Whether the certificate is valid without prior approval of the Registrar as required under Rule 89(14)?
Submissions/Arguments
The petitioners argued that the certificate was issued without jurisdiction as there was no adjudication on their membership and no prior approval of the Registrar.
The respondents did not contest the lack of adjudication or prior approval.
Ratio Decidendi
The liquidator's power under Section 105(1)(h) of the Maharashtra Cooperative Societies Act is confined to debts due from members of the society. If a person is not a member, such power cannot be exercised. Even if the person is a member, prior approval of the Registrar under Rule 89(14) is mandatory. In the absence of adjudication on membership and prior approval, the certificate is without jurisdiction.
Judgment Excerpts
If a person is not a member of society, then such power cannot be exercised.
There is no adjudication as to whether the petitioner was a member of the society and even if he is a member of the society there is nothing on record to show that prior approval of the Registrar was obtained.
The exercise of issuing certificate is without jurisdiction.
Procedural History
A recovery certificate was issued under Section 105(1) of the Maharashtra Cooperative Societies Act read with Rule 89(14). An appeal under Section 152 of the Act was dismissed on 21.07.2006. Thereafter, two writ petitions were filed in the High Court challenging the certificate and the appellate order.
Acts & Sections
- Maharashtra Cooperative Societies Act, 1960: 105, 152
- Maharashtra Cooperative Societies Rules, 1961: 89(14)
