1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

WRIT PETITION NO. ________ OF 2024

ACT CODE: ____

(In the matter arising out of provisions under the Maharashtra

Co-operative Societies Act, 1960, Rules 86A to 86F of the
Maharashtra Co-operative Rules, 1961 and various other
rules thereunder)

AND

(In the matter arising out of the improper, wrongful and

perverse order dated 08/12/2023 passed by the Ld. Assistant
Registrar of Co-operative Societies, Murtizapur, in complete
contravention of the principles of natural justice, without
following the procedure prescribed under Rules 86A to 86F
and being wholly without jurisdiction, thereby allowing the
application filed by respondent no.1 for grant of recovery
certificate in its favour and other consequential orders arising
therefrom)

PETITIONER: Dev Plastics, through its proprietor

Kamla Devkisan Sarda,
Aged about _____ yrs, Occ. __,
R/o Goenka Nagar, Murtizapur
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VERSUS

RESPONDENTS: 1) The Shegaon Agrasen Sahakari

Pat Sanstha Maryadit Shegaon,
Branch Murtizapur, Dist. Akola

2) Sanjay s/o Jaikisan Daga,

Aged about ____ years,
Occ. _______,
R/o Jaistambh Chauk, Station
Department, Murtizapur

3) Satish Bhikamchand Sarda,

Aged about _____ years,
Occ. _______,
R/o Goenka Nagar, Murtizapur

4) Assistant Registrar of Cooperative

Societies, Murtizapur, Dist. Akola

5) Special Recovery Officer for The

Shegaon Agrasen Sahakari Pat
Sanstha Maryadit Shegaon

WRIT PETITION UNDER ARTICLES 226 AND 227 OF

THE CONSTITUTION OF INDIA

The petitioner begs to most humbly and respectfully submit as

under:

Being aggrieved by the improper, wrongful and perverse order

dated 08/12/2023 passed by the Ld. Assistant Registrar of Co-
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operative Societies, Murtizapur in complete contravention of

the principles of the natural justice, without following the
procedure prescribed under Rules 86A to 86F, being wholly
without jurisdiction, whereby the application filed by
respondent no.1 for grant of recovery certificate in its favour
was allowed, and also consequentially aggrieved by the
recovery certificate issued in pursuance of the same, the
demand notice under Rule 107(3) of the Maharashtra Co-
operative Societies Rules, 1961, the seizure notice under Rule
107 (5) of the Maharashtra Co-operative Societies Rules,
1961, the petitioner is constrained to prefer the instant writ
petition on the following facts and grounds:

BRIEF FACTUAL MATRIX

1) That, the petitioner is a proprietorship firm dealing in the

business of manufacturing and production of plastic
rope, pipe etc. The respondent no.1 is a co-operative
society registered under the provisions of Maharashtra
Co-operative Societies Act, 1960 (hereinafter referred to
as “said Act” for the sake of brevity) and is functioning
as a co-operative credit society, of which the petitioner
is a member and a shareholder.
2) That, the petitioner was desirous of obtaining C.C. limit
of Rs. 40 lacs for the purpose of business working
capital and hence, the petitioner applied with the
respondent no.1 for grant of the same. The copy of the
application dated 16/02/2017 filed by the petitioner with
 4

the respondent no.1 for grant of the abovementioned

loan is annexed herewith and marked as “ANNEXURE-
1”. The respondent no.2 and 3, vide separate
applications dated 16/02/2017, have applied to the
respondent no.1 for acting as guarantors to the petitioner
in respect of the abovementioned loan. The copy of the
applications dated 16/02/2017 filed by the respondent
no.2 and 3 are collectively annexed herewith and
marked as “ANNEXURE-2”.
3) In pursuance of the above, the respondent no.1 accepted
the application filed by the petitioner for grant of loan
and sanctioned C. C. limit of Rs. 40 lacs to the petitioner
firm. The copy of sanction letter issued by the
respondent no.1 in respect of the abovementioned loan
and the letter containing the terms and condition of the
abovesaid acceptance are collectively annexed herewith
and marked as “ANNEXURE-3”. A mere perusal of the
same will reveal that, first of all, the column of date as
mentioned in the sanction letter is blank and hence, the
sanction letter is an undated one. Moreover, clause 4) of
the letter mentions the rate of interest that will be
charged as against the loan to be 16% per annum.
However, in clause 1) of the letter containing the terms
and conditions of the abovesaid acceptance, the rate of
interest of the said loan has been mentioned to be 14%
per annum or any other rate of interest to be fixed from
 5

time to time. Hence, there is contradiction and variance

in the documents issued by the respondent no.1, as
regards the rate of interest to be charged on the cash
credit loan availed by the petitioner firm.
4) That, the letter dated 16/02/2017 issued by the
respondent no.1 to the petitioner acknowledging the
debt/ securities and the acceptance of the petitioner
(borrower) and the respondent no.2 and 3 (guarantors)
as regards the same, is annexed herewith and marked as
“ANNEXURE-4”. The copy of the cash credit/
overdraft agreement dated 16/02/2017 executed between
the petitioner and the respondent no.1 is annexed
herewith and marked as “ANNEXURE-5”. In clause 2)
of the abovesaid agreement, it has been mentioned that,
rate of interest of 14% per annum shall be charged on
the cash credit limit as availed by the petitioner firm.
5) That, the petitioner firm executed a demand promissory
note dated 16/02/2017 in favour of the respondent no.1,
thereby promising to pay an amount of Rs. 40 Lacs
alongwith an interest of 14% per annum in pursuance of
the loan availed by the petitioner from the respondent
no.1. The copy of the demand promissory note dated
16/02/2017 is annexed herewith and marked as
“ANNEXURE-6”. The petitioner firm also issued a
continuing security bond dated 16/02/2017 in favour of
the respondent no.1 establishment and a copy of the
 6

same has been annexed herewith and marked as

“ANNEXURE-7”.
6) That, towards the security of the abovementioned cash
credit facility sanctioned by the respondent no.1 in
favour of the petitioner firm, a registered mortgage deed
dated 08/02/2017 was executed by the petitioner in
favour of the respondent no.1. The copy of the
abovementioned registered mortgage deed dated
08/02/2017 is annexed herewith and marked as
“ANNEXURE-8”. By way of the abovementioned
mortgage deed, an open plot bearing plot no. 11
admeasuring 161.12 square meters situated at Mouza
Sonori, Taluka & District Murtizapur, more particularly
described in clause 1) of the mortgage deed (hereinafter
referred to as “said plot” for the sake of brevity), owned
by Kamla Devkisanji Sarda (proprietor of the petitioner
no.1) was mortgaged by her in favour of the respondent
no.1. The said plot had already been mortgaged by
Kamla Devkisanji Sarda in favour of the respondent
no.1, earlier in point of time, via a registered mortgage
deed dated 03/01/2012, towards security of a cash credit
loan of Rs. 30 Lacs availed by Dev Polymers through its
proprietor Sushil Devkisanji Sarda. Hence, as mentioned
in clause 2) of the mortgage deed dated 08/02/2017, the
said plot has been mortgaged in favour of the
 7

respondent no.1 towards security of cash credit facility

of Rs. 70 Lacs in total.
7) That, the petitioner firm and respondent no.2 and 3 also
executed an Equitable Mortgage deed/ Nazar Gahan
Khat dated 16/02/2017 in favour of the respondent no.1
and a copy of the same has been annexed herewith and
marked as “ANNEXURE-9”. Kamla Devkisanji Sarda,
the proprietor of the petitioner firm had also executed an
affidavit in favour of the respondent no.1, the copy of
which has been annexed herewith and marked as
“ANNEXURE-10”.
8) That, without classifying the petitioner firm’s account as
inoperative or non-performing, the respondent no.1
directly issued a notice dated 30/11/2021 to the
petitioner firm thereby calling upon the petitioner firm
to repay a total amount of Rs. 70,01,798 within 15 days
of the receipt of the said notice in favour of the
respondent no.1 and that, in default of the same, the
respondent no.1 would initiate proceedings under
Section 101 of the said Act as against the petitioner. The
copy of the abovementioned notice dated 30th
November, 2021 has been annexed herewith and marked
as “ANNEXURE-11”. A perusal of the same would
become crystal clear that, the respondent no.1 did not
give any calculations justifying the demand of Rs.
70,01,798 and also did not mention the rate at which
 8

interest had charged by respondent no.1 over and above

the principal amount, in order to arrive at the abovesaid
demand.
9) The respondent no.1 society vide resolution dated
22/12/2022, resolved to initiate proceedings under
Section 101 of the said Act against the petitioner
towards recovery of Rs. 77,55,154. The copy of the
resolution passed by the respondent no.1 in the meeting
dated 22/12/2022 is annexed herewith and marked as
“ANNEXURE-12”. That, the abovesaid resolution was
passed more than a year after the notice dated 30th
November, 2021 was issued by the respondent no.1 in
favour of the petitioner. That, there is a difference of
more than Rs. 7 Lacs in the amount demanded by the
respondent no.1 via the notice dated 30 th November,
2021 and the amount as mentioned in the resolution
dated 22th December, 2022, however, absolutely no
calculation has been supplied by the respondent no.1 as
regards the same.
10) That, the respondent no.1 also passed a resolution in the
meeting dated 22/12/2022, thereby resolving to
authorize Mr. Rajesh Balramsingh Thakur and Mr.
Pramod Aatmaram Aapurkar to represent the respondent
no.1 society and file an application under Section 101 of
the said Act on behalf of the respondent no.1 society,
against the petitioner. The copy of the said resolution
 9

has been annexed herewith and marked as

“ANNEXURE-13”
11) That, the respondent no.1 again sent a notice dated 09 th
February, 2023 to the petitioner, thereby demanding an
amount of Rs. 77,55,154 to the petitioner within 15 days
of the receipt of the said notice in favour of the
respondent no.1 and that, in default of the same, the
respondent no.1 would initiate proceedings under
Section 101 of the said Act as against the petitioner. The
copy of the abovementioned notice dated 09th February,
2023 has been annexed herewith and marked as
“ANNEXURE-14”. Yet again, the respondent no.1 did
not give any calculations justifying the demand of Rs.
77,55,154/- and also did not mention the rate at which
interest had charged by respondent no.1 over and above
the principal amount, in order to arrive at the abovesaid
demand.
12) That, the respondent no.1 filed an undated application
against the petitioner, respondent no.2 and 3 under
Section 101 of the said Act towards recovery of Rs.
77,55,154 alongwith interest before the Ld. Assistant
Registrar of Co-operative Societies, Murtizapur. The
copy of the said application has been annexed herewith
and marked as “ANNEXURE-15”.
13) At this juncture, it is very pertinent to mention here
that, Chapter VIII-A of the Maharashtra Co-operative
 10

Societies Rules, 1961 (hereinafter referred to as “said

rules” for the sake of brevity), comprising of rules 86A
to 86F, encapsulates the complete summary procedure
as regards grant of certificate for recovery under Section
101 of the said Act. Rule 86A deals with the
requirements as regards the application for grant of
certificate for recovery, rule 86B deals with the scrutiny
of such application and notice to the parties, rule 87C
deals with the appearance of the parties and
consequences of non-appearance, rule 86D deals with
the production and inspection of documents, rule 86E
deals with the procedure for hearing of the application
and rule 86F deals with the judgment, order and
certificate. The application filed by the respondent no.1
for grant of certificate under Section 101 of the said Act
is in complete contravention to rules 86A to 86F of the
said rules and in complete contravention to the
procedure prescribed under law.
14) That, clause 1 of rule 86A mentions that, “Every
application for grant of certificate for recovery under
Section 101 shall be in Form “U”. Such application shall
be affixed by the court fees of rupees one hundred.”
That, for the purpose of ready reference, the copy of
Form “U” as prescribed by the said rules is annexed
herewith as “ANNEXURE-16”. A perusal of the
application as filed by the respondent no.1 reveals that,
 11

the same is in complete contravention of the above

prescribed format and does not conform to the same.
That, various material particulars as required by the
abovementioned rule have been casually left blank by
the respondent no.1 and hence, the same is completely
contrary to the procedure prescribed by the
abovementioned rules.
15) That, Form “U” as annexed hereinabove, clearly
requires that, the application under Section 101 of the
said Act, be supported by an affidavit of an authorized
officer of the co-operative society, thereby stating on
oath that, the statements as made in the application are
true to his knowledge and belief and further that, the
requisite documents as mentioned therein have been
submitted on behalf of the co-operative society. That,
this Hon’ble Court in the case of “Top Ten Vs. State of
Maharashtra” as reported in (2012) 1 Mh.L.J. 347, in
Para 17 has held that: “17. Chapter VIIIA of 1961 Rules
vide its Rule 86A shows procedure for filing application
for grant of certificate for recovery. The form in which it
is to be filed is also prescribed and documents which
must accompany are also stipulated. Form “U” in
which application under section 101 is required to be
filed shows the requirement of disclosure of relevant
facts by the concerned society; all necessary facts which
make the respondents before that authority either
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borrower or guarantor; the procedure followed for

sanctioning loan, securities furnished, documents
executed. The applicant then has to point out failure to
repay principal amount and interest upon it and
demand/demands made by the concerned society. A
resolution of the Board of Directors to file an
application under section 101 is, also required to be
pleaded. Details of loan transaction are also required to
be pointed out as part and parcel of this application.
The application is required to be supported by affidavit
of responsible officer of a co-operative society.”
16) The application as filed by the respondent no.1 herein
for grant of certificate of recovery under Section 101
clearly reveals that, the same has not been supported by
the affidavit of the authorized officer of the respondent
no.1 society and so also that, various other particulars
are required in the affidavit are completely blank. The
application does not even mention the name of the
authorized officer who has filed by the abovesaid
application on behalf of the respondent no.1 society. In
absence of this fundamental requirement, the entire
contentions and averment as made by the respondent
no.1 society, without having been proved as required by
law, could not have been even considered by the
respondent no.4.
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17) That, Rule 86A further prescribes that, the application

has to be accompanied with a list of papers alongwith
various papers including certified true copies of the
relevant documents copies of the loan documents such
as loan application, promissory note, loan agreement
etc. That, to the best of knowledge of the petitioner, in
the present case, the respondent no.1 society has not
annexed the application alongwith the certified true
copies of the abovementioned documents. The object of
the legislature in mandating a co-operative society to
file certified true copies of the documents as mentioned
above, is that, a recovery certificate has huge civil and
financial implications against the person against whom
it is issued and hence, the documents on the basis of
which it is issued must be genuine, undisputed and
proved beyond iota of doubt. Hence, in the present case,
as the application of the respondent no.1 has not been
supported by the true copies of the said documents, the
application filed by the respondent no.1 could not have
been allowed, to the prejudice of the petitioner.
18) Rule 86B of the said rules mentions that, after receipt
of the application, only if the Registrar is satisfied that,
the application is complete in all respects, can he
proceed to register it. In case the application is not
complete in all respects, then the Registrar cannot even
register the same and he is bound to dismiss the said
 14

application. The Registrar can issue notice to the other

side, only after the application complies with the
requirements of the rules. The roznama of the
proceeding culminating from the application under
Section 101 of the said Act, filed by the respondent no.1
before the respondent no.4 is annexed herewith and
marked as “ANNEXURE-17”. That, the said roznama
does not bear any entry that, in compliance of the said
rule, the application as filed by the respondent no.1 was
perused by the respondent no.4. Hence, the respondent
no.4, without following the due procedure under law
and in complete contravention of the rules, merely
casually and illegally registered the application filed by
the respondent no.1. Hence, on this short count alone,
the application filed by the respondent no.1 was liable to
be dismissed and no notice could have been issued by
the respondent no.4 in pursuance to such an application.
19) That, the petitioner appeared in the said matter before
the respondent no.4 through his advocate and as the
copies of the relevant document had not been supplied
to him, he filed an application dated 15/06/2022 praying
for supply of the documents as relied upon by the
respondent no.1. So also, the petitioner filed an
application dated 15/06/2022 requesting for time to file
reply, as it was not feasible for him to file the reply
without the receipt of the necessary documents as
 15

demanded for. The copies of the abovesaid applications

dated 15/06/2022 have been collectively annexed
herewith and marked as “ANNEXURE-18”. That no
such documents as relied upon by the respondent no.1
were supplied to the petitioner as demanded for. Thus,
on this very short count alone, the entire proceedings
before the respondent no.4 are completely violative of
the principles of natural justice, as the petitioner did not
have access to the documents relied upon by the
respondent no.1 against the petitioner, and hence, the
petitioner did not get the chance to defend himself and
was denied an effective opportunity of being heard in
the true sense.
20) That, the petitioner, through her lawyer, had filed an
application dated 25/08/2023 stating therein that, the
account extracts as submitted by the respondent no.1
were erroneous and wrongful and that, the respondent
no.1 had illegally demanded excessive amount of
interest from the petitioner. Hence, the petitioner prayed
that, in view of the serious errors and lacunas in the
account extracts, the account extracts be referred to a
chartered accountant for inspection of the same. The
copy of the said application has been annexed herewith
and marked as “ANNEXURE-19”. In view of the same,
the account extracts were referred to CA Bhushan Jajoo
for inspection of the account extracts vide letter dated
 16

01/09/2023. As the report of the CA was awaited, a

further reminder letter dated 15/09/2023 was issued by
the respondent no.4 to CA Bhushan Jajoo. Ultimately,
vide written communication dated 17/11/2023, received
by the respondent no.4 on 28/11/2023, the CA Bhushan
Jajoo stated that, the interest as charged by the
respondent no.1 from 16/02/2016 till 23/06/2023 was
found by him as correct and proper. The copies of the
letter dated 01/09/23, 15/09/23, 17/11/2023 have been
collectively annexed herewith and marked as
“ANNEXURE-20”. The account statement of the
petitioner of the period from 16/02/2017 till 30/05/2023
as filed by the respondent no.1 before the respondent
no.4 authority has been annexed herewith and marked as
“ANNEXURE-21”.
21) That, a mere perusal of the entire record including the
bank statement as annexed above will clearly reveal
that, no where has the bank mentioned the rate of
interest at which the interest has been calculated by it,
whether it includes the penal interest on it or not, and
whether the final amount as calculated by the
respondent no.1 bank to be outstanding is actually
correct or not. That, the letter dated 17/11/2023 as
addressed by the abovementioned CA, is merely a blank
letter stating that all the calculations are correct and
proper, without giving even an iota of reasons or
 17

explanation for the same. When such a disputed fact is

referred to an expert person like a Chartered
Accountant, it is his duty to give adequate technical
reasons and explanation, justifying his ultimate
conclusion. However, the same are completely missing
in the instant case. The account statement as annexed
hereinabove at Annexure-21, contains a handwritten
amount of 28,75,121/- charged by the respondent no.1
towards interest. That, when the entire account extract
till 30/05/2023 had been filed by the respondent no.1, it
ordinarily contains all the entries towards interest as
well, and hence, there was no justification in charging
an additional amount of interest by writing a particular
figure in handwriting. That, burden of proof lies upon
the respondent no.1 to prove the contentions made by it
and the outstanding amount as computed by it. That, all
the abovesaid aspects have been completely ignored by
the respondent no.4 authority while passing the
impugned order dated 08/12/2023, and not even a single
finding has been given by the respondent no.4 towards
the abovesaid aspect.
22) That if the Roznama of the proceedings before the Ld.
Respondent no.4 authority annexed at Annexure-17 is
seen then, it becomes clear that, the matter was fixed on
25/08/2023, on which date the petitioner filed the
application dated 25/08/2023 for referring the account
 18

extracts to the CA, the matter was next posted on

01/12/2023. That, on the said date, the petitioner and her
counsel were absent and a copy of the report of the CA
was supplied to the respondent no.2. Thus, the roznama
of the proceedings before the Ld. Authority itself clearly
reveals that, the copy of the report of the CA has not
been supplied to the petitioner and hence, non-supply of
the said document vitiates the entire proceeding before
the Ld. Authority.
23) That, Rule 86F of the said rules deals with the rules as
regards judgment, order and certificate and it has been
stated therein that, after hearing the arguments of the
parties, the Registrar shall issue a reasoned judgment
and pass an order for the grant or rejection of the
application. That, from the Roznama of the proceedings
at Annexure-17, it is absolutely clear that, on
01/12/2023, the petitioner and her lawyer both were
absent. Only respondent no.2 was present on the said
date and the matter has been closed for order by the
respondent no.4 authority on the very same day. Hence,
the same conclusively proves that, the matter was closed
for order on 01/12/2023, without even hearing the
petitioner or her lawyer. Hence, the impugned order
dated 08/12/2023 has been passed by the Ld.
Respondent no.4 authority without giving an
 19

opportunity of being heard to the petitioner, and hence,

the same is liable to be quashed and set aside.
24) That, after the instant matter was closed for order by
the respondent no.4 authority, the Ld. Respondent no.4
authority passed the improper, illegal and perverse
judgment dated 08/12/2023, thereby illegally and
wrongfully allowing the application filed by the
respondent no.1 for grant of certificate under Section
101 of the said Act. The copy of the impugned order
dated 08/12/2023 passed by the respondent no.4
authority is annexed herewith and marked as
“ANNEXURE-22”. The impugned order as passed by
the respondent no.4 is a classical example of non-
application of mind. Even a glimpse of the same will
clearly reveal that, the respondent no.4 has merely made
a farce of passing an order, without passing a reasoned
order in its true essence. The said order does not give
any legal and valid reasons and findings towards the
conclusion as drawn by the respondent no.4 authority
and has been passed merely for namesake, merely in
order to anyhow comply with the requirement under
law. In view of the same, the impugned order deserves
to be quashed and set aside.
25) That, in view of the abovementioned order dated
08/12/2023, the respondent no.4 issued a recovery
certificate dated 08/12/2023 in favour of the respondent
 20

no.1 society. The copy of the said recovery certificate

dated 08/12/2023 has been annexed herewith and
marked as “ANNEXURE-23”. That, the said recovery
certificate also suffers from various legal infirmities.
There are various blanks in the recovery certificate in
various entries, which ought to have been filled.
26) That, in pursuance of the abovementioned recovery
certificate, the respondent no.5- Special Recovery
Officer for the respondent no.1 issued a demand notice
dated 11/12/2023 under Rule 107(3) of the said rules.
The copy of the said demand notice under Rule 107(3)
has been annexed herewith and marked as
“ANNEXURE-24”. That, by way of the abovesaid
notice, the petitioner was called upon to pay the amount
of Rs. 77,55,154/- alongwith future interest and cost for
serving the notice with the respondent no.1 on or before
28/12/2023 and further be present on 28/12/2023 at
around 11 AM with the respondent no.1 in order to
furnish the receipt towards payment of the same.
27) That, further, the respondent no.5- Special Recovery
Officer for the respondent no.1 issued a seizure notice
dated 04/03/2024 against the petitioner under Rule 107
(5) of the said rules. The copy of the said notice has
been annexed herewith and marked as “ANNEXURE-
24”. That, the abovesaid notice mentions that, as the
petitioner failed to pay the amount as demanded by the
 21

earlier notice dated 11/12/2023, the petitioner is further

called upon to pay an amount of Rs. 81,34,795/- to the
respondent no.1 alongwith interest and costs
immediately. It is very pertinent to mention here that,
the abovesaid notice mentions that, in case the petitioner
fails to comply with the notice, then in such a case, on
any date excluding the government holidays, between
sunrise till sunset, in absence or presence of the
petitioner, possession would be taken of the personal/
business movable/ immovable property in the residential
house of the petitioner. That, in the instant case, from
the mortgage deed at Annexure-8, it can be clearly seen
that, only an open plot as mentioned therein had been
mortgaged in favour of the respondent no.1 and the
residential house of the proprietor of the petitioner has
not been mortgaged. Hence, it is crystal clear that, under
the garb of the recovery certificate in favour of the
respondent no.1, the respondent no.1 is trying to
illegally and wrongfully valuable movable and
immovable property in connection with the residential
house of the proprietor of the petitioner.
Being aggrieved thereby, the petitioner is preferring the
instant writ petition on the following grounds amongst
others:
GROUNDS
 22

A. That, respondent no.4 grossly erred in passing the

impugned order 08/12/2023, thereby allowing the
application filed by the respondent no.1 for grant of
recovery certificate in its favour.
B. The respondent no.4 ought to have rejected the
application filed by the respondent no.1 for grant of
recovery certificate in its favour.
C. The impugned order dated 08/12/2023 passed by the
Ld. Assistant Registrar of Co-operative Societies has
been passed in complete contravention of the
principles of the natural justice, without following
the procedure prescribed under Rules 86A to 86F, is
wholly without jurisdiction, and deserves to be
quashed and set aside by this Hon’ble Court.
D. The Ld. Assistant Registrar of Co-operative
Societies, Akola erringly passed the impugned order
dated 08/12/2023 without giving an opportunity of
being heard to the petitioner and hence, the
impugned order dated 08/12/2023 has been passed in
utter violation of the principles of natural justice. It is
a settled law as laid down by the Hon’ble Apex Court
and this Hon’ble Court via a catena of judgments
that, any order passed by any judicial or quasi-
judicial authority without giving an opportunity of
being heard and in complete violation of principles
 23

of natural justice is erroneous and hence, deserves to

be quashed and set aside on this short count alone.
E. The impugned order dated 08/12/2023 passed by the
Ld. Assistant Registrar of Co-operative Societies is a
classical example of non-application of mind. It is
pertinent to mention here that, even though, the Ld.
Assistant Registrar of Co-operative Societies, has
falsely held that, the borrower was heard, the said
fact gets contradicted by even a glimpse at the
roznama at Annexure 17, which shows that, neither
the petitioner nor her lawyer were present on
01/12/2023, when the matter was heard and closed
for order on the same date. Without prejudice and
without admitting, even if arguendo, if we consider
that, the petitioner was heard then, the Ld.
Respondent no.4 authority has not even recorded and
considered the submissions made by the petitioner by
giving reasoned findings. The Ld. Authority has
given merely one line findings in the impugned order
as regards all of the issues respetively and hence, the
impugned order clearly reveals that, the Ld. Assistant
Registrar of Co-operative Societies has not applied
his mind to the facts and circumstances of the case.
F. That, the respondent no.2 and 3 appeared via their
lawyer in the matter before the Ld. Assistant
Registrar of Co-operative Societies, and vide
 24

application dated 15/06/2023 prayed for time to file

their reply and objection. The copy of the application
dated 15/06/2023 filed by the respondent no.2 and 3
is annexed herewith and marked as “ANNEXURE-
25”. Inspite of the same, in the impugned order dated
08/12/2023, the Ld. Assistant Registrar of Co-
operative Societies has recorded a finding that,
inspite of service of notice upon the respondent no.2
and 3, they failed to appear. The same can also be
directly contradicted by the roznama annexed at
Annexure-17, which clearly shows that the
respondent no.2 was duly present before the Ld.
Respondent no.4 authority on 02/08/2023,
25/08/2023 and 01/12/2023. Hence, the impugned
order dated 08/12/2023 has been passed without even
deciding the hereinabove referred application dated
15/06/2023 filed by the respondent no.2 and 3, and
even without hearing and considering the
submissions of respondent no.2, even though he was
duly present before the authority on 01/12/2023, on
which date, the arguments were heard and the matter
was closed for judgment. Hence, even on this count,
the impugned order dated 08/12/2023 suffers from
violation of principles of natural justice and hence,
deserves to be quashed and set aside.
 25

G. Chapter VIIIA of the Maharashtra Co-operative

Societies Rules, 1961, comprising of rules 86A to
86F, encapsulates the complete summary procedure
as regards grant of certificate for recovery under
Section 101 of the said Act, which are mandatorily
required to be followed by Registrar of Co-operative
Societies while passing any order under Section 101
of the said Act. The impugned order dated
08/12/2023 as passed by the Ld. Respondent no.4
authority has been passed in gross violation of the
abovesaid rules and hence, deserves to be quashed
and set aside.
H. That, clause 1 of rule 86A mentions that, “Every
application for grant of certificate for recovery under
Section 101 shall be in Form “U”, which has been
annexed for the purpose of ready reference at
Annexure-16. A perusal of the application as filed by
the respondent no.1 reveals that, the same is in
complete contravention of the above prescribed
format and does not conform to the same. That,
various material particulars as required by the
abovementioned rule have been casually left blank
by the respondent no.1. and hence, no any order
could have been passed by the Ld. Respondent no.4
on such illegal application.
 26

I. That, Form “U” clearly requires that, the application

under Section 101 of the said Act, be supported by an
affidavit of an authorized officer of the co-operative
society, thereby stating on oath that, the statements as
made in the application are true to his knowledge and
belief and further that, the requisite documents as
mentioned therein have been submitted on behalf of
the co-operative society. The same has also been held
by this Hon’ble Court in the case of Top Ten Vs.
State of Maharashtra” as reported in (2012) 1
Mh.L.J. 347 in Para 17. The application filed by the
respondent, shows that, the same has not been
supported by the affidavit of the authorized officer of
the respondent no.1 and so also that, various other
particulars are required in the affidavit are
completely blank. The application does not even
mention the name of the authorized officer who has
filed by the abovesaid application on behalf of the
respondent no.1 society. Hence, in view of the
abovesaid fundamental defect, no any order could
have been passed by Ld. Respondent no.1 authority
over such an application.
J. That, Rule 86A prescribes that, the application has to
be accompanied with a list of papers alongwith
certified true copies of the relevant documents such
as loan application, promissory note, loan agreement
 27

etc. That, to the best of knowledge of the petitioner,

in the present case, the respondent no.1 society has
not annexed the application alongwith the certified
true copies of the abovementioned documents and
hence, the respondent no.1 has breached the
mandatory procedure as prescribed under Rule 86A
of the said rules.
K. That, there are various fundamental defects in the
application filed by the respondent no.1 as mentioned
above. Rule 86B of the said rules mentions that, after
receipt of the application, only if the Registrar is
satisfied that, the application is complete in all
respects, can he proceed to register it. In case the
application is not complete in all respects, then the
Registrar cannot even register the same and he is
bound to dismiss the said application. The Registrar
can issue notice to the other side, only after the
application complies with the requirements of the
rules. Hence, the Ld. Assistant Registrar of Co-
operative Societies, by ignoring the procedure as
prescribed under Rule 86B, has proceeded to
casually and illegally register the said application.
L. That, the petitioner, through his advocate had filed an
application dated 15/06/2022 praying for supply of
the documents as relied upon by the respondent no.1.
and another application dated 15/06/2022 requesting
 28

for time to file reply, as it was not feasible for him to

file the reply without the receipt of the necessary
documents as demanded for. No such documents as
were supplied to the petitioner as demanded for, and
hence, as the petitioner did not have access to the
documents relied upon by the respondent no.1, she
did not get the chance to defend herself and was
denied an effective opportunity of being heard in the
true sense.
M. That the Roznama of the proceedings clearly indicate
that, the matter was fixed on 25/08/2023, on which
date the petitioner filed the application dated
25/08/2023 for referring the account extracts to the
CA, the matter was next posted on 01/12/2023. That,
on the said date, the petitioner and her counsel were
absent and a copy of the report of the CA was
supplied to the respondent no.2. Thus, the roznama
of the proceedings before the Ld. Authority itself
clearly reveals that, the copy of the report of the CA
was not been supplied to the petitioner and hence,
non-supply of the said document vitiates the entire
proceeding before the Ld. Authority.
N. That, the Ld. Respondent no.4 authority has
considered the calculations made by respondent no.1
as gospel truth, without verifying the correctness of
the same. The petitioner, had raised a dispute that,
 29

the account extracts as submitted by the respondent

no.1 were erroneous and wrongful and that, the
respondent no.1 had illegally demanded excessive
amount of interest. The respondent no.1 has no
where mentioned the rate of interest at which the
interest has been calculated by it and whether it
includes the penal interest on it or not. The written
communication dated 17/11/2023, as received by the
respondent no.4 from CA Bhushan Jajoo on
28/11/2023, is merely a blank letter stating that all
the calculations are correct and proper, without
giving even an iota of reasons or explanation for the
same. The account statement at Annexure-21,
contains a handwritten amount of 28,75,121/-
charged by the respondent no.1 towards interest. In
view of the same, as burden of proof lies upon the
respondent no.1 to prove the outstanding amount as
computed by it, it ought to have proved the same by
way of positive evidence. That, all the abovesaid
aspects have been completely ignored by the
respondent no.4 authority while passing the
impugned order dated 08/12/2023, and not even a
single finding has been given by the respondent no.4
as regards the same.
O. The seizure notice dated 04/03/2024 issued by the
respondent no.5 against the petitioner under Rule 107
 30

(5) of the said rules. clearly shows that, inspite of the

fact that, only an open plot has been mortgaged in
favour of the respondent no.1 and that, the residential
house of the proprietor of the petitioner has not been
mortgaged, the respondent no.1 is trying to illegally
and wrongfully grab the valuable movable and
immovable property of the residential house of the
proprietor of the petitioner.
P. The petitioner craves the leave of this Hon’ble Court
to raise any other ground at the time of hearing of the
instant matter.
28) That, in view of the seizure notice dated 04/03/2024
issued by the respondent no.5 against the petitioner, the
respondent no.1 may any time, illegally and wrongfully
take possession of the movable and immovable
properties in relation to the residential house of the
proprietor of the petitioner, and hence, in case, the effect
an operation of the impugned order dated 08/12/2023,
the recovery certificate dated 08/12/2023, demand
notice dated 11/12/2023 under Rule 107(3) of the said
rules, the seizure notice dated 04/03/2024 is not stayed,
then the petitioner will be subjected to huge irreparable
loss. The petitioner has an excellent prima-facie case
and balance of convenience also lies in favour of the
petitioner. Hence, in view of the above, it is necessary to
stay the effect and operation of the impugned order
 31

dated 08/12/2023, recovery certificate dated 08/12/2023,

the demand notice dated 11/12/2023 under Rule 107(3)
and the seizure notice dated 04/03/2024.
29) That, the petitioner fairly states that, she has an
alternate remedy to file a revision under Section 154
before the Ld. Registrar Co-operative Societies.
However, in the facts of the instant case, the abovesaid
alternate remedy cannot in any mode or manner be said
to be an efficacious remedy. Firstly, the impugned order
dated 08/12/2023 as has been mentioned above, is in
gross violation of the principles of natural justice, is in
complete contravention of the procedure prescribed
under law and is passed wholly without jurisdiction, and
hence, in view of the law settled by a catena of
judgments of the Hon’ble Apex Court and this Hon’ble
Court, the bar of alternate remedy does not apply in the
present case. Moreover, as per Section 154(2A) of the
said Act, no revision can be filed by the petitioner
without first depositing an amount equivalent to 50% of
the total amount of recoverable dues with the revisional
authority. The petitioner is not in a position to pay the
abovesaid amount and even otherwise, the petitioner
cannot be compelled to pay the amount as mentioned
above in pursuance to the order dated 08/12/2023,
which is absolutely illegal, improper, perverse and a
classical example of non-application of mind, and
 32

hence, also, the remedy of revision cannot be said to be

an efficacious remedy in the instant case.
30) That, this Hon’ble High Court has the territorial
jurisdiction to entertain the present application.
31) That, the Applicants have not filed any Writ Petition,
Appeal or Application against order impugned in the
present matter, previously either before this Hon’ble
Court or before Hon’ble Supreme Court of India.
32) The petitioner undertakes to supply the translated
copies of the Marathi documents as and when directed
by the court.
33) That, to the best of knowledge of the petitioner, no
caveat has been filed by the respondents relating to the
impugned order in the present matter.

Hence, this writ petition.

PRAYER: It is most humbly and respectfully prayed that,

this Hon’ble Court may kindly be pleased to:

1) Allow the instant writ petition and quash and set aside
the order dated 08/12/2023 passed by the Ld. Assistant
Registrar of Co-operative Societies, Murtizapur at
Annexure-22, recovery certificate dated 08/12/2023 at
Annexure-23, demand notice dated 11/12/2023 issued
by the Special Recovery Officer for The Shegaon
Agrasen Sahakari Pat Sanstha Maryadit Shegaon at
Annexure-24 and Seizure Notice dated 04/03/2024
 33

issued by the Special Recovery Officer for The Shegaon

Agrasen Sahakari Pat Sanstha Maryadit Shegaon at
Annexure-25.
2) Grant interim stay to the effect and operation of the
order dated 08/12/2023 passed by the Ld. Assistant
Registrar of Co-operative Societies, Murtizapur at
Annexure-22, recovery certificate dated 08/12/2023 at
Annexure-23, demand notice dated 11/12/2023 issued
by the Special Recovery Officer for The Shegaon
Agrasen Sahakari Pat Sanstha Maryadit Shegaon at
Annexure-24 and Seizure Notice dated 04/03/2024
issued by the Special Recovery Officer for The Shegaon
Agrasen Sahakari Pat Sanstha Maryadit Shegaon at
Annexure-25.
3) Grant ad-interim ex-parte relief in terms of prayer clause
2).
4) Grant any other relief or pass any other order in the
interest of justice, equity and fair conscience.

NAGPUR
DATED: C. F. PETITIONER

SOLEMN AFFIRMATION
 34

I, Kamla wd/o Devkisanji Sarda, Aged about ____,

Prop. Of Dev Plastics, R/o Goenka Nagar, Murtizapur do

hereby take an oath and states on solemn affirmation that the

contents of para 1 to 33 of the Writ Petition is drafted by my

Counsel upon my instructions and are true and correct as per

my knowledge and record.

Hence, verified and signed on this ______ day of March, 2024

at Murtizapur.

DEPONENT

I know and identify the Deponent.