Writ Petition No.4312 of 2006

8th January, 2007

Petitioner Counsel: G. R. AGRAWAL
Respondent Counsel: M. D. SAMEL

Cases Cited:
Gopal Krishnaji Vs. Mohd. Haji Latif, A.I.R. 1968 S.C. 1413 [Para 5]
Punit Rai Vs. Dinesh Chaudhary, (2003)8 S.C.C. 204 [Para 5]
City Bank N.A. Vs. Standard Chartered Bank, (2004)1 S.C.C. 12 [Para 5]
Ishwar Bhai C. Patel Vs. Harihar Behera, 1999(3) S.C.C. 457 [Para 6]
Vasundhara Ashokrao Patil Vs. Rajaram Bapu Sahakari Bank Ltd., 2003(3) ALL MR 393=2003(4) Mh.L.J. 315 [Para 8,12]
Kedarling Vikas Seva Society Ltd. Vs. Dinkar Bhimrao, 2003(1) ALL MR 66=2003(1) Mh.L.J. 152 [Para 8,13]
Khimji Vidhu Vs. Premier High School, 2000(3) ALL MR 663 (S.C.)=A.I.R. 2000 S.C.W. 2333 [Para 8]
Ouseph Mathai Vs. M. Abdul Khadir, A.I.R. 2002 S.C. 110 [Para 8]
R. P. Sawant Vs. Bajaj Auto Ltd., 2002(1) Mh.L.J. 626 [Para 8]
Chairman/Secretary of Institute of Shri. Acharya Ratna Deshbhushan Shikshan Prasarak Mandal Vs. Bhujgonda B. Patil, 2003(2) ALL MR 915=2003(3) Mh.L.J. 602 [Para 8]
Kantilal Ravji Mehta Vs. Sayarabai Chhaganlal Kering, 2003(3) ALL MR 988=2003(3) Mh.L.J. 52 [Para 8]
State Bank of India Vs. Neela Ashok Naik, 2000(3) ALL MR 154=2000(1) Mh.L.J. 801 [Para 8]
Ram Sarup Gupta Vs. Bishun Narain Inter College, A.I.R. 1987 S.C. 1242 [Para 9]
Authorised Officer (Land Reforms) Vs. M. M. Krishnamurthy Chetty, (1998)9 S.C.C. 138 [Para 9,10]
Shipping Corporation of India Ltd. Vs. C. L. Jain Wollen Mills, (2001)5 S.C.C. 345 [Para 9,11]
Vindhyachal Prasad Jaiswal Vs. VIIth Additional District Judge, 1994 Supp.(2) S.C.C. 137 [Para 9]
Ashok Kumar Vs. Sita Ram, (2001)4 S.C.C. 478 [Para 9]
K. V. Sundaram Vs. Raj Rajeshwari Co-operative Housing Society, 1980 Mh.L.J. 4 [Para 14]
Ram Sewak Vs. Munnalal, A.I.R. 1988 S.C. 452 [Para 16]
A. R. Antulay Vs. R. S. Nayak, A.I.R. 1988 S.C. 1513 [Para 17]
Life Insurance Corporation of India Vs. M/s. India Automobiles & Co., A.I.R. 1991 S.C. 884 [Para 18]
M/s. Sonepat Co-operative Sugar Mills Ltd. Vs. Ajit Singh, 2005(5) ALL MR 427 (S.C.)=A.I.R. 2005 S.C. 1050 [Para 18]

JUDGMENT

JUDGMENT :- By this writ petition, the petitioners, borrowers have challenged the judgment dated 27-1-2006 delivered by the Judge, Co-operative Court, Amravati, in Dispute No.222 of 2005 and the judgment dated 27-7-2006 delivered by the Member, Maharashtra State Co-operative Appellate Court, Mumbai, Nagpur Bench, Nagpur, in Appeal No.10 of 2006 confirming it. Earlier also they filed a writ petition vide Writ Petition No.2460 of 2005 which was decided by this Court on 29-7-2005. Then dispute before the Co-operative Court was directed to be decided within six months from the date of judgment of this Court and the petitioner was protected subject to his furnishing bank guarantee for an amount of Rs.Three lakhs. It is in this background that the parties urged for expeditious disposal of writ petition itself on merits at the stage of admission. Accordingly, writ petition was heard from time to time and is being disposed of finally.

2. In view of the earlier litigation which ultimately resulted in filing of Writ Petition No.2460 of 2005, the facts are not much in dispute. Respondent No.1 before this Court is a Co-operative Society registered as Credit Co-operative Society having its registered office at Amravati. The petitioners had applied for loan to said bank in the year 1991 and accordingly loan of Rs.1,87,500/- was sanctioned to them. In the year 1993, respondent No.1. Society started recovery by instituting proceedings under section 101 of Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the Act) and the Assistant Registrar Co-operative Societies accordingly issued a recovery certificate with interest @ 21% per annum on 4-4-2000. The said recovery certificate was challenged by the petitioners by filing Revision under section 154 of Maharashtra Co-operative Societies Act vide Revision No.45 of 2000 and that Revision was dismissed on 20-8-2001. The petitioner then filed Writ Petition No.3134 of 2001 before this Court and it appears that the learned Single Judge of this Court directed the petitioners to deposit amount of Rs.One lakh by order dated 4-9-2002. The petitioners filed Letters Patent Appeal No.169 of 2002. It was allowed but in the meanwhile, the petitioners deposited amount of Rs.One lakh. Writ Petition was ultimately allowed and the Divisional Joint Registrar was directed to hear both the parties and take fresh decision. The Revision was decided again on 20-9-2003 and recovery certificate was set aside and the matter was remanded back to lower authority. Taluqa Deputy Registrar, Amravati, on 2-12-2003 issued the recovery certificate under section 101 of the Act for amount of Rs.5,23,295/-. The petitioners again challenged said certificate vide Revision No.39 of 2003 and as it was not accompanied by mandatory deposit of 50% Writ Petition No.796 of 2004 was filed before this Court by the petitioners. This Court then directed the Divisional Joint Registrar to decide pending revision within 15 days. The Revision was again allowed and the matter was remanded back. Taluqa Deputy Registrar on 16-3-2005 granted recovery certificate for Rs.6,59,142/- with future interest at 21% per annum with quarterly rests. The petitioners filed Revision No.21 of 2005 before the Divisional Joint Registrar and on 13-5-2005, the said Revision came to be dismissed. Writ Petition No.2460 of 2005 was then filed before this Court and the order as mentioned above came to be passed in it on 29-7-2005.

3. It appears that in the meanwhile, the present petitioners filed Dispute under section 91 of the Act sometimes in the month of March, 2005 before Co-operative Court and in it they sought direction to recalculate the outstanding amount in their loan account after adjusting fixed deposit amount of Rs.75,000/- with interest thereon and the amount of Rs.18,750/- invested towards shares on 17-5-1993 and dividend upon it and subsequent payments made by the petitioners thereafter. Declaration was also sought that no amount was outstanding from the petitioners to the Society. The said Dispute was opposed by respondent No.1. Society on various grounds including the tenability of dispute under section 91 of the Act in the matter in view of the decision under section 101 of the Act. The dispute came to be decided on 27-1-2006 and Co-operative Court held that the petitioners Disputants before it could not prove that accounts of respondent No.1. Society were not correct and he also could not prove that they were entitled to recalculation of accounts. It, therefore, dismissed the dispute with costs. The Co-operative Appellate Court has dismissed the appeal preferred by the present petitioners by upholding the award/judgment of the Co-operative Court.

4. I have heard Shri. Bhangde, learned Senior Advocate with Shri. Agrawal, Advocate for the petitioners Shri.M. D. Samel, learned Advocate for respondent No.1 and the learned AGP for respondent No.2.

5. The learned Senior Advocate has argued that the Co-operative Court has erred in dismissing the dispute under erroneous impression. He argues that respondent No.1. Co-operative Society has not led any oral evidence and in these circumstances, the evidence led by present petitioners ought to have been accepted. The attention has been invited to discussion on issues Nos.11 and 12 by the Co-operative Court to state that the burden has been wrongly placed upon the petitioners by the Co-operative Court. It is argued that the best evidence to show correctness or otherwise of accounts maintained by it was with respondent No.1 and respondent No.1 therefore ought to have produced entire evidence and accounts in this respect before the Co-operative Court. It is contended that it was not necessary for the petitioners to call for those accounts and it is argued that as the society did not furnish said accounts before the Co-operative Court, an adverse inference under section 114(g) of the Indian Evidence Act ought to have been drawn against respondent No.1. The learned Senior Counsel has invited attention to the judgment reported in the case of Gopal Krishnaji Vs. Mohd. Haji Latif, reported at A.I.R. 1968 S.C. 1413; Punit Rai Vs. Dinesh Chaudhary, reported at (2003)8 S.C.C. 204 and City Bank N.A. Vs. Standard Chartered Bank reported at (2004)1 S.C.C. 12, in support of the contention that merely because the dispute is filed by the petitioners and not by respondent No.1, respondent No.1 Co-operative Society is not absolved of its responsibility to produce best evidence available with it to satisfy the Court about genuineness of its stand. It is argued that the Co-operative Court as also Co-operative Appellate Court ought to have appreciated the fact that there was challenge to correctness or otherwise of the accounts maintained by respondent No.1 and the petitioners by expert's evidence demonstrated that there were errors. It is contended that in such circumstances, failure to apply law correctly has resulted in refusal on the part of Co-operative Court and Co-operative Appellate Court to discharge jurisdiction available to it. The attention is also invited to statement of accounts placed on record by present respondent No.1 to show how there are some errors in it. The attention is even invited to application moved under section 101 of the Act by respondent No.1 to point out that the application nowhere mentions quarterly rests and there is no prayer as such for quarterly rests.

6. The petitioners have also invited attention to promissory note which mentions the rate of interest at 21% without specifying any interval of rests. The agreement on which respondent No.1 placed reliance is also pointed out to show that the agreement has not been proved before the Co-operative Court at all and what has been proved is only signature of petitioners upon it. It is stated that this agreement mentions quarterly rests but then said clause and agreement has not at all been proved. Attention has been invited to provisions of section 79 and section 80 of Negotiable Instruments Act to state that in these circumstances rate of interest as mentioned in promissory note alone is determinative. The attention is also invited to evidence of Chartered Accountant Shri. Mehta and interest calculation done by him at Exh.53 on record of Co-operative Court. It is stated that this interest calculation has been done on the basis of material available with the petitioners and said Chartered Accountant has also considered the fixed deposit receipt of Rs.26,620/- and Rs.48,380/- with their due date of maturity and has accounted for it in his statement of accounts. It is argued that as per statement of accounts prepared by this Chartered Accountant after giving due credit to the petitioners for the Fixed Deposit Receipts mentioned above, it is apparent that the amount outstanding was at the most of Rs.95,536/- while the petitioners paid about Rs.One lakh by 17-4-2003. It is contended that respondent No.1. Society therefore could have at most recovered interest for one year only. It is pointed out that this aspect has not been appropriately appreciated either by the Co-operative Court or by the Co-operative Appellate Court. It is stated that even appreciation of evidence of Shri. Mehta by Co-operative Court or Co-operative Appellate Court shows non application of mind. It is stated that reasons put forth for not accepting the said evidence are unsustainable. It is stated that even Co-operative Appellate Court has misdirected itself by observing that statement of account has been prepared uni-laterally without considering the records of the Society. It is argued that it was for Co-operative Society to place its record for consideration before the Co-operative Court and in view of the evidence of expert placed on record in the light of Statement of Account, the dispute ought to have been allowed. The learned Senior Advocate has also placed reliance upon the judgment of the Hon'ble Apex Court in the case of Ishwar Bhai C. Patel Vs. Harihar Behera, reported at 1999(3) S.C.C. 457 particularly paragraphs 23 and 29.

7. As against this Shri. Samel, Advocate for respondent No.1 has contended that there was no plea of improper accounting or protest about quarterly compounding of interest in dispute before the Co-operative Court. It is further argued that case law about burden of proof cited by the petitioners is totally irrelevant because nature of documents concerned in those cases is entirely different. It is contended that those cases consider documents which relate to title or description or location or situation of property. It is contended that the documents like statement of accounts are not considered in those judgments. It is further argued that the dispute raised before the Co-operative Court was containing very specific grievance. Court's attention is also invited to grievance as made by the petitioners in paragraph 3 of their dispute. It is contended that 10% of loan amount is required to be invested in the shares of respondent No.1. Society as per bye-laws. It is further stated that disputant made grievance that at the time of disbursement of loan, signatures of disputants were obtained on blank documents without explaining contents thereof. Attention is also invited to discussion in paragraph 4-A of dispute in this respect and it is contended that grievance made is against Shri. Alashi and Shri. Deshpande and not against respondent No.1. The contents of Fixed Deposit Receipts are also pointed out to state that interest at 15.5% was to be compounded quarterly and maturity value is also mentioned in the said document. It is contended that premature encashment of Fixed Deposit Receipts results in reduced rate of interest. It is further contended that there was no question of premature appropriation of these Fixed Deposit Receipts towards loan account. It is further argued that dispute about rate of interest or its quarterly rests has been raised for the first time in writ petition and there was no such dispute before the Co-operative Court or Co-operative Appellate Court and such a dispute cannot be considered for the first time in writ jurisdiction. It is stated that there are no pleadings as required under Order 6, Rule 2 of Civil Procedure Code in this respect. It is repeated by the learned Advocate that only dispute raised before the Co-operative Court was about appropriation of 11 Fixed Deposit Receipts and not accounting of payment of Rs.15,000/- made by the petitioners to Shri. Alashi and Shri. Deshpande. It is argued that the dispute as filed under section 91 of the Act could not have been gone into because adjudication under section 101 of the Act attained finality. It is further stated that in view of the judgment of the learned Single Judge of this Court dated 29-7-2005, the said certificate under section 101 attained finality. It is further argued that plea of bar of jurisdiction has been specifically raised by respondent No.1 before the Co-operative Court and also before the Co-operative Appellate Court. Shri. Samel, Advocate states that accounts were filed in section 101 proceedings and without accounts, recovery certificate could not have been granted. It is further argued that accounts were also furnished to the petitioners during proceedings in their earlier Writ Petition No.2460 of 2005. The attention has been invited to pages 67 to 70 of Writ Petition No.2460 of 2005 in this respect.

8. To substantiate that the earlier adjudication under section 101 of the Act has become final and operated as res judicata, Shri. Samel, Advocate has invited attention to the judgment of Division Bench of this Court in the case of Vasundhara Ashokrao Patil Vs. Rajaram Bapu Sahakari Bank Ltd., reported at 2003(4) Mh.L.J. 315 : [2003(3) ALL MR 393] and Kedarling Vikas Seva Society Ltd. Vs. Dinkar Bhimrao, reported at 2003(1) Mh.L.J. 152 : [2003(1) ALL MR 66]. To show that the petitioners are challenging accounts on new grounds in writ petition and said challenge cannot be entertained, the learned Counsel has placed reliance upon the judgment in the case of Khimji Vidhu Vs. Premier High School, reported at A.I.R. 2000 S.C.W. 2333 : [2000(3) ALL MR 663 (S.C.)]; Ouseph Mathai Vs. M. Abdul Khadir, reported at A.I.R. 2002 S.C. 110; R. P. Sawant Vs. Bajaj Auto Ltd., reported at 2002(1) Mh.L.J. 626; Chairman/Secretary of Institute of Shri. Acharya Ratna Deshbhushan Shikshan Prasarak Mandal Vs. Bhujgonda B. Patil, reported at 2003(3) Mh.L.J. 602 : [2003(2) ALL MR 915] and Kantilal Ravji Mehta Vs. Sayarabai Chhaganlal Kering, reported at 2003(3) Mh.L.J. 52 : [2003(3) ALL MR 988]. To justify the action of respondent No.1 of not prematurely appropriating Fixed Deposit Receipts towards loan account, attention has been invited to Division Bench judgment of this Court in the case of State Bank of India Vs. Neela Ashok Naik, reported at 2000(1) Mh.L.J. 801 : [2000(3) ALL MR 154]. The attention has been invited to statement of account to show that appropriation of amount of Fixed Deposit Receipts has been done properly. Lastly Shri. Samel, Advocate states that the courts below have erroneously held that issue of tenability of dispute under section 91 of the Act stood foreclosed in view of the judgment of this Court in Writ Petition No.2460 of 2005.

9. In reply arguments, the Senior Advocate has contended that the pleadings about correctness of statement of accounts were very much there in dispute and he has taken the Court through dispute as also written statement to point out that respondent No.1. Society also understood its existence. It is stated that though respondent No.1. Society did not lead oral evidence, they tendered necessary documents to justify their action but ultimately could not prove their stand. The attention is also invited to written arguments filed by the petitioners before the Co-operative Court and reliance is placed upon the judgment of the Hon'ble Apex Court in the case of Ram Sarup Gupta Vs. Bishun Narain Inter College, reported at A.I.R. 1987 S.C. 1242, to point out how pleadings are to be construed. About objection to viability of dispute under section 91 of the Act, attention has been invited to the judgment of the learned Single Judge of this Court dated 29-7-2005 and to state that said judgment became final because respondent No.1. Society did not challenge it. It is contended that said judgment cannot be reopened by respondent No.1. Society again in these proceedings. The reliance has been placed upon the judgment of the Hon'ble Apex Court in the case of Authorised Officer (Land Reforms) Vs. M. M. Krishnamurthy Chetty, reported at (1998)9 S.C.C. 138 and Shipping Corporation of India Ltd. Vs. C. L. Jain Wollen Mills, reported at (2001)5 S.C.C. 345 for this purpose. Lastly the learned Senior Advocate for the petitioners has argued that there was failure on the part of the courts below to draw adverse inference. The Statement of Account and evidence of Chartered Accountant of the petitioners could not have been rejected and provisions of sections 79 and 80 Negotiable Instruments Act, could not have been overlooked by the courts below hence there is scope of interference in writ jurisdiction. The learned Senior Advocate has placed reliance upon the judgment of the Hon'ble Apex Court in the case of Vindhyachal Prasad Jaiswal Vs. VIIth Additional District Judge, reported at 1994 Supp.(2) S.C.C. 137 and Ashok Kumar Vs. Sita Ram, reported at (2001)4 S.C.C. 478, to substantiate his stand.

10. In view of the arguments advanced before me, the first and foremost question which falls for consideration is whether dispute under section 91 of the Act was maintainable before the Co-operative Court at the instance of present petitioners against whom an order under section 101 of the Act is also passed. The learned Senior Advocate for petitioners has placed reliance upon the judgment in case of Authorised Officer (Land Reforms) Vs. M. M. Krishnamurthy Chetty (supra). Perusal of this judgment reveals that there the High Court had remanded the matter back to the Authorised Officer for fresh consideration in the light of judgment of High Court in the case of Naganatha Ayyar Vs. Authorised Officer. When the matter was pending before the Authorised Officer, the Hon'ble Apex Court reversed the judgment of High Court in Naganatha Ayyar Vs. Authorised Officer. The Authorised Officer thereafter decided remanded ceiling proceedings in the light of judgment of the Hon'ble Apex Court. The land owner came in revision before the High Court with a stand that order of remand passed by the High Court asking the Authorised Officer to decide the dispute in the light of Naganatha Ayyar Vs. Authorised Officer was not challenged by the Authorised Officer before the Supreme Court and as such said remand order has become final. The land owner contended that the Authorised Officer was duty bound to pass orders in the light of judgment of Naganatha Ayyar Vs. Authorised Officer only. The High Court accepted said contention and then Authorised Officer approached the Hon'ble Apex Court. The Hon'ble Apex Court maintained the order of High Court by observing that the order of remand passed by the High Court attained finality and hence the Authorised Officer was duty bound to consider the position in the light of judgment in the case of Naganatha Ayyar Vs. Authorised Officer, though said judgment was reversed later on by it.

11. In Shipping Corporation of India Ltd. Vs. C. L. Jain Wollen Mills (supra) relied upon by petitioners the Hon'ble Apex Court has considered the question whether in the facts of the case before it, the importer of goods can be made liable to pay demurrage/detention charges. It was undisputed that under the terms and conditions of Bill of Lading, the appellant carrier had a lien over the goods until all the dues were paid and the goods having been kept, not being released, the carrier-Corporation was entitled to charge demurrage charges. Appellant carrier before Hon'ble Apex Court was not party to these proceedings. But in view of the specific directions of the Delhi High Court in writ petition filed by the importer of the goods, challenging the legality of the order of the Customs Authorities in confiscating the goods and levying penalty which reached finality because of dismissal of Special Leave Petition filed against it by the Union of India, the Hon'ble Apex Court has held that (in view of the said directions of Delhi High Court) the liability of importer to pay demurrage charges ceases and the question could not have been reopened.

12. Thus, perusal of both rulings above clearly shows that the question considered therein was not pertaining to inherent lack of jurisdiction. Here, the learned Counsel for respondent No.1 has specifically contended that in view of the provisions of section 101 of the Act read with section 154 and section 163 thereof, dispute under section 91 of the Act was not maintainable. The perusal of judgment of the Division Bench of this Court in the case of Vasundhara Vs. R.B.S. Bank Ltd. [2003(3) ALL MR 393] (supra), particularly paragraphs 5 and 6 support the contentions of respondent No.1. The said paragraphs read as under :

"5. Section 101 was inserted in the statute book by Maharashtra Act 27 of 1969. Intention of the legislature while enacting the provisions of section 101 was to provide a speedy remedy to class of societies referred to in the section against its defaulting members. The section provides summary method of recovery of loan, seasonal finance, subscription etc. of certain types of societies from their members upon the societies furnishing statement of account in respect of the arrears to the Registrar. Sub-section (1) provides that the Registrar may make enquiry in respect thereof and then issue certificate for recovery of arrears. Sub-section (2) empowers the Registrar to take action suo motu if the society fails to take action under sub-section (1). Sub-section (3) provides that the amount of arrears stated in the certificate is final and conclusive proof of the arrears stated therein and the same is recoverable, according to law, for the time being in force, for recovery of land revenue.

6. The opening words of section 101. Notwithstanding anything contained in sections 91, 93 and 98 gives overriding effect to the said section. Therefore, for recovery of loans, sub-scription, seasonal finance etc. it is not necessary for the society to refer the dispute to the Co-operative Court under section 91. The plain reading of section 101 reveals that a special class of societies is carved out who can apply to the Competent Authority under section 101 and those societies alone can obtain recovery certificate in accordance with the said section. The provisions of sections 91 and 101 are separate and distinct and act in different spheres. By virtue of section 101 a summary and speedy remedy has been provided to certain types of societies. Further it is to be noted that by virtue of section 101 finality is attached to the certificate granted by the Registrar under this section. It is, therefore, clear that the certificate issued under section 101 cannot be challenged under section 91. Only remedy of the party aggrieved is to file revision application under section 154 of the Maharashtra Co-operative Societies Act. Section 101 is a speedy remedy to recover the amount and when statute gives finality to the action or order it can be challenged only a manner prescribed by statute. Therefore, a dispute under section 91 would be completely barred. We may mention that two learned Single Judges of this Court have taken a view that certificate under section 101 is final and conclusive and the dispute to challenge the certificate cannot be filed under section 91. See Shri. Kedarling Vikas Seva Society Ltd. Vs. Dinkar Bhimrao Raut and ors., 2003(1) Mh.L.J. 152 : 2003(1) ALL MR 66 and (Bhusawal People's Bank Ltd. Vs. Vijay Ramdas Rane and Ors.), Writ Petition No.2277 of 2001 decided by Naik J. on 30th/31th January, 2002)."

13. The learned Single Judge of this Court in the case of K.V.S. Society Ltd. Vs. Dinkar Bhimrao [2003(1) ALL MR 66] (supra) again takes the similar view. There, after rejection of writ petition, respondent No.1 before the High Court filed dispute under section 91 of the Act for declaration that entry shown in counter was not binding on them and they were not required to pay said amount and further relief that certificate issued under section 101 of the Act against them in respect of said amount should not be allowed to be enforced by the petitioner society. In paragraph 7, the learned Single Judge has concluded that such dispute under section 91 of the Act was barred and hence writ petition filed by the Co-operative society impugning cognizance of such dispute has been allowed.

14. In this respect reference can also be made to Division Bench judgment of this Court in the case of K. V. Sundaram Vs. Raj Rajeshwari Co-operative Housing Society, reported at 1980 Mh.L.J. page 4. There the controversy has been considered in the light of provisions of section 35 of Act which deals with expulsion of member and Rule 29 of Maharashtra Co-operative Societies Rules, 1961, which provides for summary enquiry in the matter of such expulsion. The Division Bench has concluded that in view of the provisions of sections 152, 154 and 163, dispute about the expulsion of member could not have been raised under section 91 of the Act. The Division Bench noticed that decision under section 35 has been made appealable under section 152(4) and said order subject to revision is final. The reference has also been made to revisional jurisdiction under section 154. The provisions of section 91 of the Act with section 149 are also considered by Division Bench. Section 97 providing appeal to Co-operative Appellate Court is also taken into consideration and then provisions of section 149(11) are mentioned to point out finality given to orders passed in the appeal or in revision by Co-operative Appellate Court. The Division Bench has also mentioned section 163(3) which prohibits challenge to orders, decisions or awards in any other Court upon merits or upon any other ground whatsoever. The observations in paragraph 19 of this judgment are important and said observations at page 15 of the report are as under :

"Now, once the Registrar decides whether he will give approval to the Resolution or not and that order is subjected to an appeal, then subject to the provisions of section 154, that order or if there is an appeal, the appellate order will become final, in view of the express provisions of section 154(2). Now, when the finality is given under the Act to certain orders or decisions, then those decisions are not open to challenge under the very Act except in the manner provided by the Act. If the decision rendered in a proceeding under section 35 confirmed or modified under section 152, is allowed to be challenged under section 91, an anomaly will be created. The provisions under section 152(4) will then become otiose. Not only are orders referred to in section 152 given a finality under the Act but they are further made final under section 163(3) of the Act and they cannot be challenged in any Court. There is, therefore, a clear indication in section 152(4) that the orders which are made final under that provision could be subjected to scrutiny only in the revisional jurisdiction under the Act and cannot be subjected to scrutiny or brought into question under any other provision under the Act. Thus notwithstanding the fact that section 91 does not expressly exclude the proceedings under section 35, on a harmonious construction of the provision of sections 35, 152 and 154 on the one side and sections 91, 97 and 149 on the other, will have to be held that each one of these two sets of provisions must independently operate in their own fields and the correctness of the order under section 35 cannot, therefore, be subjected to scrutiny or adjudication in a proceeding under section 91." (emphasis added)

15. It is, therefore, clear that when provisions of Maharashtra Co-operative Societies Act, provide for a remedy of revision and said order has been made final, the petitioners could not have raised any dispute under section 91 of the Act to challenge the recovery certificate issued under section 101 of the Act. However, the petitioners contend that dispute under section 91 of the Act is tenable because of orders of this Court dated 29-7-2005 in Writ Petition No.2460 of 2005. After perusal of judgment of this Court dated 29-7-2005, I am not in a position to accept this argument. After briefly mentioning the facts and rival contentions in first four paragraphs, in paragraph 5 this Court has found that the interest of justice would be met if it is directed that the impugned order should not be given effect to until a decision is given by Co-operative Court in the dispute filed by the petitioners. It is, therefore, apparent that this Court has not quashed and set aside the issuance of recovery certificate in any way or revisional order maintaining it. This Court has also not said anything about tenability of dispute under section 91 of the Act or otherwise. In paragraph 6 of said judgment, this Court has directed the petitioners to furnish bank guarantee of Rs.Three lakhs with Co-operative Court and in paragraph 7 it has been made clear that in default, the recovery certificate would become operative immediately. In paragraph 8, the learned Single Judge has clarified that the Co-operative Court would decide the dispute on its own merits without being influenced by any observations made by any of the authorities. It is, therefore, not possible to interpret this judgment to mean that this Court has permitted proceedings under section 91 of the Act to go on merits and any challenge to those on the ground of tenability of proceedings was foreclosed. The Co-operative Court has not properly considered the observations of the learned Single Judge of this Court in this respect while answering issues No.14 and 15 before it.

16. In the judgment in the case of Ram Sewak Vs. Munnalal, reported at A.I.R. 1988 S.C. 452, the Hon'ble Apex Court has made certain important observations about the concept of res judicata. The Hon'ble Apex Court has noticed its earlier observations in the case of Hazi Abdul Karim Vs. Mohd. Ismail, and found in paragraph 10 that finding only on collateral fact of jurisdiction cannot operate as res judicata in later proceedings between the same parties. The Hon'ble Apex Court notices that even though in previous proceeding a decision of collateral fact about jurisdiction is wrongly given, it is binding on parties for limited purpose i.e. insofar as those proceedings are concerned and it would completely defeat the ends of justice if such erroneous decisions are allowed to become final and perpetuate itself. The Hon'ble Apex Court notices that it would be conducive to ends of justice that in later regular proceedings, parties should not be thwarted on earlier wrong findings and should be afforded full opportunity of demonstrating that condition precedent to the existence of jurisdiction were absent.

17. In the case of A. R. Antulay Vs. R. S. Nayak, reported at A.I.R. 1988 S.C. 1531, in paragraph 189, the Hon'ble Apex Court makes reference to its earlier judgment in the case of Mathura Prasad Vs. Dossibai, and finds that a question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of statute, the Court holds that it has no jurisdiction, it cannot operate as res judicata. Similarly, erroneous decision assuming such jurisdiction cannot operate res judicata between same parties, whether the cause of action in the subsequent litigation is same or otherwise. The Hon'ble Apex Court states that in determining the application of the Rule of res judicata, the Court is not concerned with correctness or otherwise of earlier judgment. The matter in issue, if it is one purely of fact, decided in earlier proceeding by a Competent Court, must in a subsequent litigation between same parties, be regarded as finally decided and cannot be reopened. However, the Hon'ble Apex Court further states that a mixed question of law and fact determined in earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But when question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to Rule of res judicata, a party affected by the decision is not precluded from challenging the validity of that order. The Hon'ble Apex Court states that a Rule of procedure cannot supersede the law of land.

18. Similar view is taken by the Hon'ble Apex Court in the judgment in the case of Life Insurance Corporation of India Vs. M/s. India Automobiles & Co., reported at A.I.R. 1991 S.C. 884, in paragraph 22 and recently in Management of M/s. Sonepat Co-operative Sugar Mills Ltd. Vs. Ajit Singh reported at A.I.R. 2005 S.C. 1050 : [2005(5) ALL MR 427 (S.C.)]. It is, therefore, apparent that there can be no objection of res judicata when question of jurisdiction of Co-operative Court to take cognizance of the matter before it under section 91 of the Act is raised. In view of the facts mentioned above, it is clear that there was no issue in relation to jurisdiction of Co-operative Court under section 91 of the Act before the learned Single Judge in Writ Petition No.2460 of 2005 and there was no need to apply mind to said aspect in that petition. No such arguments either in favour of jurisdiction or against jurisdiction were advanced by any of the parties. It is, therefore, difficult to hold that said judgment of learned Single Judge dated 29-7-2005 in Writ Petition No.2460 of 2005 foreclosed the scrutiny into the question of jurisdiction of Co-operative Court.

19. It is, therefore, apparent that this Court was not inclined on 29-7-2005 to interfere in the orders passed under section 101 of the Act or revisional orders passed by the Divisional Joint Registrar. Those orders, therefore, attained finality and the petitioners could not have got those orders rescinded or modified in any way in their dispute under section 91 of the Act. The errors alleged by petitioners like in accounting or in appropriation or adjustment of F.C.Rs. or share money, failure of Society to prove loan agreement, interest rate stipulated in promissory note and use of quarterly rests are all questions of facts adjudication of which has attained finality. These issues do not permit reopening of orders passed by Taluqa Deputy Registrar on 16-3-2005 and by the Divisional Joint Registrar on 13-5-2005, which formed subject-matter of Writ Petition No.2460 of 2005 dismissed on 29-7-2005. In view of this position, it is apparent that dispute filed by the petitioners before the Co-operative Court at Amravati was itself not maintainable. In view of this finding, it is not necessary for this Court to consider other arguments advanced by respective Counsel in this writ petition.

20. Writ Petition is accordingly dismissed. Rule discharged. However, in the facts and circumstances of the case, there shall be no order as to cost.

Petition dismissed.