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Vishwanath v/s Jai Bharat Matsya Vyavsai Sahakari Sanstha Ltd., Through its Chairman Vithoba Jairam Bedade & Others

    Writ Petition No. 9988 of 2012

    Decided On, 30 July 2021

    At, In the High Court of Bombay at Aurangabad


    For the Petitioner: R.B. Deshmukh, Advocate. For the Respondents: R1, R3 to R6, R8 to R15, R.D. Biradar, R2, A.M. Nagarkar, Advocates.

Judgment Text

1. Rule. Rule made returnable forthwith.

2. By consent of the parties, heard finally at the admission stage.

3. This writ petition under Article 227 of the Constitution of India is preferred by the original disputant against the judgment and award dated 5th December, 2011 in Appeal No. 70/2011 passed by the learned Co-operative Appellate Court (‘Appellate Court’ for short), Mumbai, Bench at Aurangabad, whereby the learned Appellate Court reversed the judgment and order dated 4th November, 2009 passed by the learned Judge, Co-operative Court, Nanded in Dispute No. 142/2003.

4. Facts leading to this writ petition can be succinctly stated as under:-

The petitioner (original disputant) is a member of respondent No. 1- society. Respondents No. 2 to 14 are the Managing Committee members of respondent No. 1-society. Respondent No. 1 carries on the business of fisheries from Gharni project at village Nalegaon.

5. It is further the case of petitioner that on 28th April, 2003, the controlling authority of the said Gharni project demanded advance amount of Rs. 1,66,500/- from respondents No. 1 and 2. Since respondents No. 1 and 2 could not raise this amount, they requested the petitioner to make some arrangement. On their request, petitioner paid Rs. 50,000/- to respondents No. 1 and 2. Respondents No. 1 and 2 also executed a document. It is contended that at the time of accepting payment from petitioner, respondents No. 1 and 2 assured that the said amount would be paid to petitioner after starting fisheries business. After entering into the contract, respondents No. 1 and 2 sold one truck of fisheries for an amount of Rs. 1,05,888/-. Petitioner, thereafter, put forth his demand of Rs.50,000/- which was rejected by respondents No. 1 and 2. It was contended by petitioner that respondents No. 1 and 2 in collusion with respondents No. 3 to 14, did not get audited the accounts of the society for three years. Respondents No. 1 and 2, despite making huge profit, have not distributed the same amongst the members. Therefore, petitioner filed the above dispute before the Co-operative Court, Nanded for recovery of amount of Rs. 50,000/-.

6. Respondents No. 1 and 2 filed their written statement at Exhibit 13 in the record of the Co-operative Court. They denied all the allegations made against them by petitioner. It is their case that petitioner had been expelled from the society on account of his activities which were detrimental to the interest of the society vide resolution No. 3 passed in a meeting convened on 13th April, 2002. This resolution has been confirmed in General Meeting on 15th June, 2002 vide resolution No. 2. Petitioner has not paid subscription to the society despite making repeated demands. They contended that the accounts of the society have been duly audited by the auditor. It is further contended by respondents No. 1 and 2 that this amount of Rs. 50,000/- is shown to be accepted by one Kashinath Vitthal Dhamgaonkar who happens to be the brother of petitioner. No resolution was passed by the society for acceptance of Rs. 50,000/- by the society. Such a transaction has to be supported by resolution of the society. No such resolution is produced on record. On these grounds, they prayed for dismissal of the dispute.

7. The learned Judge of the Co-operative Court partly allowed the dispute rejecting the claim of accounts of the society made by the disputant and allowed payment of Rs. 50,000/- by respondents No. 1 and 2 with interest at the rate of 6% per annum.

8. Respondents No. 1 and 2 assailed this decision before the Appellate Court. The Appellate Court allowed the appeal and dismissed the dispute of the disputant. The learned Appellate Court held that the petitioner could not prove that an amount of Rs.50,000/- was accepted by respondents No. 1 and 2. It has held that agreement was executed by one Kashinath Vitthal Dhamangaonkar and Vithoba Badade. It has further held that these two persons had no authority to enter into any such agreement as it is not supported by any resolution of the society. On this ground, the learned Appellate Court allowed the appeal and dismissed the dispute. Petitioner, by this petition has assailed the legality of the award passed by the Appellate Court.

9. Heard Shri R.B. Deshmukh, learned counsel for the petitioner, Shri R.D. Biradar, learned counsel for respondents No. 1, 3 to 6, 8 to 15 and Shri A.M. Nagarkar, learned counsel for respondent No. 2.

10. Learned counsel Shri Deshmukh submitted that the said agreement was proved before the Co-operative Court. From the said agreement, it is evident that the agreement was executed by said Dhamangaonkar in his official capacity as Secretary. He submitted that the learned Co-operative Court was, therefore, perfectly justified in allowing the dispute. He submitted that Kashinath Dhamangaonkar was the Secretary of respondent No. 1 – society at the relevant time. Therefore, he acted in his official capacity as Secretary and accepted Rs. 50,000/- for and on behalf of the society. He submitted that respondents No. 1 and 2 despite accepting such a huge amount are denying liability with the oblique motive of duping the petitioner. He, therefore, prayed to allow the petition.

11. Respondents No. 1 and 2 supported the impugned order.

12. It appears that before accepting the amount of Rs. 50,000/-, no resolution seems to have been passed by respondent No. 1 – society. Therefore, the action of the office bearer of the society who entered into the alleged agreement with petitioner cannot be said to be for and on behalf of the society. Respondent No. 1 – society has specifically denied that it had received any such amount from the petitioner. It was, therefore, a bunden duty of the petitioner to produce resolution to that effect indicating therein that the society had authorised the said office bearer to enter into an agreement with petitioner for and on behalf of the society. As indicated above, no such resolution is forthcoming.

13. Whenever any payment is made to the society, receipts are passed by the society to tha

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t effect. If really any such transaction has taken place for and on behalf on the society, the society must have passed the receipt. Petitioner ought to have produced receipt to buttress his claim that the amount was paid to the society. In the absence of any such evidence, it cannot be said that the amount was received by the society. Therefore, the learned Appellate Court was perfectly justified in reversing the judgment and award passed by the learned Co-operative Court. No fault can be found with the order passed by the learned Appellate Court. In this view of the matter, writ petition is devoid of any substance. Hence, it is dismissed with no order as to costs. Rule discharged.