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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 1867 OF 2002
Vimal Prashant Salve,
Age 35 years, Occ. Service,
R/o. Manmad, through
General Power of Attorney
Sri Prashant Shripati Salve,
Age 58 years, Occ. Nil
R/o. Vivekanand Nagar, Manmad,
District Nashik ...Petitioner
Versus
1 Kolpewadi Gramin Bigarsheti
Sahakari Patsanstha Maryadit
Kolpewadi, Tq. Kopargaon
District Ahmednagar
2 Jagannath Fakira Deokar,
Age42 years, Occ. Agri
R/o. Takli, Tq. Kopargaon,
District Ahmednagar
3 Ramesh Suryabhan Gaikwad,
Age 29 years, Occ. Agriculture,
R/o. as above.
4 Babulal s/o Dadabhai Shaikh,
Age 35 years, Occ. Agriculture,
R/o. R. No.2 and 3, Kolpewadi,
Tq. Kopargaon, Dist. Ahmednagar ...Respondents
.....
Mr. V.D. Salunke, advocate for the petitioner
None appears for the respondents
.....
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CORAM: S.S. SHINDE, J.
DATE OF RESERVING
THE JUDGMENT : 02.09.2009
DATE OF PRONOUNCING
THE JUDGMENT : 07.09.2009
JUDGMENT:-
1 This writ petition is directed against the order dated 29.4.2002
passed by the Co-operative Appellate Court Mumbai,
ig Bench at
Aurangabad in Misc. Appeal No. 13 of 2002.
2 The background facts of the case as as under:-
The petitioner herein is original opponent No.4 in dispute No.
561 of 2001 filed by the present respondent No.1 before the Co-
operative Court at Kopargaon. The said dispute was filed for recovery
of amount against respondents 2 to 4, whereas the present petitioner
was not made party to the dispute. The petitioner herein has
purchased the Tata Sumo jeep in question from original opponent No.
1, who is present respondent No.2.
The disputant advanced loan for an amount of Rs.1,86,400/- to
opponent No.1 for which the opponent Nos. 2 and 3 are guarantors.
The loan amount was to be repaid in three installments of Rs.55,530/-
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with 21% interest. The opponent No.1, did not pay installment regularly
and on 18.9.1999 he sold vehicle to the present petitioner for an
amount of Rs.2,32,500/- and the transaction was complete.
An agreement between the petitioner and original opponent No.
1 was by party agreement and the disputant was not party to the said
agreement. On 9.7.2001 the disputant filed an application for custody
of the vehicle. The vehicle was recovered from the possession of the
petitioner herein who was not party to that dispute.
On 24.9.1991, the petitioner herein filed application below Exh.
24 for adding him as party opponent No.4. The said application was
allowed. The petitioner filed another application below Exh.26 for
restoration of custody of the vehicle. The Co-operative Court has
allowed the said application and directed the disputant to release and
hand over the custody of the Tata Sumo Jeep bearing No. MH-17-
C-1949 to the present petitioner i.e. opponent No.4 subject to condition
that the opponent No.4 shall deposit Rs.1,00,000/- with the disputant
within a period of six months.
Being aggrieved by the said order, the original disputant filed
appeal before the Co-operative Appellate Court. It is the case of the
present petitioner that the disputant was not aggrieved by order of the
Co-operative Court but he was interested to fix the installments,
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therefore, he filed appeal for modification of the order of the Co-
operative Court praying to direct the petitioner to pay monthly
installment of Rs.20,000/-. The Co-operative Appellate Court passed
the impugned judgment and order on 29.4.2002 directing the petitioner
herein to deposit regularly the remaining amount as per the order of
the lower court till 15.5.2002 and he shall hand over the possession of
the vehicle to the disputant. On failure, the disputant will have right to
recover it through the Court. Hence, this writ petition.
3 Learned counsel appearing for the petitioner submitted that, he
was not party to the original dispute. Therefore, there was no question
of passing any order against him. It is further submitted that the
agreement between the petitioner and owner of the vehicle was not
tripartite agreement and that was agreement between the petitioner
and the owner of the vehicle and therefore, the disputant was not
competent to seek execution of the said agreement. It is further
submitted that the agreement was hire purchase agreement between
the disputant and the borrower and guarantor and the present
petitioner was no way concern with the said agreement. It is further
submitted that the receiver appointed by the Court was suppose to
recover the possession of the vehicle from the custody of original
opponent No.1 and not from the petitioner. However, the court receiver
illegally recovered the possession of the vehicle from the custody of
the present petitioner. It is further submitted that when the original
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claim is not against the present petitioner, the Co-operative appellate
court was not suppose to pass any orders against the present
petitioner. Therefore, learned counsel relying on the pleading and the
grounds in the petition and annexures thereto, has submitted that the
Member, Co-operative Appellate Court has exceeded its jurisdiction
and therefore, the said order deserves to be set aside.
4 Though the respondents are duly served and advocates have
entered their appearances on their behalf, however, none appears for
them. Reply filed by the respondents refers to the higher purchase
agreement and reply to the pleading made in the petition.
5 After hearing counsel for the petitioner and after perusal of the
reply filed by the respondents, I am of the considered view that the
Member, Maharashtra Co-operative Appellate Court has exceeded its
jurisdiction and passed the impugned judgment and order. In fact, the
judgment and order dated 24.9.2001 passed by the Co-operative
Court is an interim order on an application filed by the petitioner
herein. In the said order the petitioners herein was directed to deposit
Rs.1.00 lacs with disputant society within a period of six months from
the date of order and there was further direction to deposit the
remaining amount with disputant society within six months.
6 On careful perusal of the appeal filed by the original disputant, it
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appears that the appellant raised objection about maintainability of the
application filed by the petitioner before the Co-operative Court for
custody of the vehicle. There is also ground in the appeal that the
petitioner herein was opponent No.4, is not part to the original
proceeding. In para 9, the appellant i.e. original disputant has stated
that the learned lower court ought to have directed the opponent No.4
to deposit the amount of Rs.1.00 lacs by monthly installment and it
was also further stated in the said ground that in case amount of Rs.
1.00 lac is not paid within six months by the petitioner, the appellant
society will again have to approach lower court for attachment of the
vehicle and ultimately it was prayed that the impugned judgment and
order may be quashed and set aside.
7 It was open for the co-operative appellate court either to set
aside the order or to reject the appeal. The appellate court exceeded
its jurisdiction and in operative part of the order directed the opponent
No.4 to deposit the remaining amount as per the order of Co-operative
Court upto 15.5.2002 otherwise shall hand over the possession of
disputed vehicle to the disputant and if she fails the disputant will
have right to recover it through the court. So far as the direction to
hand over the possession of the vehicle to disputant or in case of
default in payment, is in excess of jurisdiction exercised by the
appellate court. In fact the appellate court was entertaining the appeal
against the interim order and while entertaining the appeal should
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have kept in mind that the original dispute is pending before the Co-
operative Court and pending original dispute virtually the appellate
court has granted final relief to the disputant by directing the present
petitioner opponent No.4 though he is not added as respondent in
original dispute. Therefore, the impugned judgment and order of the
appellate court is set aside. Writ petition is allowed. Rule made
absolute in the above terms.
8
It will be open for the Co-operative Court to pass necessary
orders in main dispute after hearing the respective parties in
accordance with law.
9 Civil application, if any, stands disposed with.
(S.S. SHINDE, J.)
rlj/
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