Bombay High Court
KAMALNAYAN JAVERIversusSTATE OF MAHARASHTRA THR. GOVERNMENT PLEADER AND ORS
- Decided
- Disposal
- Disposed Off
- Bench
- AMIT BORKAR
Holding
A party cannot introduce a new factual defence before a writ court that was not presented to the original authority, and any payments made after issuance of a recovery certificate must be adjusted against the dues, leaving no basis to set aside the recovery.
Summary
The petitioners challenged a recovery action initiated by their cooperative society under Section 154-B(29) of the Maharashtra Cooperative Societies Act, alleging that the society maintained two inconsistent sets of accounts which inflated their liability. They also contended that they had made payments after the issuance of a recovery certificate under Section 101, which should have been credited. The Court observed that the petitioners had not raised the account inconsistency before the original authority, and a tribunal cannot consider issues not previously presented. Consequently, the alleged inconsistency was deemed a factual dispute that should have been raised at the earliest stage. The Court clarified that any post‑certificate payments must be adjusted against the outstanding dues, and no further ground existed to interfere with the recovery. The petitions were therefore dismissed.
Issues considered
- Whether a factual defence concerning inconsistent account statements, not raised before the original authority, can be entertained by a writ court.
- Whether the recovery certificate issued under Section 154-B(29) and Section 101 remains valid despite subsequent payments by the members.
- Whether the original authority erred by not addressing the alleged account inconsistencies.
Legislation cited
- Maharashtra Cooperative Societies Act — s. 101, 154-B(29)
Subjects
- cooperative societies
- recovery of dues
- account discrepancy
- section 154-B
- section 101
- judicial review
- factual dispute
- procedural law
Judgment
46-47-WP-16059-25+final.doc
Sayali
SAYALI IN THE HIGH COURT OF JUDICATURE AT BOMBAY
DEEPAK CIVIL APPELLATE JURISDICTION
UPASANI
Digitally signed by
SAYALI DEEPAK
UPASANI
WRIT PETITION NO.16059 OF 2025
Date: 2026.02.17
19:34:28 +0530
Jineshwari H Javeri … Petitioner
V/s.
State of Maharashtra and Others … Respondents
AND
WRIT PETITION NO.16060 OF 2025
Kamalnayan Javeri … Petitioner
V/s.
State of Maharashtra and Others … Respondents
Mr. Rajesh P. Khobragade, with Mr. Akash Tayade, for
Petitioners in both Petitions.
Ms. Shrivastava, AGP, for Respondent in WP
No.16059/2025.
Ms. A. A. Purav, AGP for Respondent in WP
No.16060/2025.
CORAM : AMIT BORKAR, J.
DATED : FEBRUARY 17, 2026
P.C.:
1. Both matters come from the same type of proceeding. The
society invoked Section 154-B(29) of the Maharashtra
Cooperative Societies Act to recover dues from its members. The
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46-47-WP-16059-25+final.doc
petitioners have approached this Court questioning the
correctness of that recovery action. Since the factual background,
statutory provision and challenge are common, both petitions are
decided together.
2. The main objection of the petitioners is about the accounts
maintained by the society. According to them, the society keeps
two different statements of accounts and they do not match. On
that basis, they argue that the liability fixed upon them is inflated
and not legally recoverable. They also state that from time to
time they paid several amounts to the society. Even after the
recovery certificate was issued under Section 101, they continued
to deposit money. Therefore, according to them, the amount
demanded is excessive and the recovery action should fail.
3. When this Court examines such a challenge, the first
question is whether this dispute was actually placed before the
authority which passed the order. The record shows that the
petitioners had filed a written reply before the first authority on
17 June 2019. In that reply, they did not complain about
existence of two different account statements. There was no
specific plea that the society’s accounts were inconsistent or
legally defective. An authority can only decide issues that are
raised before it. It cannot investigate new facts on its own. Since
this point was never urged before the authority, the authority had
no occasion to examine it. The present plea therefore appears to
be raised for the first time in these petitions.
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4. The alleged inconsistency in accounts is purely a factual
dispute. Such a defence must be taken at the earliest stage so that
the authority can verify records, call for documents and give
findings. A party cannot remain silent before the authority and
later attempt to build a new case in writ jurisdiction. Judicial
review does not permit improvement of facts at a later stage.
Therefore the authority committed no error in not dealing with a
contention that was never placed before it.
5. However, the petitioners also state that they deposited
certain amounts after issuance of the recovery certificate. On that
aspect, the legal position is clear. Whenever a member deposits
any amount after a certificate under Section 154-B(29) or Section
101 is issued, the society must give proper credit to that payment
and adjust it against the outstanding dues. Recovery can continue
only for the remaining balance, if any.
6. With this clarification regarding adjustment of payments,
no ground remains to interfere with the recovery proceedings.
The petitions therefore do not require further examination and
stand dismissed.
(AMIT BORKAR, J.)
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