KRISHNANATH NANASAHEB DESHMUKH Vs. S B KULKARNI

JUDGEMENT

(1.) At an election held for membership of the Board of Directors of the Sholapur District Central Co-operative Bank Ltd, the petitioner was declared elected from constituency No. 11 known as Barsi Constituency, he having secured 100 votes as against respondent No. 3 who had secured only 5o votes. Respondent No. 3 along with respondent No. 2 who was a voter in the constituency challenged the election of the petitioner by an election petition under section 144.I of the Maharashtra Co-operative Societies Act, 1960, on the ground that the petitioner was in arrears of Rs. 2309.64 which were due by him to Sarva Vyavasayi Shri Bhagwant Sahakari Puravatha Mandali Ltd., Barsi (hereinafter referred to as the "Bhagwant Society"). The election petition was tried by the Commissioner, Poona Division, who came to a finding that on the material date, the petitioner was in arrears of the amount of Rs. 2309.64 to the Bhagwant Society. The petitioner's case that the said amount was already repaid by him was rejected on evidence and that finding is not challenged in these proceedings. The relevant clause with reference to which the disqualification of the petitioner had to be determined is clause (a) of Rule 58 (1) of the Maharashtra Co-operative Societies Rules. 1961 (hereinafter referred to as "the Rules"). Rule 58(1)(a) of the Rules reads as follows :

(2.) The contention raised on behalf of the petitioner by Dr. Naik is that the clause (a) relating to disqualification does not use the word 'defaulter' which is admittedly wide in its content but that what is required for the purpose of rule 58(1)(a) was that the petitioner must be in default in respect of dues from him either as a borrower or as a surely. According to the learned counsel, this necessarily contemplates the operation of the rule of disqualification only incase thetrans crion is a loan transaction and that rule 58(1)(a) is not attracted in the case of dues outstanding on account of commercial transaction relating to sale of articles like fertilizers.

(3.) Neither respondent No. 2 who as a voter bad exercised his right to challenge the election of the petitioner nor respondent No. 3 who was originally the defeated candidate but was duly declared elected by the Commissoner have appeared in these proceedings. However, it appean. that yesterday, an affidavit found its way on the table of the Superintendent of the Special Civil Application Branch of this Court which is sworn by respondent No. 3 stating that he was persuaded to file the election petition by respondent No. 2 but that "I am now convinced that the decision of the respondent No. 1 challenged in the present petition cannot be sustained in view of the decision of the Supreme Court in Veerpalsing v. Co-op. Societies, Meerut. He further states that he should be permitted to withdraw the election petition filed by him and the order of the Commissioner should be set aside, The original election petition having been filed by respondent No. 2 also, prayer of respondent No 3 for withdrawal of the original petition would not by itself result in vacating the order passed by the Commissioner in the exercise of his statutory jurisdiction. Since respondent No, 2 has not appeared, we have heard Dr. Naik on behalf of the petitioner and Mr. Mandlik who appears on behalf of respondent No. 4.