DISPUTES AND CO-OPERATIVE COURTS
75.
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Reference of Dispute:-
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A reference
of a dispute under Section 91 shall be
made in writing to the Registrar in Form P. Wherever necessary, the
Registrar may require the party referring the dispute to him to produce a
certified copy of the relevant records on which the dispute is based and such
other statements or records as may be required by him, before proceeding with
the consideration of such reference.
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76.
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Registrars
satisfaction regarding existence of a dispute:-
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Where any reference of a dispute is made to
the Registrar or any matter is brought to his notice, the Registrar shall, on
the basis of the reference (if any) made to him in Form P and the relevant
records and statements submitted to him, record his decision together with
the reasons therefore, whether he is or is not satisfied about the existence
of a dispute within the meaning of Section 91. Such recording of decision
shall be sufficient proof of the Registrars satisfaction that the matter is
or is not a dispute, as the case may be.
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77.
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Disposal of
a dispute or reference to Co-operative Court:-
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(1)
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Where the Registrar is satisfied that there
is a dispute, the Registrar may decide the dispute himself or refer it for
disposal to a Co-operative Court having jurisdiction.
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(2)
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Neither the
Registrar nor the Co-operative Court shall take up for consideration any
dispute, unless the parties concerned comply with the conditions of affixing
the necessary Court-fees for determining the dispute.
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77-A.
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Qualifications
of Judges of Co-operative Courts, and their appointment:-
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(1)
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The member constituting a Co-operative Court shall be called the Judge
of that Court.
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(2)
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All appointments of Judges of the Co-operative Courts shall be made by
the State Government.
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(3)
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No person shall ordinarily be eligible for appointment as a Judge of a
Co-operative Court, unless he is holding or
has held a judicial office not lower in rank than that of Civil Judge (Junior
Division).
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(4)
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Notwithstanding
anything contained in sub-rule (3), the State Government may appoint a person
to be a Judge of a Co-operative Court;-
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(a)
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who has
practiced as an Advocate, Pleader or Vakil for not less than three years; or
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(b)
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who is enrolled as an Advocate or holds a degree or other
qualification in law of any University established by law or of any other
authority which entitles him to be enrolled as an Advocate, and either (i)
has held office not lower in rank than that of Deputy Registrar of
Co-operative Societies for not less than five years, or (ii) possesses good knowledge and experience of co-operative law and
Practice.
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The number
of Judges appointed under this sub-rule shall, at no time, as far as
possible, exceed two-third of the total number of Judges of the Co-operative
Courts.
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77-B.
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Age limit
for Judges:-
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(1)
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No person
shall hold or continue to hold the office
of Judge of Co-operative Court after he attains the age of sixty-two years.
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(2)
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Notwithstanding
anything contained in sub-rule (1), the State Government may, for such period
or periods as it considers necessary, continue all or any of the Officers on
Special Duty as Judges of the Co-operative Courts, who were holding office as
such officers immediately before this rule comes into force and who are
otherwise qualified to be Judges of the Co-operative Courts.
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77-C.
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Conditions
of service of Judges:-
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If a Judge
of a Co-operative Court is in Government
service at the time of his appointment, his pay, allowances and other
conditions of service shall continue to be governed by the service conditions
rules applicable to him before such appointment, and if he is a direct
recruit his pay, allowances and other conditions of service shall be governed
by the Bombay Civil Services Rules and other rules made by the State
Government from time to time.
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77-D.
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Holidays and
Vacations:-
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Save as
otherwise directed by the State Government,
the holidays to be observed in the Co-operative Courts shall be the same as
are observed in the local Government offices. The period of vacation (if any)
for the Co-operative Courts shall be such as the State Government may
determine.
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77-E.
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Procedure for hearing and decision
of disputes:-
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(1)
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The
Registrar or the Co-operative Court shall record in English, Marathi or Hindi
the evidence of the parties to a dispute and the witnesses who attend. Upon
the evidence so recorded and upon consideration of any documentary evidence
produced by the parties, a decision-shall be given, by him or it in writing.
Such decision shall be pronounced in open Court, either at once or as soon as
may be practicable on some future day, of which due notice shall be given to
the parties.
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(2)
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Where either
party appears when the dispute is called on for hearing, the Registrar or the
Co-operative Court may make an order that it be dismissed for default.
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(3)
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Where the
opponent appears and the disputant does not appear when the dispute is called
on for hearing, the Registrar or the Court may make an order that the dispute
be dismissed, unless the opponent admits the claim or a part thereof, in which
case the Registrar or the Court, as the case may be, may make an order
against the opponent upon such admission and where, part only of the claims
is admitted, may dismiss the dispute so far as it relates to the remainder.
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(4)
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Where the
disputant appears and the opponent does not appear when the dispute is called
on for hearing, then, if the Registrar or the Court is satisfied from the
record and proceedings that the summons was duly served, the Registrar or the
Court may proceed ex-parte. Where the summons is served by the officer of the
Registrar or the Court, he shall make his report of service on oath.
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(5)
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The
Registrar or the Court may not ordinarily grant more than two adjournments to each party to the dispute at its request. The
Registrar or the Court may, however, at his or its discretion grant such
further adjournments on payment of such costs to the other side and such fees
to the Registrar or the Court as the Registrar or the Court, as the case may
be, may direct.
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(6)
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Any party to
a dispute may apply for and obtain a certified copy of any order, judgment or
award made by the Registrar or the Court on payment of copying fees at the
rate of 50 paise per 100 words in such order, judgment or award, whether in
English, Marathi or Hindi.
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77-F.
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Summary procedure for deciding
disputes:-
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(1)
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Subject to
the provisions of sub-section (4) of Section 94, the following disputes, if
the disputant so desires, shall be decided in the summary manner prescribed
under this rule, namely :—
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(a)
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any dispute for recovery of debt upon promissory note, hundi, bill of
exchange or bond, with interest where agreed upon under such instrument or
under the by-laws;
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(b)
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any dispute for recovery of a fixed sum of money, in the nature of a
debt, with or without interest, arising on a written contract, but other than
penalty or on guarantee;
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(c)
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any dispute for recovery of price of goods sold and delivered, where
the rate, quality and quantity are admitted in writing;
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(d)
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any dispute
for recovery of dues payable in respect of a tenement by a member of a
housing society towards contribution for construction of the tenements in
respect of repayment of any loan, interest on loan, ground rent, local
authority taxes, sinking fund, water charges, electric charges, repairs,
maintenance and upkeep charges or charges for other services rendered by the
society and the interest on such arrears payable under a written agreement or
the by-laws or the tenancy regulations.
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(2)
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In such
cases, the disputants shall, in addition to the normal averments in Form P,
make the following averments, namely ;—
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(a)
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that the
claim of the disputant is for recovery of liquidated sum of money only and no
other relief beyond the scope of this rule is claimed in this dispute;
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(b)
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that the
disputant believes that there is no valid or bona fide defense to his claim.
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(3)
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In such
cases, the opponent shall not be entitled to defend the claim, and the
disputant shall be entitled to the award in his favour as prayed and for such
sum for costs as may be awarded by the Registrar or the Court.
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(4-i)
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Within ten
days from the service of a notice calling upon the opponent to obtain leave
from the Registrar or the Court, to appear and defend the claim, the opponent
or such of the opponents as are interested in defending the claim shall apply
to the Registrar or the Court, as the case may be, by an affidavit or a
declaration for the leave, setting out the facts on which he relies and what
triable issues are likely to arise. The opponent shall in such application
disclose all the documents supporting his contention and as far as possible
attach copies of such documents which he considers important from his point
of view. A copy of such application shall be served on the disputant and he
shall have a right to file a rejoinder in the form of an affidavit or declaration
and place before the deciding authority such material as in his opinion
supports his contentions.
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(ii)
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The
Registrar or the Court, on reading the affidavits and declarations and on
hearing the parties and their pleading and considering the documents relied
on and produced by them, may pass an award or grant leave to defend to such
of the opponents, unconditionally or upon such conditions, as the deciding
authority may think fit under the circumstances and on facts of the case. The
Registrar or the Court granting leave to defend shall also give directions
and prescribe time limit for filing the written statement and fix the date
for hearing. Leave may be granted to some and may be refused to other
opponents. If leave is granted and not complied with by any opponent, the
deciding authority may pass an award against him, as if he had not been
granted leave.
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(iii)
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If the conditions on which leave to defend is granted are not complied
with by any opponent, the Registrar or the Court may pass an award against
him, as if he had not been granted leave.
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(iv)
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The Registrar or the Court may, for sufficient case, excuse the delay
in applying for leave to defend any case.
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(v)
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The Registrar or the Court may, under special circumstances, set aside
the award, and if necessary stay or set aside execution, and may give leave
to the opponent to appear and defend the dispute, if it seems reasonable to
the deciding authority so to do, and on such terms as it thinks fit.
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78.
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Summons,
notices and fixing of dates, place, etc. in connection with the disputes:-
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(1)
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The Registrar or as the
case may be, the Co-operative Court, may
issue summons or notices at least fifteen days before the date fixed for
hearing of the dispute requiring;—
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(i)
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the attendance of the parties to the dispute and of witnesses if any;
and
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(ii)
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the production of all books and documents relating to the matter in
dispute.
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(2)
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Summons or notices issued by the Registrar or the Co-operative Court
may be served through a Mamlatdar, Mahalkari, Tahsildar or any employee of
the Co-operative Department or of a federal society or through the Chairman
or Secretary of the Society or by registered post with acknowledgement due. Every
person or society to whom summons or notices are sent for service shall be
bound to serve them within a reasonable time.
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(3)
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The officer
serving a summons or notice shall, in all cases in which summons or notice
has been served, endorse or annex or cause to be endorsed on or annexed to,
the original summons or notice, a return stating the time when and the manner
in which, the summons or, as the case may be, notice was served and the name
and address of the person (if any) identifying the person served and
witnessing the delivery or tender of the summons or the notice.
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(4)
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The officer
issuing the summons or notice may examine the serving officer on oath or cause
him to be so examined by the Mamlatdar or other officer through whom it is
served and may make such further inquiry in the matter as he thinks fit; and
shall either declare that the summons or, as the case may be, notice has been
duly served or order it to be served in such manner as he thinks fit.
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(5)
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The mode of
serving summons and notices as laid down in sub-rules (1) to (4) shall
mutatis mutandis apply to the service of summons or notices;—
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(i)
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issued by the Registrar or the person authorised by him, when acting
under Section 83, 84 or 88;
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(ii)
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issued by an Auditor, when acting under Section 81, or
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(iii)
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issued by a Liquidator, when acting under Section 105.
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79.
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Investigation of claims and objections against any attachment:-
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Where any claim or objection has been
preferred against the attachment of any property under Section 95, on the
ground that such property is not liable to such attachment, the Registrar, or,
as the case may be, the Co-operative Court shall investigate into the claim
or objection and dispose it of on merits :
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Provided
that no such investigation shall be made when the Registrar or the
Co-operative Court considers that the claim or objection is frivolous.
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80.
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Procedure for the custody of
property attached under Section 95: -
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(1)
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Where the
property to be attached is moveable property, other than agricultural produce,
in the possession of the debtor, the attachment shall be made by actual
seizure and the attaching officer shall keep the property in his own custody
or in the custody of One of his subordinates, or of a Receiver, if one is
appointed under sub-rule (2) and shall be responsible for the due custody
thereof :
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Provided
that, when the property seized is subject to speedy and natural decay, or
when the expense of keeping it in custody is likely to exceed its value, the
attaching officer may sell it at once.
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(2)
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When it appears to the officer ordering conditional attachment under
Section 95 to be just and convenient, he may
appoint a Receiver for the custody of the moveable property attached under
that section and his duties and liabilities shall be identical with those of
a Receiver appointed under Order XL in the First Schedule to the Code of
Civil Procedure, 1908.
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(3-i)
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Where the
property to be attached is immovable, the attachment shall be made by an
order prohibiting the debtor from transferring or charging the property in
any way and all persons from taking any benefit from such transfer or charge.
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(ii)
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The order
shall be proclaimed at some place on, or adjacent to, such property by beat
of drum or other customary mode, and a copy of the order shall be fixed on a
conspicuous part of the property and upon a conspicuous part of the village
chavdi, and where the property is land paying revenue to the State
Government, also in the office of the Collector of the district and in the
office of the Mamlatdar or Mahalkari or Tahsildar or any other revenue
officer within whose jurisdiction the property is situated.
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81.
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Procedure
for attachment and sale of property for realization of any security given by
person in course of execution proceedings:-
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The procedure laid down
in Rules 80 and 83 shall mutatis mutandis apply for attachment and sale of
property for the realization of any security given by a person in the course
of execution proceedings.
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82.
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Issue of proclamation prohibiting private transfers of property:-
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The Registrar or
Liquidator when acting under clause (a) of Section 98 shall, at the time of
signing a certificate affecting any property, issue a proclamation in Form Q
and in the case of immovable property shall also forward a copy of the
proclamation to the Mamlatdar, Mahalkari or Tahsildar or any other revenue
officer within whose jurisdiction the property is situated, who shall cause
an entry about such certificate to be made in the Record of Rights.
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83.
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Procedure
for execution of awards:-
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(1)
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Every order or award passed by the Registrar, or the person authorised by him or the Co-operative
Court under Section 95 or 96 shall be forwarded by the Registrar to the
society or to the party concerned with instructions that the society or, as
the case may be, the party concerned should initiate execution proceedings
forthwith according to the provisions of Section 98.
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(2)
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If the amount due under the award is not forthwith recovered, or the
order there under is not carried out, it shall be forwarded to the Registrar
with an application for execution along with all information required by the
Registrar, for the issue of certificate under Section 98. The applicant shall
state whether he desires to execute the award by a civil or through the
Collector as provided under Section 98 or through the Registrar as provided
under Section 156.
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(3)
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On receipt of such application for execution, the Registrar shall
forward the same to the proper authority for execution along with a
certificate issued by him under Section 98 and a proclamation issued under
Rule 82 in the matter prescribed therein.
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(4)
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Every order
passed in appeal under Section 97 shall also be executed in the manner laid
down in sub-rules (2) and (3).
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84.
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Execution of
awards or orders in special cases:-
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Subject to
the provision of Section 98,
the Registrar may, by an order in writing specially authorise any officer of
the Co-operative Department or any officer of a federal society or a Central
Bank, on an application made by it, to call for and send awards or orders
obtained by any society for execution. The society or societies in respect of
which these powers are to be exercised shall be specified in the order.
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85.
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Transfer of
property which cannot be sold:-
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(1)
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When in
execution of an order sought
to be executed under Section 98 any property cannot be sold for want of
buyers, if such property is in the possession of the defaulter or of some
person on his behalf, or of some person claiming it under a title created by
the defaulter subsequent to the issue of the certificate by the Registrar or
Liquidator under clause (a) or (b) of the said section, the officer
conducting the execution shall as soon as practicable report the fact to the
Court or the Collector or the Registrar, as the case may be, and the society
applying for the execution of the said order.
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(2)
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On receipt
of a report under sub-rule (1), the society may, within six months from the
date of the receipt of the report or within such further period as may for
sufficient reasons be allowed in any particular case by the Court or the
Collector or the Registrar, submit an application in writing to the Court,
the Collector or the Registrar, as the case may be, stating whether or not it
agrees to take over such property.
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(3)
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On receipt
of an application under sub-rule (2), notices shall be issued to the
defaulter and to all persons known to be interested in the property,
including those whose names appear in the Record of Rights as persons holding
any interest in the property, about the intended transfer.
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(4)
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On receipt
of such a notice, the defaulter, or any person owning such property, or
holding an interest therein by virtue of a title acquired before the date of
the issue of a certificate under Section 98, may, within one month from the
date of the receipt of such notice, deposit with the Court or the Collector
or the Registrar, for payment to the society a sum equal to the amount due
under the order sought to be executed together with interest thereon and such
additional sum for payment of costs and other incidental expenses as may be
determined in this behalf by the Court or the Collector or the Registrar, as
the case may be.
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(5)
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On failure
of the defaulter, or any person interested, or any person holding any
interest in the property, to deposit the amount under sub-rule (4), the Court
or the Collector or the Registrar, as the case may be, shall direct the
property to be transferred to the society on the conditions stated in the
certificate in Form “R”.
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(6)
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The certificate granted under sub-rule (5) shall state whether the
property is transferred to the society in full or partial satisfaction of the
amount due to it from the defaulter.
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(7)
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If the property is transferred to the society in partial satisfaction
of the amount due to it from the defaulter, the Court or the Collector or the
Registrar, as the case may be, shall, on the production by the society of a
certificate signed by the Registrar, recover the balance
due to the society in the manner laid down in Section 98.
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(8)
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The transfer of the property under sub-rule (5) shall be effected as
follows :—
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(i)
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In the case of moveable property;—
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(a)
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Where the property is in the possession of the defaulter himself or
has been taken possession of on behalf of the Court or the Collector or the
Registrar, it shall be delivered to the society.
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(b)
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Where the property is in the possession of some person on behalf of a defaulter,
the delivery thereof shall be made by giving notice to the person in
possession, directing him to give actual peaceful possession to the society,
and prohibiting him from delivering possession of the property to any other
person.
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(c)
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The property
shall be delivered to a person authorised by the society to take possession
on behalf of the society.
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(ii)
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In the case of immovable property:—
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(a)
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Where the property is growing or standing crop, it may be delivered to
the society before it is cut and gathered and the society shall be entitled to enter on the land, and to do all that is necessary for the
purpose of tending and cutting and gathering it,
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(b)
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Where the property is in the possession of the defaulter or of some person on his behalf or some person claiming under a title created by
the defaulter subsequent to the issue of a certificate under Section 98, the
Court of the Collector or the Registrar, as the case may be, shall order
delivery to be made by putting the society or any person whom the society may
appoint to receive delivery on its behalf in actual possession of the
property and if need be, by removing any person who illegally refuses to
vacate the same.
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(c)
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Where the property is in the possession of a tenant or other person entitled to hold the same by a title acquired before the date of issue
of a certificate under Section 98. the Court or the Collector or the
Registrar, as the case may be, shall order delivery to be made by affixing a
copy of the certificate of transfer of the property to the society in some
conspicuous place on the property and proclaiming to such person by beat of
drum or other customary mode at some convenient place, that the interest of
the defaulter has been transferred to the society.
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(9)
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The society shall be required to pay expenses incidental to sale
including the cost of maintenance of livestock, if any, according to such
scale as may be fixed by the Registrar from time to time.
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(10)
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Where land is transferred to the society under sub-clause (a) of
clause (ii) of sub-rule (8) before a growing or standing crop is cut and
gathered, the society shall be liable to pay the current year's land revenue
on the land.
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(11)
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The society shall forthwith
report any transfer of property under sub-clause (b) or (c) or clause (ii) of
sub-rule (8) to the village accountant for information and entry in the
Record of Rights.
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(12)
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The society
to which property is transferred under sub-rule (5) shall maintain for each
such defaulter a separate account showing all the expenses incurred including
payment to outside encumbrances, land revenue and other dues on the property
and all the income derived from it.
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(13)
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The society
to which property is transferred under sub-rule (5) shall use its best
endeavor to sell the property as soon as practicable to the best advantage of
the society as well as that of the defaulter, the first option being always
given to the defaulter who originally owned the property. The sale shall be
subject to confirmation of the Registrar. The proceeds of the sale shall be applied
to defraying the expenses of the sale and other expenses incurred by the
society and referred to in sub-rules (9) and (12) and to the payment of the
arrears due by the defaulter under the order in execution and the surplus (if
any) shall then be paid to the defaulter.
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(14)
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Until the
property is sold, the society to which the property is transferred under
sub-rule (5) shall use its best endeavors to lease it or to make any other
use that can be made of it so as to derive the largest possible income from
the property.
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(15)
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When the
society to which property is transferred under sub-rule (5) has realized all
its dues, under the order in execution of which the property was transferred
from the proceeds of management of the property, the property, if unsold,
shall be restored to the defaulter.
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86.
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Payment of
fees for decisions of disputes:-
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(1)
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The Registrar
or the Co-operative Court, as the case may be, may take a dispute on file
only if the application regarding reference for such dispute in Form P is
affixed with the court-fee stamps at the following scales, namely :—
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Proper
Court Fee Rs.
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(i)
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Simple money claims;—
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(a)
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When the
amount of the claim in dispute does not exceed Rs. 5,000
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100
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(b)
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When such
amount exceeds Rs. 5,000 but does not exceed Rs. 1,00,000.
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... Rs. 100
plus one percent of the amount of claim in dispute subject to the maximum of
Rs. 1,000.
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(c)
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When such
amount exceed Rs. 1,00,000
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... Rs.
1,000 plus 1/2 percent of the amount of claim dispute subject to the maximum
of Rs. 10,000
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(ii)
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Complicated money
claims:-
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(a)
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When the
amount of the claim in dispute does not exceed Rs. 5,000.
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200
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(b)
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When such
amount exceeds Rs. 5,000 but does not exceed Rs. 1,00,000.
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... Rs. 200
plus two percent of the amount of claim in dispute subject to the maximum of
Rs. 2,000.
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(c)
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When such
amount exceed Rs. 1,00,000
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... Rs.
2,000 plus 1 percent of the amount of claim dispute subject to the maximum of
Rs. 15,000.
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(iii)
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Application,
appeal, review and revision applications presented
before the concerned authority or Court under sections 23, 35, 97, 149,
150,152 and 154.
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Rs.100
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(iv)
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Application
under sub-section (1) of section 101 for recovery as arrears of land revenue.
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As per
entries (i) and (ii) as above
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(v)
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Processing Fee for respondent in respect of application, appeal, petition, review and revision,
application, etc., presented before the concerned authority or court.
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Rs. 50 per
respondent
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(vi)
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All other dispute under section
91(excluding money claim).
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Rs. 1000
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Explanation: — For the purposes of this
sub-rule, "simple money claim" means the claims of a society the object clauses of which provide for
sanction of credit to its members, based on loan bonds, promissory notes,
admissions or acknowledgements; and "complicated money claims"
means all money claims other than simple money claims. The question regarding
the classification of a dispute for the purposes of this sub-rule shall be
decided by the Registrar or the Co-operative Court deciding the dispute, and
the decision of the Registrar or the Co-operative Court, as the case may be,
shall be final.
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(2)
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No document
of any of the kinds specified below shall be filed before the Registrar or
the Co-operative Court, unless it is affixed with the proper court-fee stamp
as specified against it:-
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Proper Court Fee Rs.
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(i)
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Vakalatnama
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10
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(ii)
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Application for adjournment
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10
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(iii)
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Application for interim stay or
relief
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100
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(3-a)
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The
Registrar or the Co-operative Court deciding any dispute may require the
party or parties to the dispute to deposit such sum as may, in his or its
opinion, be necessary to meet the expenses, including payment of fees to the
Registrar or the Court, as the case may be.
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(b)
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The
Registrar or the Court shall have power to order the fees and expenses of
determining the dispute to be paid by the society out of its funds or by such
party or parties to the dispute, as he or it may think fit, according to the
scale laid down by the Registrar, after taking into account the amount
deposited as above.
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(c)
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The
Registrar may by general or special order specify the scale of fees and
expenses to be paid to him or the Co-operative Court.
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