S.U. Kamdar, J.
1. The petitioner is challenging the constitutional validity of the provisions of Section 134 (2A) as amended by the Amending Act Maharashtra, 41 of 2000. Under the provisions of the Sub-section (2A) it is provided that no application for revision shall be entertained against the recovery certificate issued by the Registrar under Section 101 unless the applicant deposits with the concerned society, fifty percent, of the total amount of recoverable dues.
2. These provisions of Sub-section (2A) of Section 154 are challenged by the petitioner in the context of the facts which are briefly enumerated as under:-
3. A firm known as M/s. Gajanankrupa Enterprises availed of the loan facilities from the 1st respondent Bank. The petitioner before the Court was a partner of the said 2nd respondent firm. It is the case of the petitioner that with effect from 20.8.1991 the petitioner retired from the said firm and thus ceased to be a partner any further. However, it is an admitted position that at the relevant time of granting the loan to the said partnership firm, the petitioner was a partner in the said firm. Sometime in or about 1998, the 2nd respondent firm filed a dispute under Section 91 of the Maharashtra Cooperative Societies Act for the recovery of the dues and by an order dated 8.2.2000 the respondents in the said dispute including the firm were directed to pay a sum of Rs. 34,91,630/- with further interest on the principal sum of Rs. 15 lacs. Accordingly, a certificate for recovery has been issued under Section 101 of the Maharashtra Cooperative Societies Act for recovery of sum of Rs. 34,91,630/-. It is the case of the petitioner that on 11.12.2002 a notice was served on the petitioner under Rule 107 of the Maharashtra Cooperative Societies Rules, 1961 and the recovery certificate is sought to be enforced against the assets of the petitioner. On 17.12.2002, the petitioner sought for a certified copy of the said recovery certificate, however, the same was not furnished and ultimately the petitioner received a Xerox copy of the certificate dated 18.2.2000. The petitioner thereafter filed a writ petition in this Court being Writ Petition No. 622 of 2003 challenging the said recovery certificate and for various interim reliefs. On 7.4.2004, this Court directed the petitioner to avail of alternative remedy available under the provisions of Section 154 of the Maharashtra Co-operative Societies Act, 1960 and disposed of the petition accordingly.
4. On 27.4.2004, the petitioner filed a revision application under Section 154 Of the Maharashtra Co-operative Societies Act, 1960 before the Divisional Joint Registrar, Co-operative Societies, Bombay being Revision Application No. 261 of 2004. The petitioner thereafter made an application for dispensing with the condition of deposit of 50%. under Section 154(2A) of the Maharashtra Co-operative Societies Act, 1960. On 5.5.2004, the Divisional Joint Registrar passed an order rejecting the revision application and stay application on the ground that the petitioner has failed to deposit the amount as prescribed under Sub-section (2A) of Section 154 of the Maharashtra Co-operative Societies Act, 1960.
5. In the aforesaid setting of the facts, the petitioner has filed the present petition and has, inter alia, challenged the constitutional validity of Sub-section (2A) of Section 154 of the Maharashtra Co-operative Societies Act, 1960 on the ground that the same is ultra vires Articles 14 and 19 of the Constitution of India as the same is arbitrary and discriminatory.
6. Before we proceed further we feel it relevant to reproduce hereunder the provisions of Sub-section (2A) of Section 154 of the Maharashtra Co-operative Societies Act, 1960 which read as under :-
'(2A) No application for revision shall be entertained against the recovery certificate issued by the Registrar under Section 101 unless the applicant deposits with the concerned society, fifty percent amount of the total amount of recoverable dues.'
7. The learned counsel appearing for the petitioner has before us contended that the provisions of Sub-section (2A) of Section 154 of the Maharashtra Co-operative Societies Act, 1960 are ultra vires and violative of Articles 14 and 19 of the Constitution of India and has in support thereof relied upon the judgment of the Honourable Supreme Court of India in the case of Mardia Chemicals Ltd., and Ors. v. union of India and Ors., reported in : AIR2004SC2371 . The said judgment considered the provisions of Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 which inter a1ia provides for deposit of 75% of the amount demanded before initiation of the proceedings challenging the notice issued under the provisions of the Act. The learned counsel has, therefore, contended that the provisions of Sub-section (2A) of Section 154 of the Maharashtra Co-operative Societies Act, 1960 which are introduced by the Amending Act 41 of 2000 which are also in para materia with the said provisions are also equally illegal and unconstitutional and is liable to be set aside. It is further contended that a fetter of the nature under Sub-section (2A) of Section 154 of the Maharashtra Co-operative Societies Act, 1960 cannot be imposed on a right to appeal and/or revision of the party and, therefore, the provisions of Sub-section (2A) of Section 154 of the Maharashtra Co-operative Societies Act, 1960 is unconstitutional and be liable to be struck down.
8. The reliance placed by the learned Counsel in the case of Mardia Chemicals Ltd., and Ors. v. Union of India and ors. (supra) is, in our view, misconceived for the simple reason that the proceedings under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 are not proceedings in the nature of appeal and/or revision but are original initiation of the proceeding. The Supreme Court while considering the said Section 17 of the said Act has itself in paragraph 60 of the judgment held as under :-
'60, The requirement of pre-deposit of any amount at the first instance of proceedings is not to be found in any of the decisions cited on behalf of the respondent. All these cases relate to appeals. The amount of deposit of 75% of the demand, at the initial proceeding itself sounds unreasonable and oppressive, more particularly when the secured assets/the management thereof along with the right to transfer such interest has been taken over by the secured creditor or in some cases property is also sold. Requirement of deposit of such a heavy amount on the basis of a one-sided claim alone, cannot be said to be a reasonable condition at the first instance itself before start of adjudication of the dispute. Merely giving power to the Tribunal to waive or reduce the amount, does not cure the inherent infirmity leaning one side in favour of the party, who, so far has alone been the to decide the amount and the fat of default and classifying the dues as NPAs without participation/association of the borrower in the process. Such an onerous and oppressive condition should not be left operative in expectation of reasonable exercise of discretion by the authority concerned. Placed in a situation as indicated above, where it may not be possible for the borrower to raise any amount to make the deposit, his secured assets having already been taken possession of or sold, such a rider to approach the Tribunal at the first instance of proceedings, captioned as appeal, renders the remedy illusory and nugatory.'
9. The provisions of Sub-section (2A) of Section 154 of the Maharashtra Co-operative Societies Act, 1960 are not in the nature of original proceedings but, in fact, they are in the nature of appellate and/or revisional proceedings. The provisions of Section 154 gives a right to a party to challenge the orders passed by the Registrar under Section 101 of the Maharashtra Co- operative Societies Act, 1960. The of Section 154 is the power of the higher authorities to revise the order passed by the lower authorities. Similar provisions of deposits are found in the various statutes and has been consistently upheld by the Hon'ble Supreme Court of India in a series of judgments. A survey of some of the judgments would be relevant for the present case. In the case of The Anant Mills Co. Ltd. v. State of Gujarat and Ors., reported in : [1975]3SCR220 wherein the constitutional validity of Section 406(2)(e) of the Bombay Provincial Municipal Corporation Act, 1949 was under challenge. While dealing with the aforesaid issue, the Supreme Court in paragraph 40 thereof has held as under :-
'40. After hearing the learned Counsel for the parties, we are unable to subscribe to the view taken by the High Court. Section 406(2)(e) as amended states that no appeal against a rateable value or tax fixed or charged under the Act shall be entertained by the Judge in the case of an appeal against a tax or in the case of an appeal made against a rateable value after a bill for any property tax assessed upon such value has been presented to the appellant, unless the amount claimed from the appellant has been deposited by him with the Commissioner. According to the proviso to the above clause, where in any particular case the Judge is of opinion that the deposit of the amount by the appellant Mill cause undue hardship to him, the Judge may in his discretion dispense with such deposit OP part thereof, either unconditionally or subject to such conditions as he may deem fit. The object of the above provision apparently is to ensure the deposit of the amount claimed from an appellant in case he seeks to file an appeal against a tax or against a rateable value after a bill for any property tax assessed upon such value has been presented to him. Power at the same time is given to the appellate Judge to relieve the appellant from the rigour of the above provision in case the Judge is of the opinion that it would cause undue hardship to the appellant. The requirement about the deposit of the amount claimed as a condition precedent to the entertainment of an appeal, which seeks to challenge the imposition or the quantum of that tax, in our opinion, has not the effect of nullifying the right of appeal, especially when we keep in view the fact that discretion is vested in the appellate Judge to dispense with the compliance of the above requirement. All that the statutory provision seeks to do is to regulate the exercise of the right to appeal. The object of the above provision is to keep in balance the right of appeal, which is conferred upon a person who is aggrieved with the demand of tax made from him, and the right of the Corporation to speedy recovery of the tax. The impugned provision accordingly confers a right of appeal and at the same time prevents the delay in the payment of the tax. We find ourselves unable to accede to the argument that the impugned provision has the effect of creating a discrimination as is offensive to the principle of equality enshrined in Article 14 of the Constitution.. It is significant that the right of appeal is conferred upon all persons who are aggrieved against the determination of tax or rateable value. The bar created by Section 406(2)(e) to the entertainment of the appeal by a person who has not deposited the amount of tax due from him and who is not able to show to the appellate Judge that the deposit of the amount would cause him undue hardship arise out of his own omission and default. The above provision, in our opinion, has not the effect of making invidious distinction or creating two classes with the object of meting out differential treatment to them; it only spells out the consequences flowing from the omission and default of a person who despite the fact that the deposit of the amount found due from him would cause him no hardship, declines of his own volition to deposit that amount. The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. We fail to understand as to why the Legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions. It is permissible, for example, to prescribe a condition in criminal cases that unless a convicted person is released on bail, he must surrender to custody before his appeal against the sentence of imprisonment would be entertained. Likewise, it is permissible to enact a law that no appeal shall lie against an order relating to an assessment of tax unless the tax had been paid. Such a provision was on the statute book in Section 30 of the. Indian Income-tax Act, 1922. The proviso to that section provided that '.... no appeal shall lie against an order under Sub-section (i) of Section 46 unless the tax had been paid'. Such conditions merely regulate the exercise of the right of appeal so that the same is not abused by a recalcitrant party and there is no difficulty in the enforcement of the order appealed against in case the appeal is ultimately dismissed. It is open to the Legislature to impose an accompanying liability upon a party upon whom legal right is conferred or to prescribe conditions for the exercise of the right. Any requirement for the discharge of that liability or the fulfilment of that condition in case the party concerned seeks to avail of the said right is a valid piece of legislation, and we can discern no contravention of Article 14 in it. A disability or disadvantage arising out of a party's own default or omission cannot be taken to be tantamount to the creation of two classes offensive to Article 14 of the Constitution, especially when that disability or disadvantage operates upon all persons who make the default or omission.'
10. Thereafter in the case of Seth Nand Lal and Anr v. state of Haryana and Ors. reported in : [1980]3SCR1181 , while considering: the provisions of Section 18(7) of the Haryana Ceiling on Land Holdings Act, 1972, the Supreme Court has in paragraph 22 of the said judgment held as under :-
'22. It is settled by several decisions of this Court that the right of appeal is a creature of a statute and there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory (vide : the latest decision in Anant Mills Ltd., v. State of Gujarat). Counsel for the appellants, however, urged that the conditions imposed should be regarded as unreasonably onerous especially when no discretion has been left with the appellate or revisional authority to relax or waive the condition or grant exemption in respect thereof in fit and proper cases. and, therefore, the fetter imposed must be regarded as unconstitutional and struck down. It is not possible to accept this contention for more than one reason. In the first lace, the object of imposing the condition is obviously to prevent frivolous appeals and revision that impede the implementation of the ceiling policy; secondly, having regard to Sub-sections (8) and (9) it is clear that the cash deposit or bank guarantee is not by way of any exaction but in the nature of securing mesne profits from the person who is ultimately found to be in unlawful possession of the land; thirdly, the deposit or the guarantee is correlated to the landholdings tax (30 times the tax) which, we are informed, varies in the State of Haryana around a paltry amount of Rs. 8 per acre annually; fourthly, the deposit to be made or bank guarantee to be furnished is confined to the landholdings tax payable in respect of the disputed area i.e. the area or part thereof which is declared surplus after leaving the permissible area to the appellant or petitioner. Having regard to those aspects, particularly the meager rate of the annual land-tax payable, the fetter imposed on the right of appeal/revision, even in the absence of a provision conferring discretion on the appellate/revisional authority to relax or waive the condition, cannot be regarded as onerous or unreasonable. The challenge to Section 18(7) must, therefore, fail.'
11. The validity of the provisions of Section 129E of the Customs Act, 1962 which also provides for deposit of amount before filing an appeal came up for consideration before the Hon'ble Supreme Court of India in the case of Vijay Prakash D. Mehta and Anr. v. Collector of Customs (Preventive) Bombay, reported in : [1989]175ITR540(SC) in which the Supreme Court while upholding the validity of the said section has held as under :-
'11. These observations cannot be applied to the facts of this case. Here we are concerned with the right given under Section 129A of the Act as controlled by Section 129E of the Act, and that right is with a condition and thus a conditional right. The petitioner in this case has no absolute right of stay. He could obtain stay of realisation of tax levied or penalty imposed in an appeal subject to the limitations of Section 129E. The proviso gives a discretion to the authority to dispense with the obligation to deposit in case of 'undue hardships'.
12. Similar provisions which art appearing in respect of the Property Tax under the provisions of the Delhi Municipal Corporation Act, 1957 particularly Section 170(b) thereof came up for consideration of the Hon'ble Supreme Court of India in the case of Shyam Kishore and Ors. v. Municipal Corporation of Delhi and Anr. reported in : AIR1992SC2279 . The said provisions mere upheld as valid on the same line of reasoning as has been quoted hereinabove.
13. In a latest judgment in the case of State of Tripura v. Manoranjan Chakraborty and Ors., reported in : (2001)10SCC740 , the Hon'ble Supreme Court while upholding the validity of the proviso to Section 20(1) and 21 (2) of the Tripura Sales Tax Act held as under :-
'3. As we see it, the point in issue is no longer res integra. This Court in Gujarat Agro Industries Co. Ltd., v. Municipal Corporation of the City of Ahmedabad dealing with an analogous provision, where discretion to waive pre-deposit was limited only to the extent of 25 per cent of the tax, was upheld by this Court. To the same effect is the decision of this Court in Shyam Kishore v. Municipal Corpn. of Delhi.
4. For the reasons contained in the said decisions, we hold that the impugned provisions are valid. it is, of course, clear that if gross injustice is done and it can be shown that for good reason the court should interfere, then notwithstanding the alternative remedy which may be available by way of an appeal under Section 20 or revision under Section 21, a writ court can in an appropriate case exercise its jurisdiction to do substantive justice. Normally of course the provisions of the Act would have to be complied with, but the availability of the writ jurisdiction should dispel any doubt which a citizen has against a highhanded or palpable illegal order which may be passed by the assessing authority.'
14. In the light of the consistent view of the Honourable Supreme Court of India interpreting a similar provision in large number of statutes which are in para materia to the provisions of Sub-section (2A) of Section 154 of the Maharashtra Co-operative Societies Act, 1960, we are of the view that the provisions of Sub-section (2A) of Section 154 are constitutionally valid and are not violative of the petitioner's fundamental rights under Articles 14 and 19 of the Constitution of India. We are also of the opinion that the case of Mardia Chemicals Ltd., and others (supra) has no application to the facts of the present case. The aid case was not an appellate or revisional proceedings taut were original proceedings and, therefore, imposition of a condition of deposit of dues was held to be impermissible in law. The present case is not of a original proceeding and, therefore, we are of the view that the judgment in the case of Mardia Chemicals Ltd., and others, do not apply herein. We therefore uphold the validity of the said Sub-section (2A) of Section 154 of the Maharashtra Co-operative Societies Act, 1960.
15. We are further of an opinion that by providing for deposit only of 50% of the total dues under a recovery certificate the legislature has itself whittle dawn the rigour of the said provisions. Thus absence of power to dispense with deposit by revisionary authority does not make the provision arbitrary or discriminatory. The section itself provides for uniform dispensing of the 50% of the amount already adjudicated as dues by the lower authority.
16. The next contention urged by the learned counsel for the petitioner is that the petitioner was a partner of the 2nd respondent firm but was not impleaded as a party to the original proceedings under Section 101 of the Maharashtra Co-operative Societies Act, 1960 and, therefore, the recovery certificate cannot be executed as against the petitioner herein is concerned. We are not impressed with the aforesaid argument for more than one reason. Firstly, the said point has to be agitated before the revisional authority which is the Minister. However, the petitioner has not complied with the requirements of Sub-section (2A) of Section 154 of the Maharashtra Co-operative Societies Act, 1960 and thus the issue could not be raised and considered before the authority and therefore normally we also should not entertain the said plea for the first time in writ jurisdiction under Article 226 of the Constitution of India. However, even considering on merits, we find that the said contention is baseless and without any substance. Admittedly, at the relevant time when the loan was advanced by the 1st respondent to the 2nd respondent firm, the petitioner was a partner in the said firm. Secondly, under the provisions of Order 30 of the Civil Procedure Code, a suit can be instituted against the firm and the firm being an association of the partners the said partners are liable in respect of the liabilities of the said partnership firm. Order 30 rule (1) inter alia prescribes that any two or more persons claiming or being liable as partners and carrying on business in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action. It is well settled that the partners are personally liable in respect of the liability of the firm since the partnership firm is not constituted on the principle of limited liability. In the aforesaid circumstances, we do not find any merits in respect of the contention advanced by the learned counsel for the petitioner in the present case and hence, we dismiss the petition. However, there shall be no order as to costs.
Parties to act on an ordinary copy of this order duly authenticated by the Private Secretary of this Court.