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2012 Supreme(Bom) 2331
High Court of Judicature at Bombay
B.P. DHARMADHIKARI, J.
Narsinha N. Naik & Another
Versus
Divisional Joint Registrar Co-op Societies & Others
WRIT PETITION NO.6498 OF 1998
Decided on : 14-12-2012
For the Petitioners:Mayur Khandeparkar, i/b Lokhandwalla & Co., Advocates.
For the Respondents:R1, Ms. P.S. Cardozo AGP, R2 & R3, Rahul Rao R4, Ms. Sweta Prabhu, Advocates.
Headnote:Maharashtra Co-operative Societies Act, 1960 - Sections 99, 101 and 156 - Attachment of property.
Where Revenue Recovery Certificate, not issued under any provision of Section 98 of Act but issued under Section 101 of Act therefore transfer of suit flat cannot to be presumed to be void or inoperative for purpose of attachment of property under Section 156 of Act. - When provisions of Section 99 of the Maharashtra Co-operative Societies Act, 1960, are seen, the said provision invalidates any private transfer of property made after issuance of certificate. The said provisions deals with transfer or encumbrance or charge made or created after issue of certificate by Registrar, Civil Court, or by Assistant Registrar under Section 98 of the Act. A perusal of Section 98 reveals that it provides a procedure for recovery of money.
What is important to note is that Section 98 does not cover certificate issued under Section 101 of the Co-operative Societies Act. Section 101 of the Co-operative Societies Act deals with recovery of arrears due to certain societies as arrears of land revenue. Its opening part shows that it begins with non-obstente clause and therefore overrides provisions contained in Sections 91, 93 and 98 of MCS Act.
A perusal of Section 99 read with Section 98 show that the said Section 99 is not available in present proceedings where certificate sought to be executed is not issued under any of the provisions stipulated in Section 98 but has been issued under Section 101.
As such transfer of suit flat in favour of the petitioner cannot be presumed to be void or inoperative for the purposes of the Maharashtra Co-operative Societies Act. Or then its Section 156.
1. By this Petition filed under Article 226 and 227 of Constitution of India, petitioners who claim to be owners of Flat No.4/99 in complex of one Prashanti Mangaldham Cooperative Society Ltd. have questioned the order passed by Divisional Joint Registrar, Co-operative Societies, Mumbai in Revision Application No. 36/1998 dismissing their revision and thereby confirming their proclamation for sale issued on 22nd November, 1997. It is not in dispute that said proclamation is issued by the Dy. Registrar in exercise of powers under Section 156 read with Section 101 of Maharashtra Co-operative Societies Act,1960 and Rule 107 of 1961 rules framed thereunder. (Said Act is referred to as 1960 Act hereinafter). This Court has on 21st December, 1998 granted ad-interim relief and stayed that proclamation. Said interim order continues to operate even today.
2. Case of Petitioner is he has been placed in possession of suit flat on 7th February, 1995 by Partner of respondent no.4. The said Partner namely Mr. Madhukar Sawant has entered into an agreement for sale with him on 20th December, 1994. The petitioner got knowledge on 2nd January, 1995 about the recovery proceedings initiated by respondent no.2 against said Madhukar when their application for grant of membership was rejected by the above mentioned Prashanti Mangaldham Society. The application under Section 154 filed by petitioners in the matter was ultimately allowed by Divisional Joint Registrar and the order dated 23rd January, 1996 passed by Dy. Registrar rejecting petitioner’s appeal was set aside. The case was remanded back to said Dy. Registrar for further consideration of the matter. On 4th December, 1997 ultimately the petitioner no.1 was admitted as member and petitioner no.2 came to be admitted as co-member.
3. On 22nd November, 1997 respondent no.2 issued the impugned proclamation under Section 156 read with Rule 107 of above mentioned rules and attached said flat. This action was in furtherance of Revenue Recovery Certificate dated 7th November, 1996 issued by Assistant Registrar, i.e. Competent Authority in Recovery Case No. 556/1994 under Section 101 of the Co-operative Societies Act.
4. For the purposes of present proceedings it can be stated that loan was applied for by respondent no.4 on 27th June, 1991 and on 22nd October, 1991 respondent no.2 Society sanctioned the same. The undertaking to create equitable mortgage was then executed by Madhukar Sawant in favour of respondent no.2 on 31st October, 1991. The above mentioned Society namely Prashanti Society had on 12th July, 1991 issued necessary no objection to enable respondent no.4 to raise that loan and also to enable Madhukar Sawant to give necessary undertaking to respondent no.2.
13th December, 2012
5. Today the petitioner has invited attention of Court to a Deed of Confirmation dated 14th September, 1995 which is duly registered with Sub-Registrar on 7th October, 1995. He points out that agreement for sale dated 20th December, 1994 has also been registered as a part of this confirmation deed and accordingly the shares certificates were also then transferred to petitioner. It is urged that thus title of petitioner to suit flat from 20th December, 1994 or in alternative from date on which he was placed in possession or then in any case from 14th September, 1995 was never in dispute.
6. It is informed that two copies of these documents are already supplied to the Counsel representing respondent no.2 Bank and the same are being produced in present petition with proper affidavit.
7. Leave granted.
8. In the above background, learned counsel for the Petitioner has urged that the RRC taken out by the Respondent no.2 on 7.11.1996 against Respondent no.4 or then subsequent proclamation issued by him under section 156 on 22.11.1995 is not binding and cannot be executed against the suit property. Emphasis is placed upon the language of section 156 to urge that the said provisions permits Respondent no.2 to pr
