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2013 Supreme(Bom) 2205
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S. SONAK, J.
Ms. Jyoti Sakharam Bhogle & Ors.
Vs.
The Saraswat Co-operative Bank Ltd. & Ors.
Writ Petition No. 9738 of 2012
Decided On: 28th October, 2013
Mr. VAIBHAV JOGLEKAR i/b. Mr. VAIBHAV A. SUGDARE for Petitioners.
Mr. BHUPESH V. SAMANT for Respondent No. 1.
Mr. D.T.R. TALANKAR i/b. Mr. RAMESHAIYAR for Respondent No. 8.
Ms. M.S. BANE-AGP for Respondent-State.
Headnote:Limitation Act, 1963 - Section 5 - Condonation of delay. - Where petitioners were not totally indolent rather pursued their remedies before Revenue Authorities therefore petition cannot be dismissed on ground of delay and laches. - This is not a matter which should be dismissed on the ground of delay and laches. There is a difference between delay per se and laches. Laches is not the mere physical running of time. Laches arise in a situation where, on account of inordinate delay on the part of the petitioner to invoke legal remedies, corresponding rights and equities arise in the contesting parties and it is totally inequitable to disturb the same. In the present case although there is some delay in filing of the petitions, which the petitioners have themselves acknowledged, it cannot be said that the petition deserves to be dismissed on the ground of laches. The respondent No. 1 bank has already sold number of properties of the petitioners in the execution of the recovery certificates. It is not as if the petitioners have been totally indolent in the matter. They have been pursuing their remedies before the revenue authorities. Petition was filed in the year 2011 which was withdrawn in April 2012 with liberty. Soon thereafter the present petition has been filed.
Maharashtra Co-operative Societies Act, 1960 - Section 154 - Exercise of revisional jurisdiction under. - By virtue of change in character of society during pendency of revision, revisional jurisdiction not barred. - Coming now to the merits of challenge, the two orders in revision application cannot be sustained in view of the decision of this Court in Abhyudaya, 2009 (4) All MR 72. The respondent No. 7 has declined to exercise jurisdiction vested in him, on which ground the two orders are liable to be upset. Accordingly the orders dated 21.10.2008 in revision application No. 754 of 2 006 and 174 of 2007 are quashed and set aside. The revision applications are restored to the file of the respondent No. 7 who shall decide the same in accordance with law.
Maharashtra Co-operative Societies Act, 1960 - Section 154 - Revision challenging recovery certificate. - Dismissal of revision, challenging recovery certificate and sale notices, on ground that revision become infructuous in view of completion of sale of property, unjustified. - The revision application could not have been dismissed on the sole ground that the properties in question having been sold in pursuance of impugned recovery certificates, the revision application has become infructuous. Besides from the perusal of the revision application, it is seen that several contentious issues had been raised by the petitioners. None of those issues have been even adverted to in disposing of the revision application No. 158 of 2007. On this short ground, the order dated 28.5.2007 in revision application No. 158 of 2007 is set aside. The revision application No. 158 of 2007 is restored to the file of respondent No. 7 who shall proceed to decide the same in accordance with law.
Rule. With the consent of the learned counsel for the parties, Rule is made returnable forthwith.
2. For reasons indicated in the course of this judgment, leave is granted to amend the petition to incorporate challenge to order dated 21.10.2008 passed in revision application no. 754 of 2006 by the Deputy Joint Registrar - respondent no. 7.
3. Leave is granted to the petitioner to delete reference to the challenge to order dated 16.03.2012 passed by the District Rehabilitation Officer, Collector, Raigad (Exhibit 'O' to the petition). Accordingly, civil application no. 2600 of 2013 is made absolute in terms of prayer clause (a) only, by a separate order passed today.
4. This petition therefore is now directed against the following orders passed by the revisional authority under the Maharashtra Co-operative Societies Act, 1960 ("the MCS Act") i.e. Deputy Joint Registrar of Co-operative Societies (respondent no. 7):
(a) Order dated 21.10.2008 in revision application no. 754 of 2006 dismissing the revision application on the ground that upon conversion of the society into a Multi State Co-operative Society, the revisional authority under Section 154 of the Act has no jurisdiction to entertain the revision application;
(b) Order dated 21.10.2008 in revision application no. 174 of 2007 whereby the revisional authority declined to entertain the revision petition on the ground referred to in (a) above;
(c) Order dated 28.05.2007 in revision application no. 158 of 2007, where the revision application was entertained but dismissed as having become infructuous on account of the sale of the property in pursuance of the impugned recovery certificate having been completed.
5. In the light of orders ultimately proposed to be passed, there is no necessity to advert to the detailed facts, particularly relating to the merits or demerits of the orders impugned in this petition. The facts and circumstances relevant for the purposes of disposal of the present petition are however adverted to with requisite brevity:-
(A) Petitioners claim to be owners of property bearing Gat Nos. 506 and 507, Village Zirad, Taluka Alibaug, District Raigad admeasuring 1 Hectare 18 Ares and 19 Ares respectively in terms of registered Deed of Partition dated 28.09.2001. The dispute raised in this petition pertains to the said properties.
(B) Respondent No. 4 i.e. M/s. Perfect Tools was a proprietary concern of the late Sakharam Narayan Bhogle (i.e. the father of the petitioners).
(C) Respondent no. 5 i/e. M/s. Precision Tools is a partnership firm having following partners:-
(a) Smt. Sunita Sakharam Bhogle (petitioners' mother) and
(b) Deepak Sakharam Bhogle (petitioners' brother)
(D) Respondent No. 4 proprietary concern, had availed of certain term loan and cash credit facilities from Maratha Mandir Co-operative Bank (now amalgamated with Respondent No. 1 i.e. Saraswat Co-operative Bank w.e.f. 20.03.2006).
(E) Respondent No. 5 i/e. M/s. Precision Tools had also availed certain term loan and cash credit facility from Maratha Mandir Co-operative Bank Ltd. According to the petitioners, late Sakharam Narayan Bhogle was neither a partner of M/s. Precision Tools nor a guarantor to the loans taken by M/s. Precision Tools from the said bank.
(F) On 28.08.2001 Maratha Mandir Co-op. Bank Ltd. Initiated two independent recovery proceedings under section 101 of the MCS Act against respondent no.4 and respondent no. 5.
(G) On 19.08.2002 Multi State Co-operative Societies Act, 2002 was brought into effect. The said 2002 Act repealed the Multi State Co-operative Societies Act, 1984.
(H) On 18.07.2003 Mr. Sakharam Bhogle i.e. the sole proprietor of respondent no. 4 expired.
(I) On 22.03.2004 recovery certificate was issued against legal heirs of the late Mr. Sakharam Bhogle (i.e. petitioners herein and Sunita Sakharam Bhogle and Deepak Bhogle) for a sum of Rs. 22,48,968/-.
(J) On 22.03.2004 recovery certificate was issued against respondent no. 5 for a sum of Rs. 89,00,000/-.
(K) On 20.03.2006
