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2015 Supreme(Bom) 1287

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NARESH H. PATIL AND S.B. SHUKRE, JJ .
Suresh Narayan Rege -Petitioner
Versus
Saraswat Coop. Bank Ltd. & Ors. - Respondents
Writ Petition No.11424 of 2012
Decided On : 19-08-2015

Advocates:
Advocate Appeared:
Mr. Satish Shete a/w Mr. Amol Jawale i/by A.P. Steenson & Associates for the Petitioner
Mr. Bhupesh V. Samant, Advocate for Respondent No.1
Mr. P.G. Sawant, A.G.P. for Respondent No.9

Headnote:Maharashtra Co-operative Societies Act, 1960 - Section 91 - Maharashtra Co-operative Societies Rules, 1961, Rule 107(ii)(h) - Auction sale. - Where non-compliance of Rule 107(ii)(h) of Rules, 1961 caused no substantial injury to petitioner who accepted sale of property by respondent therefore auction sale warrants no interference. - It could be seen from the above that in all these proceedings no challenge to the sale which had been completed long back on the ground that remainder of the balance amount of the purchase price was not paid within stipulated time by the auction purchasers was not made. On the contrary, the petitioner’s conduct was such as to accept the sale of the subject property by respondent No. 1 which has resulted in settling finally the rights between the parties.

       There is no dispute about the principle of law that whenever there is a material irregularity or illegality in conduct of sale and it causes substantial injury to the borrower, the sale is liable to be set aside. However, in the instant case, the petitioner has not demonstrated any substantial injury having been caused to him.

JUDGMENT :

S.B. SHUKRE, J.

1. By this writ petition, the petitioner has challenged the judgment and order dated 12.3.2012 passed in Revision Application No.434/2006 by the Divisional Joint Registrar, Cooperative Societies Mumbai Division, Mumbai thereby refusing to set aside the sale of the property mortgaged by the petitioner to respondent no.1Bank as a security for repayment of the loan amount borrowed by the petitioner's concern M/s. Mohan Printery, Mumbai.

2. The petitioner had obtained a loan of approximately Rs.22,00,000/- from respondent no.1 and as a security for repayment of the loan amount, the petitioner had mortgaged in favour of respondent no.1 his immovable property, situated at Unit No.105, 106 and 107 in Udyog Mandir No.1, Bhagoji Keer Marg, Mahim, Mumbai. The petitioner defaulted in making repayment of the loan amount and, therefore, dispute arose between the petitioner and respondent no.1 regarding recovery of loan amount. The dispute went before a Cooperative Court, Mumbai and an Award under Section 91 of the Maharashtra Cooperative Societies Act, 1960 was passed by consent of the parties. As per the Award, the petitioner was to make the payment to respondent no.1 by instalments. The instalments were not paid and, therefore, execution proceedings were initiated by respondent no.1 and the subject property of the petition was attached. A writ petition was filed by the petitioner challenging the attachment. The said writ petition was dismissed and one month's time was given to the petitioner to make payment as per order passed by the Division Bench of this Court in Writ Petition No.2195/2002 on 9.9.2002. A review application filed against the said order dated 9.9.2002 also came to be dismissed by this court on 8.1.2003.

3. The petitioner had also filed a revision application under Section 154 of the Act being Revision Application No.434/2006 before the Divisional Joint Registrar, Cooperative Societies, Mumbai challenging the attachment and sale notices, proclamation dated 10.5.2004, various orders passed in respect of the attachment and sale of the subject property and also the order of sale issued by the concerned Special Recovery Officer attached to respondent no.1. During the pendency of this revision application, it appears that the petitioner filed a writ petition being Writ Petition No.5562/2009. In this petition, this court passed an order on 6.9.2011 directing the Divisional Joint Registrar to decide the revision application as expeditiously as possible and preferably within a period of six months.

4. It has emerged from the record that the petitioner apart from filing the said revision application, kept on moving the High Court by initiating further rounds of litigation. A Writ Petition No.2125/2004 was filed by the petitioner seeking various reliefs and one of the reliefs sought was stay of the execution of decree granted by the Cooperative Court. This petition was dismissed in limini by the learned Single Judge of this Court on 30.8.2004. An appeal being Appeal No.736/2005 was preferred against the said order before the Division Bench of this Court. This appeal was also dismissed by the Division Bench by its order passed on 27.9.2005. At that time, a statement was made on behalf of the petitioner by his learned counsel on instructions that the machinery belonging to the petitioner kept separately by the Bank in a godown, would be removed by the petitioner within a period of six weeks. In another writ petition being Writ Petition No.5562/2009, a statement was made by the learned counsel for the petitioner on instructions that the petitioner shall remove his machinery lying in the godown of the respondent-Bank within a period of four weeks which was recorded by this Court. In the same petition, on 8.4.2010, minutes of order came to be recorded. It was specifically mentioned therein that if goods were not removed by the petitioner from the godown on or before 26.4.2010, respondent no.3Bank (respondent no.1




















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