IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Ramchandra Sitaram Mulik & Others – Petitioners
Versus
Janata Nagari Sahakari Patsanstha Ltd. & Others – Respondents
Writ Petition No. 6584 of 2013
Decided On : 15-01-2018
Maharashtra Co-operative Societies, Act, 1960 - Section 154 - Maharashtra Co-operative Societies Rules, 1961 - Rule 107(3) read with 107(11) - Constitution of India,1950 - Article 227 – Demand of Dowry - Issued a notice for auctioning property - Petitioners had obtained a loan for on Mach from respondent no.1 a Co-operative Credit Society - Petitioners committed default in making repayment of said loan to respondent no .1 - Respondent no.1 filed an application for issuance of recovery certificate under section 101 of MCS Act before respondent no.7 - Recovery certificates were issued in favor of respondent no -1 bearing for sum of with interest at rate of from August with interest at rate of from August respectively - It is not in dispute at neither of petitioners challenged those two recovery certificates issued by respondent no.7 - Held, Court am inclined to accept submission of learned counsel for respondent no -1 that unless there would have material irregularity or injustice to petitioners or petitioners would have been substantially affected by virtue of said certificate having been issued by Deputy Registrar sale already having been effected long back cannot be set aside on that ground - Even if matter is remanded back only for a limited purpose for issuance of sale certificate by officer who is now empowered to issue such certificate under amended provisions of rule 107(14)(5) he will issue such certificate - In court view no purpose would be thus served by remanding matter back only for purpose of issuing such certificate by correct officer after several years when auction purchasers have already paid entire consideration within time as contemplated sale has already been confirmed by concerned officer and auction purchasers have already demolished then existing structures and have carried out redevelopment on said property - Writ Petition dismissed
1. Rule. Learned counsel for the respondent waives service. By consent of parties, the petition is heard finally forthwith.
2. By this petition filed under Article 227 of the Constitution of India, the petitioners have impugned the order dated 3rd May, 2013, passed by the learned Divisional Joint Registrar, Co-operative Societies, Kolhapur Division, Kolhapur, dismissing the revision application filed by the petitioner under section 154 of the Maharashtra Co-operative Societies, Act, 1960 (for short “MCS Act”). Some of the relevant facts for the purpose of deciding this petition are as under:
3. The petitioners had obtained a loan for Rs.4,36,000/- on 31st Mach, 2015 from the respondent no.1, a Co-operative Credit Society. The petitioners committed default in making repayment of the said loan to the respondent no.1. The respondent no.1 filed an application for issuance of recovery certificate under section 101 of the MCS Act before the respondent no.7. The recovery certificates were issued in favour of the respondent no.1 bearing Nos.480 of 2009 and also 481 of 2009 for the sum of Rs.4,36,000/- with interest at the rate of 15% p.a. from 1st August, 2009 and Rs.5,00,000/- with interest at the rate of 18% p.a. from 1st August, 2009 respectively. It is not in dispute that neither of the petitioners challenged those two recovery certificates issued by the respondent no.7. The Special Recovery Officer thus passed an order and attached the property of the petitioners bearing CTS No.3077, situated at village Hupari, Taluka Hatkanangale, District Kolhapur on 27th October, 2009. The mutation entries were made after passing of the said order by the Circle Officer on 23rd November, 2009.
4. The Special Recovery Officer issued a notice under rule 107(3) read with 107(11) of the Maharashtra Co-operative Societies Rules, 1961 (for short MCS Rules) demanding an amount of Rs.7,81,850/- and Rs.14,25,833/- as on 30th September, 2009 and directed the petitioners to pay the said amounts making it clear that in case of default, the properties of the petitioners would be sold by auction.
5. The Special Recovery Officer thereafter issued a notice for auctioning the property of the petitioners by publication on 1st April, 2010. The properties proposed to be auctioned by the said Special Recovery Officer was bearing CTS No.3077 comprising of 18 rooms and the open space. It is the case of the petitioners that the said property was purchased by the respondent nos.3 to 5 in auction on 4th May, 2010 for an amount of Rs.26,51,000/-. On 4th May, 2010, the respondent no.1 issued a notice stating that the respondent nos.3 to 5 had purchased the suit property in auction for an amount of Rs.26,51,000/- and they were directed to pay the said amount within 30 days i.e. on or before 3rd August, 2010 making it clear that in case of any default, the entire process will be completed.
6. On 30th August, 2010, the Deputy Registrar, Hatkanangale confirmed the sale by recording that at the time of sale, the sale price of the property was received on 18th May, 2010 and further confirmed that the said sale was made absolute in terms of rule 107(14) of the MCS Rules. On 22nd June, 2011, the respondent nos.1 and 2 executed a registered sale deed in favour of the respondent nos.3 to 5 in respect of the suit property which was adjudicated on 4th January, 2011 for the purpose of payment of stamp duty.
7. Sometime in the year 2012, the petitioners filed a Revision Application bearing No.529 of 2012 and challenged the order dated 30th August, 2010 passed by the respondent no.1 thereby confirming the sale deed dated 20th August, 2010 and prayed for setting aside the said certificate on various grounds. The said revision application was opposed by the respondent nos.1 and 2 by filing an affidavit in reply denying the contentions of the petitioners that any illegality was committed by the Sale Officer and contenting that the sale was rightly confirmed by the respondent no.1.
8. It
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