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2018 Supreme(Bom) 495

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. GUPTE, J.
Deepak Nikhalje, Sole Proprietor of M/s Adhishakti Developers and Another – Petitioners
Versus
State of Maharashtra and Others – Respondents
Writ Petition Nos. 1543, 6544 of 2009, 393, 1779 of 2010
Decided On : 26-03-2018

Advocates Appeared:
For the Petitioners: A.S. Khandeparkar, P.A. Sarwankar, Bipin Joshi.
For the Respondents: Girish Godbole, Kedar Kanetkar, Jaishree Surati, Ashwinkumar.

Headnote:

Maharashtra Cooperative Societies Rules, 1961 - Sub-rule (11) of Rule 107 - Special Recovery and Sale - Partnership firm – Controversy - There is some controversy between parties as to whether purchase was on behalf of the firm - It is however not disputed that plot was infact purchased in the name of who also paid purchase price for the same - Sale was subsequently confirmed. In October Brothers sought cash credit loan of amount from one of Respondents herein Cooperative Bank Limited Brothers failed to repay this loan to the Bank and as a result, recovery proceedings were filed by Bank under Maharashtra Cooperative Societies Act, 1960 (“Act”) - On April Court passed an ex-parte award under Section 91 of that Act against Brothers through its partners including - Award was for a sum of with interest on principal amount at the rate of per annum – On July in pursuance of this award Cooperative Court issued an execution certificate under Section 98 of Act - A demand notice was served upon Brothers in pursuance of execution certificate and finally on - Held, Divisional Joint Registrar did condone delay on part of legal heirs in approaching him in revision on ground that there was no case of deliberate or intentional delay - This conclusion can be sustained even on a bare reading of records of case and this Court in its writ jurisdiction under Articles 226 and 227 of Constitution of India would not be inclined to interfere with such order - Accordingly there is no merit in writ petitions - Before passing orders on writ petitions it is however necessary to note that legal heirs of who are Respondents to present petitions have made an unconditional offer of depositing entire amount of bank dues which were payable as on March in response to auction sale - Total outstanding of bank as on March was a sum of amount - This amount is agreed to be deposited by legal heirs of within twelve weeks from today - Statement is accepted - Writ Petition dismissed

JUDGMENT :

1. These four petitions concern a plot of land bearing No. 21, admeasuring 810 sq. meters out of Suvery No. 14 part of Village Chembur, Taluka Kurla, District B.S.D. (“subject plot”). With a view to understand the controversy in these petitions, a few facts may be noted as below:

2. In or about 1981, the subject plot was proposed to be purchased by a partnership firm known as M/s Borse Brothers. One Panditrao S. Borse and his father and three brothers were partners of this firm. On 1 August 1981, the subject plot was purchased in an auction sale held by Collector of Bombay. There is some controversy between the parties as to whether the purchase was on behalf of the firm. It is, however, not disputed that the plot was infact purchased in the name of Panditrao Borse, who also paid the purchase price for the same. The sale was subsequently confirmed. In October 1986, M/s Borse Brothers sought cash credit loan of Rs. 10,00,000/- from one of the Respondents herein, namely, Mahanagar Cooperative Bank Limited (“Bank”). M/s Borse Brothers failed to repay this loan to the Bank and as a result, recovery proceedings were filed by the Bank under Maharashtra Cooperative Societies Act, 1960 (“Act”). On 4 April 1994, the Court passed an ex-parte award under Section 91 of that Act against M/s Borse Brothers, through its partners including Panditrao Borse. The award was for a sum of Rs. 24,19,904.92 with interest on principal amount at the rate of 17.5 % per annum. On 4 July 1996, in pursuance of this award, the Cooperative Court issued an execution certificate under Section 98 of the Act. A demand notice was served upon M/s Borse Brothers in pursuance of the execution certificate and finally, on 16 April 2004, Special Recovery and Sale Officer (“SRO”) took possession of the subject plot. By an application made on 24 May 2004, three of the present Respondents, as heirs and legal representatives of Panditrao Borse (since deceased), through their Constituted Attorney, made an application before the Cooperative Court for setting aside the ex parte award and stay of execution. By its order dated 6 September 2004, the Cooperative Court rejected that application. On 30 October 2004, a panchnama was made of taking over of the possession of the subject plot and a notice thereafter was published in the local newspapers inviting tenders for purchase of the plot in execution of the award. On 29 January 2005, SRO opened tenders received in response to the auction notice. The offer of the Petitioner herein as a Proprietor of M/s Adhishakti Developers (“M/s Adhishakti”) of Rs. 1,51,00,000/- was accepted by SRO. On 25 January 2005, a sum of about Rs. 50,96,000/- from out of its offer price was paid by M/s Adhishakti to SRO. The balance purchase price was paid in four separate installments, the last of such installments having been paid on 17 March 2005. After payment of the last installment, vacant and peaceful possession of the subject plot was handed over by SRO to M/s Adhishakti, under a possession receipt dated 18 March 2005. On 13 May 2005, a communication was addressed by SRO to M/s Borse Brothers informing the latter about the auction sale and requesting them to collect surplus amount (that is to say, the surplus sales proceeds after adjustment of the bank's outstanding) from the bank. A conveyance deed appears to have been executed thereafter in favour of M/s Adhishakti after confirmation of sale in its favour. M/s Adhishakti thereafter applied for effecting changes in the revenue records in pursuance of the auction sale in their favour. By an order dated 9 March 2006, the Collector of Mumbai Suburban District rejected that application. That order was challenged in appeal by M/s Adhishakti. By his order dated 16 January 2009, the Hon'ble Minister of Revenue rejected the appeal. This order is the subject matter of challenge in Writ Petition No. 1543 of 2009 filed on the original side by M/s Adhishakti and Appellate Side Writ Petition No. 654























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