Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, V.G. BISHT, JJ.
M/s. Priyesh Land Developers a Partnership Firm Through its Partner Mr. Priyesh Desai - Appellant
Versus
The Pen Co-operative Urban Bank Ltd. - Respondent
Writ Petition No.13001 of 2016, Civil Application No. 3128 of 2016, Writ Petition No. 13001 of 2016, Writ Petition (STAMP) No. 5832 of 2021
Decided on : 07-04-2021
Consent Award - Contractual rate of interest to be compounded quarterly on decreetal amount - Whether transfer of immovable property of petitioner in favour of respondent no.1 under Section 100 of MCS Act r/w Rule 85 of MCS Rules amounts to absolute transfer of ownership or was as a Trustee - Whether liability of petitioner under loan obtained by petitioner from respondent no.1 bank and towards creditors was discharged by virtue of Consent Terms and Deed of Composition entered into between parties on date of filing Consent Terms and on date of Deed of Composition - In view of Section 96 of MCS Act, Co-operative Appellate Court could have made a consent award allowing bank to waive future interest on amount payable by petitioner - Whether said Deed of Composition was itself in pith and substance a Deed of Conveyance operating as absolute transfer of ownership of mortgage property in favour of respondent no.1 bank - Whether declaration sought by bank that Deed of Composition entered into between private parties was a Deed of Conveyance can be granted by this Court exercising writ jurisdiction under Article 226 of Constitution of India - writ petition filed by bank under Article 226 of Constitution of India is maintainable in absence of any relief against Government or other Authority falling under Article 12 of Constitution of India.
Finding of the court:
Section 100 of MCS Act read with Rule 85 of MCS Rules is clear beyond reasonable doubt that said property which was one of security given to the bank by defaulter to secure said loan was transferred in favour of society to realize its dues upon sale of said property and to generate the income out of said property till said property was actually sold and not an absolute transfer in favour of respondent no.1. On perusal of consent award and Deed of Composition, it is clear that liability of the petitioner towards respondent no.1 bank under loans obtained by the petitioner and towards respondent nos.6 and 7 were discharged - There was no question of respondent no.1 bank demanding any amount over and above the amount already crystallized in the consent award and in the Deed of Composition - Section 96 of MCS Act would apply in case of contested matter - Co-operative Court in that case cannot pass an award awarding interest at the rate lower than contractual rate of interest - Transfer of said property by petitioner in favour of respondent no.1 under said consent award and Deed of Composition was not absolute transfer conferring any ownership rights in favour of respondent no.1 and was transferred as a Trustee, respondent no.1 was liable to refund surplus amount after adjusting crystallized dues payable by petitioner to the respondent no.1 under consent award and the Deed of Composition and after adjusting expenses, if any, permissible, if any, under Rule 85 of MCS Rules - While exercising writ jurisdiction under Article 226 of Constitution of India cannot direct the subordinate Court to modify the consent award which was rendered on an agreement entered into between the parties by way of consent terms and that also without the consent of all the parties.
Result : Writ Petition (Stamp) No.5832 of 2021 is dismissed.
JUDGMENT :
R.D. Dhanuka, J.
By Writ Petition No. 13001 of 2016 filed under Article 226 of the Constitution of India, the petitioner prays for an order and direction against the State of Maharashtra, the Commissioner for Co-operation and the Registrar of Co-operative Societies and the Divisional Joint Registrar, the respondent nos. 2, 3 and 4 respectively to make payment of Rs.22,48,04,507/- being surplus sale proceeds of the suit property together with interest @ 17% p.a. thereon from 1st March, 2014 till the payment of realization (hereinafter The Pen Co-operative Urban Bank Limited is referred to as ‘the said bank’) (for short The Maharashtra Co-operative Societies Act, 1960 is referred to as ‘the said MCS Act’).
2. The Writ Petition (Stamp) No. 5832 of 2021 is filed by the said bank inter-alia praying for declaration that the Deed of Conveyance whereby operating as absolute transfer of the ownership of the mortgaged property mentioned in the Consent Award dated 7th February, 2002 passed by the Maharashtra State Co-operative Appellate Court in Appeal No. 13 of 2002 so as to constitute the said bank as the absolute owner thereof. The said bank has also prayed in the alternative prayer clause (a) for a writ of certiorari for quashing and/or setting aside the Deed of Composition dated 12th February, 2002. Petitioner also seeks a writ of mandamus against the Maharashtra State Co-operative Appellate Court to modify the Consent Award dated 7th February, 2002 by providing for contractual rate of interest i.e. interest @ 18% p.a. to be compounded quarterly on the decretal amount of Rs.12,52,95,492.65/- from the date of the consent award till the date of recovery of the amount by sale of the mortgaged property.
3. Though several petitions were on board along with these petitions, since the parties to these petitions concluded their arguments finally in these two petitions and the parties to the other petitions did not commence their arguments though opportunity was given immediately after closure of the arguments in these two petitions, we have proceeded with the judgment in these two petitions. Even otherwise these two petitions are not interconnected with the other petitions and can be disposed off without hearing the other matters. The other petitions are adjourned for a period of four weeks. Some of the relevant facts for the purpose of deciding these two petitions are as under :-
4. The petitioner had taken loans and advances from the said bank and had executed and registered a Simple Mortgage Deed in respect of its property being piece and parcel of land admeasuring 595402.04 sq. mtrs. bearing Survey No.38/1 and Survey No.44 (Part), Village Tumb, Sanjan, Taluka Umbergaon, Dist. Valsad, Gujarat on 8th February, 1999. The two Gut numbers were subsequently consolidated and was given new Survey No.44/1.
5. It is the case of the said bank that the petitioner committed default in repayment of the said loan obtained from the said bank. The said bank filed three disputes against the petitioner and also against the sister concern of the petitioner, its partners and guarantors to the said loan transaction being Case Nos. 34 of 2001, 35 of 2001 and 36 of 2001 in the Co-operative Court at Raigad on 22nd January, 2001. Case No.34 of 2001 was filed against M/s. Anuj Land Developers Pvt. Ltd. and others for recovery of sum of Rs.1,79,05,981/- with interest @ 18% p.a. Case No. 35 of 2001 was filed against the M/s. Priyesh Land Developers i.e. the petitioner for recovery of sum of Rs.2,44,78,553/- with interest @ 18% p.a. Case No. 36 of 2001 was filed against the petitioner and others for recovery of sum of Rs.2,52,85,401/- with interest @ 18% p.a.
6. It is the case of the said bank that during the pendency of the said three disputes filed by the said bank, Mr. Bharat Shah and M/s. Pilgrim Mercantile Private Limited applied to the Co-operative Court for their impleadment as party opponent in the said disputes. The Co-operative Court impleaded those tw
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
