The main legal point established in the judgment is the interpretation and application of Rule 107 (11) (d-1) of the Maharashtra Cooperative Societies Rules, 1961 in the context of upset price fixation and auction of mortgaged properties.

JUDGMENT

1. The Petitioner is registered partnership firm and is in the business of construction and real estate development. The Petitioner by the present Writ Petition is seeking following reliefs:- Proceedings bearing Upset Price Fixation Application No.5/2021 be declared as illegal. The act of the Respondent No.3 in proceeding to auction/sale the Petitioners immovable property without complying with the provisions of Rule 107 (11) (d-1) of the Maharashtra Cooperative Societies Rules, 1961 (hereinafter referred to as the said Rules) is bad in law and liable to be set aside. Order dtd. 31/3/2022 passed in Upset Price Fixation Proceeding No.5-21/2022 be quashed and set aside. The auction notices dtd. 16/4/2022 and 3/5/2022 be quashed and set aside.

2. The factual position necessary for the determination of the dispute between the parties is set out hereinbelow:-

(i) The Petitioner had availed loan amounting to Rs.1.00 Crore from the Respondent No.3-NDVS Bank Ltd., Nashik Road in the year 2014. For securing the said loan Petitioner has mortgaged certain properties. The Petitioner failed to pay due installments.

(ii) On 20/8/2018, Respondent No.3-bank filed recovery application under Sec. 101 of the Maharashtra Co- operative Societies Act, 1960 (hereinafter referred to as the said Act) for recovery of dues amounting to Rs.1,04,07,785.00.

(iii) Recovery Certificate dtd. 13/3/2019 was issued in favour of the Respondent No.3 by the Deputy Registrar Co- opeartive Societies (Parseva, Nashik).

(iv) Notice prior to attachment dtd. 30/3/2019 issued by the Special Recovery Officer of the Respondent No.3 was served on the Petitioner regarding attachment of the mortgaged properties of the Petitioner.

(v) On 14/5/2019, the mortgaged properties of the Petitioner were attached and accordingly public notice regarding attachment of said properties was published in news papers.

(vi) On 21/5/2019, the Respondent No. 3 filed Upset Price Fixation Application No.32/2019 with the Respondent No.2-District Deputy Registrar. By order dtd. 26/2/2020, the Respondent No.2 rejected said Upset Price Fixation Application No.32/2019 on the ground that there was huge difference in the valuation of the immovable properties in question submitted by the Respondent No.3 and the Petitioner.

(vii) Fresh Upset Price Fixation Application No.5/2021 was filed by the Respondent No.3-bank before the Respondent No.2. The Petitioner has raised contention in the petition that without taking into consideration, the factors mentioned in the order dtd. 26/2/2020 passed by the Respondent No.2 the fresh application was filed. The valuation of immovable properties was shown lesser to great extent as compared to the valuation mentioned in the Upset Price Fixation Application No.32/2019.

(viii) By order dtd. 31/3/2022, the Respondent No.2- District Deputy Registrar, Co-opeartive Societies, Nashik allowed the Upset Price Fixation Application No.5- 21/2022.

(ix) On 4/4/2022, notice before auction was issued by mentioning total dues as Rs.1,04,07,785.00 plus Rs.96,87,836.00 plus 15% interest from 21/4/2018.

(x) The auction notices dtd. 16/4/2022 and 3/5/2022 were issued by the Respondent No.3-bank. The auction is scheduled on 17/5/2022 at 1.00 pm.

3. The affidavit-in-reply dtd. 6/5/2022 of Namdeo Sukhdeo Borade, Special Recovery Officer was filed on behalf of the Respondent No.3. In the said affidavit-in-reply following contentions are raised:-

i. The Petitioner is wilful defaulter and has been in arrears of large amount.

ii. This Writ Petition can be heard only by Single Judge and not by the Division Bench in view of the challenge raised in the Writ Petition. The Writ Petition challenging fixation of upset price is only an intermediate step for the purpose of deciding immediate amount for holding auction. By the said order no substantive rights are decided. It is only after the auction is held, the auction purchasers would indicate the offer. Therefore, the Writ Petition is not maintai