The central legal point established in the judgment is the interpretation of the definitions and notifications under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, to determine the entitlement of a Co-operative Bank to take action under the 2002 Act.

DIPAK MISRA, J. :- In this appeal preferred under Section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 the substantiality and justifiability of the order dated 17-10-2007 passed by the learned Single Judge in W. P. No. 8480/07 is called in question by the appellant.

2. The facts which are essential to be stated for adjudication of this appeal are that the appellant and his brother are the owners of plot No. 23/2., admeasuring an area of 2621 sq. ft. situated at Block No. 31. On 18-6-2007 a show cause notice vide Annexure-P/2 was issued to the petitioner under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity 'the 2002 Act') for recovery of advance loan. The appellant-petitioner submitted his reply to the said notice issued by the respondent. The Akola Janta Commercial Cooperative Bank Ltd. The Bank as per Annexure-P/3 issued a notice for auction of the property of the petitioner under the provisions contained in 2002 Act. Invoking the jurisdiction of this Court under Article 226 of the Constitution of India the said notice was assailed on two counts, namely, (i) that the respondent is a Co-operative Bank and, therefore, the provisions of the 2002 Act are not applicable; and (ii) that the reply submitted by the petitioner has not been appositely considered by the Bank and auction notice has been issued in respect of the property for which it is vulnerable.

3. To substantiate the aforesaid stand reliance was placed on the decision rendered in Manoj Tarwala v. State of Madhya Pradesh and others, 2006 (3) MPHT 434 (DB) and Greater Bombay Co-operative Bank Ltd. v. M/s. United Yarn Tex, Pvt, Ltd. and others, 2007 AIR SCW 2325 : (AIR 2007 SC 1584). The learned Single Judge took note of the definition of 'bank' contained in Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, 1993 Act'), the definition of bank as defined under 2002 Act and placing reliance on an unreported decision of the Bombay High Court in M/s. Khaja Industries v. The State of Maharashtra and others passed in W. P. No. 2672/07, decided on 3-7-2007, AIR 2008 (NOC) 44 (Bom) : 2007 (5) AIR Bom R 722 expressed the opinion that the respondent-Bank is entitled under law to take action under the 2002 Act and, therefore, the writ petition being devoid of substance deserved to be dismissed. Being of this view the learned Single Judge directed dismissal of the writ petition.

4. Questioning the correctness of the order passed by the learned Single Judge Mr. Vipin Yadav, learned counsel for the appellant has raised the following contentions :

(a) The learned Single Judge has fallen into grave error by distinguishing the decision rendered in Manoj Tarwala (supra) by the Division Bench of this Court though the same is directly on the issue inasmuch as in the said decision it has been clearly held that a co-operative bank is not a bank under the provisions of Clause (c) of Section 5 of the Banking Regulations Act, 1949.

(b) The order passed by the learned Single Judge is vulnerable inasmuch as he has failed to appreciate the ratio in Greater Bombay Co-operative Bank Ltd. (AIR 2007 SC 1584) (supra) wherein the Apex Court has clearly held that the co-operative banks transacting business of banking do not fall within the meaning of 'banking company'. It is his further submission that the learned Single Judge should have appreciated the ratio on a studied appreciation of what has been stated in paragraphs 30 and 31 of the said decision.

(c) The learned Single Judge should have taken note of discussion of the Apex Court in paragraphs 30 and 31 of the decision to arrive at the conclusion that the respondent-bank cannot proceed under the 2002 Act and having not done so the order is sensitively susceptible.

5. Mr. Alok Aradhe, learned Senior Counsel resisting the aforesaid submissions canvassed the following proponements :

(i) The learned