Sangli Sahakari Bank Ltd., Bombay vs Divisional Joint Registrar, ...
2002 Latest Caselaw 387 Bom

JUDGMENT

F.I. Rebello, J.

1. Rule. Respondents waive service. Heard forthwith.

2. The petitioner/Bank had obtained a certificate under Section 101 against Rahul Bulk Carriers Proprietor Shri Prakashchandra A. Rai, Shri Sheshnath S. Rai and Shri Jagdishprasad B. Mistry. That certificate was issued on 10th May 2001. Pursuant to the certificate, the petitioner applied for attachment of a row -house owned by the judgment-debtor/Shri Prakashchandra A. Rai. The Recovery Officer attached the premises. The respondent Nos. 3 and 4 filed an application bearing Revision Application No.269 of 2001. The respondents filed objections on 14th March, 2001 before Special Recovery Officer contending that they had acquired right, title and interest in Flat No. VA-1 AND VA-2 in Tirupati Villa under an agreement dated 18th March, 2001 and the said agreements are registered on 18th April, 2001. It was an objection available under Rule 107 framed under the Co-operative Societies Act. The Special Recovery Officer after considering the documents rejected the contention.

3. Aggrieved respondent Nos. 3 and 4 preferred Revision Application No. 269 of 2001. The said revision came to be disposed off by order dated 29th November, 2001. The Revisional Authority held that the attachment of flat No. VA-1 AND VA-2 was illegal and consequently requested to set aside the same. The Revisional Authority also directed to quash the Recovery certificate dated 14th March, 2001 and consequently demand notice dated 10th May, 2001. That really could not have been done as recovery certificate and demand notice was against principal debtor and guarantors and could not have been challenged, even if at all by respondent Nos. 3 and 4. In powers under Section 227 of this Court, that part of the order will have to be interfered with.

4. On behalf of the petitioner, their principal contention is that no revision would be maintainable considering the provisions of Sub-rule 19 of Rule 107. More relevant is Rule 19(c) which reads as under:

"Where a claim or objection preferred to the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be final".

Relying on this provision, learned counsel contends that the revision preferred by the respondent Nos. 3 and 4 was without jurisdiction and consequently entire order is liable to be set aside.

It was also sought to be contended that from the material on record, there was nothing to show that title had vested in respondent Nos. 3 and 4. To my mind, considering the documentary evidence it is difficult to accept that contention.

5. The only contention, therefore, which will have to be dealt is the construction of Rule 107(19)(c). The learned counsel has drawn my attention to an unreported judgment of Single Judge of this court, in case of Apna Sahakari Bank v. Divisional Joint Registrar and Ors. decided on 14th June, 2001 in Writ Petition No. 1298 of 1997. On the construction of said rule, the Learned Judge has taken a view that once an objection is disposed off under that rule, the only remedy that a party has, would be, by way of filing of the suit. On behalf of the respondent Nos. 3 and 4, their learned counsel contended that no rule should be read in such a manner as to be ultra vires of Section 154 of the Act. For that purpose, the proper construction to be given to the rule will be that it becomes operative after the exercise of the revisional remedy under Section 154 of the Act.

With the above, we may now consider whether the construction given by the Learned Single Judge, is the construction which is sought to be advanced on behalf of the petitioner.

In the first instance, it may be pointed out that Section 154 and its effect on Rule 107(19)(c) was not considered or argued before the learned Single Judge. Rule was considered as it stood, without considering whether the rule if so read would be ultra vires the provisions of Section 154 of the Co-operative Societies Act. Considering that to my mind, if the answer to the contention would be that the rule would be rendered ultra vires Section 154, then the judgment of the learned Single Judge will be confined to the facts of that case and the issue raised therein.

6. Under Section 154 of the Maharashtra Co-operative Societies Act, 1960 in respect of any enquiry or proceedings other than those referred in Sub-section (9) of Section 149, the Authorities referred to in Section 154 have revisionary jurisdiction. This is the power conferred by statute so as to enable the revisional authorities to correct errors in the orders or decision of the authorities. Rule 107(19)(c) cannot be read de hors Section 154. The order passed under the rule cannot be said to be final. If so read, it would amount to excluding the revisionary powers conferred by Section 154, and as such ultra vires Section 154. It is a cardinal rule of interpretation that subordinate legislation cannot be contrary to the primary legislation, otherwise it would be ultra vires. A harmonious construction has to be, therefore, given which would not render the rule ultra vires. So, read the proper construction to Rule 107(l9)(c) would be that the right to file suit is still available even if the parties seek recourse to the remedy under Section 154 and after disposal of the revision. So read the rule can be read harmoniously. To my mind, therefore, that would be the proper construction to be given to the rule. Ultimately all that the revisional authority itself has to find out is whether the order of decision passed by the authorities is within jurisdiction. Failure to exercise jurisdiction or in the event the order suffers from procedural infirmity which go to the very root of the matter can only be interfered with. Considering that, to my mind judgment in Apna Sahakari Bank has to be read on the facts of that case, and the contentions argued before the learned Single Judge. The judgment, therefore, can be distinguished. It will, therefore, be open to the party to file the revision and then if still not statisfied to file a suit. A party may also without invoking the revisional powers file the suit.

7. It has further come on record that respondent Nos. 3 and 4 herein though they have entered into an agreement have yet to pay balance amount to the judgment debtors for the purchase of the said row house. Though the petitioner herein had a mortgage in their favour, that has been held to be invalid on the ground that the judgment debtors had falsified documents and as such there was no valid subsisting mortgage in favour of the petitioner/Bank. There was another mortgage in favour of another Bank which respondent Nos. 3 and 4 have made payment and the mortgage has been cancelled. To my mind it will, therefore, be in the interest of justice that respondent Nos. 3 and 4 deposit the balance amount due and payable before the Special Recovery Officer within eight weeks from today. The executing officer thereafter on hearing the petitioner, respondent Nos. 3 and 4 as also the judgment debtors to pass appropriate orders under law insofar as payment of said balance amount is concerned.

8. With the above observations, rule discharged petition disposed off. No order as to costs.