Bombay High Court
Vandana Kashinath Patil And Others vs The State Of Maharashtra Through The ... on 26 August, 2024
2024:BHC-AUG:19331 (1) wp-6044-2024 & ors..odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6044 OF 2024
KASHINATH SAKHARAM PATIL AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA THROUGH THE SECRETARY
AND OTHERS
AND
WRIT PETITION NO. 6029 OF 2024
RAJARAM DULLABH PATIL AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA THROUGH THE SECRETARY
AND OTHERS
AND
WRIT PETITION NO. 6135 OF 2024
ANITA KAILAS PATIL AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA THROUGH THE SECRETARY
AND OTHERS
AND
WRIT PETITION NO. 6136 OF 2024
GIRISH RAJARAM PATIL AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA THROUGH THE SECRETARY
AND OTHERS
AND
WRIT PETITION NO. 6138 OF 2024
SAKHARAM DULLABH PATIL DIED THROUGH LRS KAILAS
SAKHARAM PATIL AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA THROUGH THE SECRETARY
AND OTHERS
AND
WRIT PETITION NO. 6134 OF 2024
YOGITA SUBHASH PATIL AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA THROUGH THE SECRETARY
AND OTHERS
(2) wp-6044-2024 & ors..odt
AND
WRIT PETITION NO. 6153 OF 2024
VANDANA KASHINATH PATIL AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA THROUGH THE SECRETARY
AND OTHERS
AND
WRIT PETITION NO. 6139 OF 2024
KAILAS SAKHARAM PATIL AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA THROUGH THE SECRETARY
AND OTHERS
AND
WRIT PETITION NO. 6311 OF 2024
SUBHASH TUKARAM PATIL AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA THROUGH THE SECRETARY
AND OTHERS
...
Mr. Amit S. Savale, Advocate for the Petitioners.
Mr. A. V. Lavte, AGP for Respondent Nos.1, 2, 4 and 5.
Mr. A. G. Choudhari, Advocate for Respondent No.3.
...
CORAM : S. G. CHAPALGAONKAR, J.
DATED : 26th AUGUST 2024.
JUDGMENT:
-
1. Rule. Rule made returnable forthwith. By the consent of the
parties, matters are taken up for final hearing at the stage of
admission.
2. The petitioners impugn order dated 24.05.2024 passed by the
Collector and District Magistrate, Nandurbar bearing Outward
No.2024@x`g@d{k&2@M&2@dkfo&324, thereby directing Executive
Magistrate/Tahsildar, Shahada to hand over possession of the
properties to Recovery Officer of Shri. P. K. Anna Patil Janata
Sahakari Bank Limited, Nandurbar through Circle Officer in
(3) wp-6044-2024 & ors..odt
pursuance to the application filed by Special Recovery Officer
under Rule 107(11) of Maharashtra Co-operative Societies Rules,
1961 (for short 'MCS Rules, 1961').
3. Mr. Savale, learned Advocate appearing for petitioners
submits that petitioners were borrowers of loans from respondent
no.3-Co-operative Credit Society. Since there was default in
payment of loans, respondent no.3 obtained recovery certificates
against petitioners under Section 101 of the Maharashtra Co-
operative Societies Act, 1960 (for short 'MCS Act, 1960'). In
furtherance to such certificate, properties of the petitioners were
attached and charge was created.
4. The respondent no.3 initiated proceeding under Rule 107(11)
(d) of the MCS Rules, 1961 and sent proposal to respondent no.2 for
physical possession of the properties. Consequently, impugned
order dated 24.05.2024 has been passed directing respondent no.4
to hand over possession of the properties to respondent no.3.
5. Mr. Savale would submit that impugned order is passed
without giving opportunity of hearing to petitioners. He submits
that respondent no.3-Special Recovery Officer has no authority to
continue with recovery proceeding or approach respondent no.2 to
take steps in accordance with Rule 107(11) (d) of MCS Rules, 1961.
Consequently, order passed by respondent no.2 and action
proposed by respondent no.4 is null and void. He would submit
that in terms of Section 109 of the MCS Act, 1960, the term of
Liquidator expires after 10 years from the date of his appointment.
In present case, term of Liquidator was expired. The respondent
no.3-Special Recovery Officer cannot independently function, when
term of Liquidator under whose instruction respondent no.3 was
(4) wp-6044-2024 & ors..odt
functioning was expired. According to him, on expiry of term of
Liquidator, Credit Society is no more in existence and Recovery
Officer lacks jurisdiction to take steps, particularly move any
proceeding before the District Magistrate-respondent no.2. Mr.
Savale would invite attention of this Court to the provisions of
Section 105(c) and Section 156(b) of MCS Act, 1960 to contend that
on appointment of Liquidator under Section 103 of the MCS Act,
1960, the power to sell immovable or movable property or deal with
such property would vest with Liquidator. He would submit that
under Section 156 of the MCS Act, 1960, the Registrar or any
person appointed by him would have powers to make recovery.
However, Recovery Officer so appointed does not possess
independent power to take steps for recovery. He would, therefore
submit that on expiry of term of Liquidator, he become functus-
officio. Consequently, Recovery Officer would also loose his
authority to take any steps in furtherance to the recovery of dues
under Society under the Act.
6. By inviting attention of this Court to Rule 89(17) of MCS
Rules, 1961 he submits that on conclusion liquidation proceedings,
an actionable claims shall vest with Registrar, who may appoint a
custodian or receiver to realize such remaining assets and
actionable claims. However, in present case, on the date when
impugned order was passed, the Registrar had not appointed
custodian. Hence, proceeding initiated by Recovery Officer is ultra
vires and impugned order passed by the District Magistrate based
on requisition of Recovery Officer is null and void.
7. Per contra, Mr. Choudhari, learned Advocate appearing for
respondent no.3 referring to the affidavit-in-reply filed by Mr.
Virendrasinh Raghuwanshi, Special Recovery Officer submits that
(5) wp-6044-2024 & ors..odt
period of Liquidator has been enhanced to 15 years as per
amendment under Section 109(1) of the MCS Act, 1960. In present
case, after termination of liquidation proceeding by order dated
28.06.2024, the Registrar is pleased to appoint receiver/custodian
under provisions of Rule 89(17) of the MCS Rules, 1961.
Subsequently, said order was modified on 09.07.2024. He would
submit that in terms of Section 156 of the MCS Act, 1960 read with
Rule 2(h) of MCS Rules, 1961, Recovery Officer has every authority
to continue with the recovery proceedings independent of
liquidation proceedings. He points out that recovery certificates
issued under Section 101 of the MCS Act, 1960 against the
petitioners have attained finality. The challenge raised by the
petitioners by filing Revision under Section 154 and writ petitions
have been failed. The petitioners made various attempts to stall
recovery proceedings. The recovery proceeding is delayed by more
than five years. In pursuance of the directions of this Court in
Writ Petition No.4582/2024, respondent no.2 has taken action
regarding possession of properties attached. The huge dues of
Maharashtra State Co-operative Bank and depositors are awaiting
for disbursement of the amount. He would submit that now
Registrar has appointed receiver/custodian, who can take
possession of the properties in pursuance of the impugned order.
The petitioners do not have any right or locus to raise grievance at
this stage. Therefore, he seeks to dismiss the writ petitions.
8. Having considered submissions advanced, apparently
petitioners have lost battle and suffered final order under Section
101 of the MCS Act, 1960. Their mortgaged or charged properties
are sought to be possessed by respondent no.3 by initiating
proceeding before respondent no.2. The Recovery Officer is
empowered under Section 156 of the MCS Act, 1960 r/w Rule 2(h)
(6) wp-6044-2024 & ors..odt
of the MCS Rules, 1961 to take steps for recovery of dues, although
term of Liquidator is expired. From the provisions of Maharashtra
Co-operative Societies Act or Rules it is not discernible that term of
Recovery Officer is co-terminus with Liquidator. The Recovery
Officer appointed under MCS Act would continue to function and
answerable to Registrar and in case of appointment of
receiver/custodian, mortgaged property can be given into his
possession. In present case, admittedly Registrar has appointed
receiver/custodian in exercise of powers under Rule 89(17) of MCS
Rules, 1961 and possession of mortgaged properties can be handed
over to receiver/custodian.
9. Pertinently, Recovery Officer appointed under Section 156 of
the MCS Act, 1960 is empowered to exercise the powers of
Registrar under Section 156 in the district. The exercise of such
powers are not dependent upon term of Liquidator. Therefore,
assuming that term of Liquidator was expired, there was no
express or implied bar on the authority of the Recovery Officer to
take steps by filing application to respondent no.2 seeking
possession of mortgaged properties of borrowers. Therefore,
contentions raised on behalf of the petitioners are liable to be
rejected. Pertinently, petitioners have lost right in the properties
mortgaged with the Bank. They cannot put hurdle in recovery
proceedings by putting some technical reasons. In that view of the
matter, Writ Petitions san merit, hence, dismissed.
10. Rule is discharged.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/August-2024
