Bombay High Court
Dr Babasaheb Ambedkar Nagari Sahakari ... vs The Divisional Joint Registrar Co ... on 1 July, 2024
2024:BHC-AUG:12531
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10602 OF 2019
DR. BABASAHEB AMHEDKAR NAGARI SAHAKARI
BANK LTD. AURANGABAD THROUGH ITS MANAGER
VERSUS
THE DIVISIONAL JOINT REGISTRAR
COOPERATIVE SOCIETIES AURANGABAD DIVISION
AURANGABAD AND OTHERS.
...
Mr. K.J. Suryawanshi, Advocate for the petitioner
Mr. A.N. Nagarkar, Advocate for respondent Nos. 2 to 4.
CORAM : S.G. CHAPALGAONKAR, J.
RESERVED ON : 27th JUNE, 2024.
PRONOUNCED ON : 1st JULY, 2024.
ORDER :
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1. The petitioner impugns the order dated 8.4.2019 passed by
the Divisional Joint Registrar (Co-operative Societies) Aurangabad -
Respondent No.1, in Misc. Application No. 20 of 2018 by which, the
application for condonation of delay preferred by respondent Nos. 2 to 4
in filing revision under Section 154 of the Maharashtra Cooperative
Societies Act, 1960 has been allowed.
2. Mr. K.J. Suryawanshi, learned advocate for the petitioner
submits that the husband of respondent No.2 and father of respondent
Nos. 3 and 4 - Mr. Natha Annasaheb Dudhwade had obtained loan of Rs.
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25 Lakhs from petitioner bank in the year 2011. On his failure to repay
the loan, the Recovery Certificate under Section 101 of the Maharashtra
Cooperative Societies Act, 1960 has been issued by the Deputy Registrar
Cooperative Societies in favour of the petitioner bank showing
recoverable amount of Rs. 27,16,144/- alongwith interest @ 14% p.a.
w.e.f. 1.1.2012. Since the borrower failed to deposit loan amount as per
the recovery certificate, his property was attached and put to auction
sale. But, no offer was received. The auction sale notice dated 22.2.2013
was challenged by the borrower in Revision Application No. 16 of 2013
before the Divisional Joint Registrar. The said revision application came
to be dismissed on 22.10.2013. Finally, the bank initiated proceeding
under Section 100 r/w. Rule 85 of the Maharashtra Cooperative Societies
Rules for transfer of the property in the name of bank. The District
Deputy Registrar, Aurangabad allowed the application of the bank vide
order dated 29.6.2015. The respondent Nos. 2 to 4/legal representatives
of borrower filed Revision Application challenging the order dated
29.6.2015 alongwith application seeking condonation of delay of 2 years
and 7 months before the Divisional Joint Registrar which has been
allowed without justifiable reasons.
3. Mr. Suryawanshi would criticize observations in the
impugned order which states that respondent Nos. 2 to 4 were not aware
about the impugned order, or delay cannot be attributed as intentional.
He would submit that already, house property is possessed by the bank
which is only asset to recover huge dues outstanding in loan account of
late borrower - Natha.
4. Per contra, Mr. A.M. Nagarkar, learned advocate for
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respondent Nos. 2 to 4 would submit that the borrower - Natha
Dudhawade expired on 27.10.2017. The respondent Nos. 2 to 4 were
unaware about the proceeding initiated by the bank. However, when the
possession of the property is taken, immediately steps are taken to file
revision application against the order dated 29.6.2015. As such, the
delay caused in filing the revision application was duly explained and
rightly condoned by the Divisional Joint Registrar.
5. Having considered the submissions advanced, it is apparent
that the order dated 29.6.2015 passed by the District Deputy Registrar,
Aurangabad, permitting transfer of the house property in favour of the
bank has been challenged by respondent Nos. 1 to 4 in Revision filed
under section 154 of the Cooperative Societies Act. The original
borrower - Natha Dudhawade, died on 27.10.2017. It is true that he
could not challenge the order dated 29.6.2015 during his lifetime.
However, there is no reason to disbelieve the contentions of respondent
Nos. 2 to 4 that they were not noticed about any proceeding initiated by
the bank and delay occasioned is unintentional. The Divisional Joint
Registrar accepted the aforesaid explanation and passed order
condoning the delay. Considering the reasoning adopted by the
respondent No.1 in the impugned order, no fault can be found in the
ultimate conclusion.
6. At this stage, Mr. K.J. Suryawanshi, appearing for the
petitioner submits that the Revision Application filed by the respondent
Nos. 2 to 4 cannot be entertained in absence of deposit of 50% of
recoverable dues, which is a condition precedent where there is a
challenge to the recovery certificate. The application of such condition
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has to be made even to any further proceeding to enforce the recovery
certificate. In support of his contentions, he relies upon the judgment of
this Court in the case of Barindra Overseas Private Limited and another
vs. Shilpa Shares and Securities and others reported in 2019(3) Mh.L.J.
651.
On a specific query by this Court as regards deposit of
amount Mr. A.M. Nagarkar, learned advocate for respondent Nos. 2 to 4
confirms that no such deposit is made. However, he submits that house
property is already taken in possession by the bank and the respondent
Nos. 2 to 4 are without shelter.
7. It cannot be disputed that the condition stipulated in sub-
section 2A of Section 154 is introduced so as to ensure speedy recovery
of the dues specified under Section 101 of the Act. Even such mandate
ensures to curtail long drawn litigation.
8. Perusal of record shows that objection regarding non
compliance of the condition of pre-deposit was never raised before the
respondent No.1. Although there is substance in the contention of Mr.
Suryawanshi that even application for delay condonation caused in filing
the Revision Application under Section 154 could not have been
entertained without compliance of pre-condition of deposit, on prima
facie consideration of the nature of litigation, it can be observed that
revision application filed by respondent Nos. 2 to 4 takes exception to the
order passed under Section 100(2) of the Act read with Rule 85 of the
Maharashtra Cooperative Societies Rules, 1961. There is no challenge to
the recovery certificate or challenge to the auction process. Prima facie,
it would be debatable as to apply pre-deposit condition in such a case,
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particularly when the property is already in possessed by bank. However,
this issue can be kept open to be raised before the respondent No.1, who
shall take further decision in this regard after hearing all concerned.
9. In that view of the matter, there is no substance in the writ
petition. Writ petition stands dismissed. However, respondent No.1 shall
expeditiously decide the revision application filed by respondent Nos. 2
to 4, within a period of four months from the date of this order.
[S.G. CHAPALGAONKAR]
JUDGE
grt/-
