Allowed

The National Cooperative Bank Ltd. v. M/S. Shilpa Shares and Securities and 6 Ors.

Bombay HC13 Jun 2018WP/650/2014

Case brief

AI extract

What is this about?

Challenge by auction purchasers and the lender bank to orders setting aside a second auction sale of mortgaged property and condoning delay in the revision. Held, the revision was not maintainable without the borrowers depositing 50% of the recoverable dues under section 154(2A) of the MCS Act. Both petitions allowed; revision restored for fresh disposal.

What did the court decide?

Writ petitions allowed in terms of prayer clause (a); Revision Application No.395 of 2010 restored; borrowers to deposit 50% under section 154(2A) within six weeks, failing which it stands dismissed.

The National Cooperative Bank Ltd. Vs M/S. Shilpa… — Cooperative Societies | Bombay HC (2018)

¶1

1 judgment in wp 57214c and wp 65014o

¶2

Priya Soparkar

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.572 OF 2014

¶4

Barindra Overseas Private Ltd. ) A company duly registered under ) the provisions of the Companies ) Act, 1956, ) Through its Director Mr. Dhanesh) Vipin Parikh, having its office at, ) C-101, Innova, Marathon ) Nextgen, Off G.K.Marg, ) Opp. Peninsula Corporate Park, ) Lower Parel West,Mumbai – 13. )

¶5

2. Mr.P.N.Chitalia, ) A-18, Nandbhuvan Industrial Estate,) Ground Floor, Opp. Society Office, ) Opp. Onida House, M.I.D.C. ) Mahakali Caves Road, Chakala, ) Andheri East, Mumbai 400 093. )

¶6

... Petitioners

¶7

Vs.

¶8

1. Shilpa Shares and Securities, ) A registered partnership firm ) having its address at ) Marol Maroshi Road, ) Near Marol Police Station, ) Andheri East, Mumbai 400 059. )

¶9

2. Hemant Sapale, ) An adult, Indian Inhabitant ) having his address at ) Pundalik Road, Vile Parle East, ) Mumbai 400 093. ) 3. Shilpa Hemant Sapale, ) An adult, Indian Inhabitant ) having his address at ) Pundalik Road, Vile Parle East, )

¶10

2 judgment in wp 57214c and wp 65014o

Priya Soparkar

Mumbai 400 093.

)

4. The National Co-operative Bank Ltd.) 12-B, Vatsa House, 2nd Floor, ) Janmabhoomi Marg, Fort, ) Mumbai 400 001. )

¶15

5. Divisional Joint Registrar, ) Co-operative Societies, being the ) Revisional Authority under the ) Maharashtra Co-operative ) Societies Act, 1960. ) Through the office of the ) Government Pleader, High Court. )

¶16

6. The Special Recovery Officer ) attached to ) The National Co-operative Bank Ltd.) 12-B, Vatsa House, 2nd Floor, ) Janmabhoomi Marg, Fort, ) Mumbai 400 001. ) ... Respondents

¶17

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.650 OF 2014

¶18

The National Co-operative Bank Ltd.) 12-B, Janmabhumi Bhuvan, Vatsa ) House, Janmabhumi Marg, Fort, ) Mumbai 400 001. ) ... Petitioner

¶19

Vs.

¶20

1. M/s Shilpa Shares and Securities,) A registered partnership firm ) Sub-tenant and carrying on business) at Parvati Niwas in one room of ) Entire 3rd Floor Tenement No.13, ) Mahant Road Extension, Vile Parle) (East), Mumbai 400 057 )

¶21

3 judgment in wp 57214c and wp 65014o

¶22

Priya Soparkar

¶23

also having address at ) Pundalik Niwas, Paranjpe 'B' ) Scheme, Road No.1, Vile Parle ) (East), Mumbai 400 057. )

¶24

2. Mr.Hemant Radhakrishna Sapale,) Indian Inhabitant, residing at, ) Parvati Niwas, Entire 3rd Floor ) Tenement No.13, Mahant Road ) Extension, Vile Parle(East), ) Mumbai 400 057. ) also having address at ) Pundalik Niwas, Paranjpe 'B' ) Scheme, Road No.1, Vile Parle ) (East), Mumbai 400 057. ) 3. Mrs.Shilpa Hemant Sapale, ) Indian Inhabitant, residing at, ) Parvati Niwas, Entire 3rd Floor ) Tenement No.13, Mahant Road ) Extension, Vile Parle(East), ) Mumbai 400 057. ) also having address at ) Pundalik Niwas, Paranjpe 'B' ) Scheme, Road No.1, Vile Parle ) (East), Mumbai 400 057. )

¶25

4. P.N.Chitalia, Indian, ) A-18, Nandbhuvan Industrial Estate,) Ground Floor, Opp. Society Office, ) Opp. Onida House, M.I.D.C. ) Mahakali Caves Road, Chakala, ) Andheri East, Mumbai 400 093. )

¶26

5. Barindra Overseas Private Ltd., ) B-3, Janvikas, Sunder Lane Oriem,) Malad (West), Mumbai 400 064. ) 6. Divisional Joint Registrar, ) Co-operative Societies, ) Mumbai Division, 6th Floor, )

¶27

Priya Soparkar 4 judgment in wp 57214c and wp 65014o

¶28

Malhotra House, Mumbai 400 001. )

¶29

7. The Special Recovery Officer ) attached to ) The National Co-operative Bank Ltd.) 12-B, Vatsa House, 2nd Floor, ) Janmabhoomi Marg, Fort, ) Mumbai 400 001. ) ... Respondents

¶30

Mr.Prateek Seksaria with Ms.Heena Chheda, Mr. Bharatkumar Jain and Mr.Ashish Venugopal i/by M/s Hariani & Co. for the Petitioner.

¶31

Mr.Ajit N. Jakhadi with Mr.Amol A.Chile, Mr.Arun A. Chile and Mr. Vikram A. Jakhadi for Respondent Nos.1 to 3.

¶32

Mr.Sukanta Karmarkar, AGP for the State-Respondent No.6.

¶33

¶34

CORAM : R.D. DHANUKA, J.

¶35

RESERVED ON : 21^st APRIL, 2018

¶36

PRONOUNCED ON : 13^th JUNE, 2018

¶37

JUDGMENT:

¶38

By these two petitions filed under Article 227 of the Constitution of India, the petitioners have impugned the order dated 20^th May, 2013 and the order of condonation of delay dated 17^th January, 2012 passed by the learned Divisional Joint Registrar, Co-operative Societies, Mumbai Division, the respondent no. 5 herein thereby allowing the revision application filed by the respondent nos. 1 to 3 and condoning the delay in filing the revision application.

¶39

By consent of parties, both the matters were heard together and are being disposed off by a common order.

¶40

5 judgment in wp 57214c and wp 65014o

¶41

Priya Soparkar

¶42

Some of the relevant facts for the purpose of deciding these petitions are as under :-

¶43

Writ Petition No. 572 of 2014, is filed by the purchasers of the property known as “Parvati Niwas” consisting of ground plus three floors standing on land ad-measuring 478.68 sq.meters situated at Mahant Road, Vile Parle (E), Mumbai, 400 057. The respondent no.1 was the borrower and has availed of various facilities from the respondent no.4 i.e. the National Co-operative Bank Limited. The respondent nos.2 and 3 are the partners of respondent no.1. The respondent no.5 is the Divisional Joint Registrar Co-operative Societies. The respondent no.6 is the Special Recovery Officer attached to the National Co-operative Bank Limited. The petitioners in Writ Petition No.572 of 2014 are hereinafter described as the auction purchasers. The respondent nos.1 to 3 are hereinafter described as the borrowers. The respondent no.4 - bank is described as the lender. The petitioner in Writ Petition No. 650 of 2014 is the lender.

¶44

The respondent No.2 i.e. Mr. Hemant Sapale, who is the partner of the respondent no. 1 was the owner of the property known as “Parvati Niwas” described aforesaid. On 3^rd September, 1997, the respondent no.1 applied for certain loan facilities from the said lender. The respondent no. 2 stood as guarantor to the said loan and deposited the title documents in respect of the said mortgage property as the collateral security in favour of the said lender. The borrower had defaulted in making repayment of the loan obtained from the said lender. The lender thus filed recovery proceedings on 26^th December,

¶45

Priya Soparkar 6 judgment in wp 57214c and wp 65014o

¶46

2000 inter-alia praying for a recovery certificate under Section 101 of the Maharashtra Co-operative Societies Act, 1960 (Said MCS Act) against respondent no. 1 and its guarantor for a sum of Rs. 56,77,016/- with further interest. The Assistant Co-operative Society issued recovery certificate against the said borrowers and guarantors i.e. respondent nos. 1 to 3.

¶47

Being aggrieved by the said recovery certificate, the respondent nos.1 to 3 filed a Revision Application No.212 of 2001 on 4^th April, 2001 before the respondent no.5. The said borrowers also challenged the said recovery certificate by filing Writ Petition bearing no.2131 of 2001 before this court. This court by order dated 30^th April, 2001 directed the Divisional Joint Registrar to treat the deposit of Rs.5,00,000/- paid by the purchasers towards the compliance of Section 154(2A) of the MCS Act and further directed to deal with the said revision application filed by the borrowers in due process of law. The Special Recovery Officer attached to the lender passed an order attaching the said mortgage property belonging to respondent no.2 on 2^nd May, 2001. On 18^th August, 2001 the lender took possession of the said property together with vacant possession of the third floor, which was occupied by the respondent nos. 2 and 3, who are partners of the respondent no.1.

¶48

On 1^st February, 2002 the Special Recovery Officer conducted an auction in respect of the said mortgage property. On 11^th June, 2002, the first revision application filed by the borrowers came to be dismissed by the learned Divisional Joint Registrar. The revision applications filed by the borrowers i.e. nos. 2 of 2001, 47 of 2002 were

¶49

Priya Soparkar 7 judgment in wp 57214c and wp 65014o

¶50

dismissed on account of the borrowers not depositing 50% of the amount of the recovery certificate under Section 154 (2A) of the said MCS Act. Since the auction purchaser of the first auction withdrew its bid, the said auction came to be cancelled. In view of the cancellation of the said auction, the Divisional Joint Registrar dismissed another Revision Application No.444 of 2002, which was filed by the borrowers.

¶51

The borrowers thereafter filed a writ petition bearing No.105 of 2003 in this court challenging the order passed by the learned Divisional Joint Registrar. By an order dated 13^th January, 2003 this court rejected the petition no.105 of 2003 at the stage of admission itself. The review petition filed by the borrowers in the said Writ Petition No.105 of 2003 also came to be rejected by this court by an order dated 7^th March, 2003. Being aggrieved by this order passed by this court in the said writ petition, the borrowers filed Special Leave Petition. By an order and judgment dated 2^nd May, 2007 the Supreme Court allowed the Civil Appeals bearing Nos.6760 and 6761 of 2004 filed by the borrowers and was pleased to set aside the first auction.

¶52

The borrowers thereafter filed an application for one time settlement with the lender somewhere in the year 2006. The said proposal of one time settlement was rejected by the said lenders on the ground that the same was not within the norms of the RBI. The borrowers thereafter filed a writ petition bearing no.1188 of 2007 praying for a direction to the said lender and considering the one time settlement submitted by the borrowers. This court disposed of the said writ petition without granting any relief in favour of the borrowers. The

¶53

Priya Soparkar 8 judgment in wp 57214c and wp 65014o

¶54

borrowers thereafter filed a Writ Petition bearing No.97 of 2008 inter alia praying an implementation of the order passed by this court in writ petition no.1188 of 2007. The said writ petition also came to be dismissed by this court.

¶55

In view of the Hon’ble Supreme Court setting aside the first auction conducted by Special Recovery Officer attached to the said lender, a fresh auction notice dated 5^th January, 2008 came to be issued in various newspapers for sale of the said mortgage property. The auction purchasers herein submitted their bid pursuant to the said public notice issued by the Special Recovery Officer. The Special Recovery Officer conducted an auction on 11^th February, 2008. It is the case of the petitioners that the petitioner no.2 participated and made a bid on behalf of the petitioner no.1–company and was the highest bidder for an amount of Rs.5,05,00,000/-. The said auction was completed only around 3.00 p.m. on 11^th February, 2008. The Officers of the said lender thereafter made a demand for deposit of 15% of the highest bid amount by way of demand draft/pay order payable under Rule 107(11) (g) of the Maharashtra Co-operative Societies Rules, 1961 (for short referred to as the said MCS Rules).

¶56

It is the case of the auction purchasers that the banking hours were over by the time, the demand in respect of the 15% amount of the bid amount of Rs.5,05,00,000/- was made. The deposit of a sum of Rs.1 crore which was more than the amount of 15% of the bid amount was made by a demand draft on 13^th February, 2008. On 23^rd February, 2008 the auction purchaser deposited the balance amount within the stipulated time limits of 15 days.

¶57

9 judgment in wp 57214c and wp 65014o

¶58

Priya Soparkar

¶59

On 5^th March, 2008 the borrowers filed an application bearing No. 1 of 2008 alongwith an application seeking ad-interim reliefs under section 156 of the said MCS Act, before the Special Recovery Officer inter-alia praying for cancellation of second auction on the ground that the said lender have failed to consider the said one time settlement proposal given by the borrowers and also on the ground that the auction purchasers had not paid the bid amount of Rs.5.05 crores and even 15% thereof within the time prescribed under the said MCS Rules.

¶60

On 5^th March, 2008 the respondent nos. 1 to 3 also filed a Revision Application No.93 of 2008 before the Divisional Joint Registrar inter alia praying for an order of permanent injunction restraining the said lender from execution of the said recovery certificate as contemplated in the second auction on the ground that the said second auction was not conducted in compliance with Rule 107 of the said MCS Rules. The said borrowers also applied for ad-interim relief in the said revision application.

¶61

Sometime in the month of March 2008, the Revision Application No.1 of 2008 was heard and was reserved for orders. The Special Recovery Officer passed an order rejecting the Application No. 1 of 2008 filed by the said borrowers. On 31^st March, 2008, the Special Recovery Officer confirmed the second auction.

¶62

On 1^st April, 2008 the said lender addressed a letter to the borrowers and informed that the second auction sale was confirmed and

¶63

10 judgment in wp 57214c and wp 65014o

¶64

Priya Soparkar

¶65

possession of the said property was already handed over to the auction purchaser. The borrowers were also informed that out of the sale proceeds received by the said lender, an amount of Rs.1,13,75,974/was recovered and appropriated by the said lender and balance amount of Rs.3,91,24,026/- was transferred to the Current Account No.3501 of respondent no.1. The said lender also requested the said borrowers to take possession of movables lying in the said property which was mortgaged in favour of the said lender.

¶66

It is the case of the auction purchaser that on 2^nd April, 2008 the Special Recovery Officer informed the borrowers about the order of rejection of Application No.1 of 2008. The documents, however, were returned unclaimed. An intimation was thus posted on 4^th April, 2008.

¶67

On 9^th April 2008, the borrowers filed an Application No. 2 of 2008 inter alia challenging the second auction and also filed an application for condonation of delay before the Special Recovery Officer on the ground that Mr. P.N. Chitalia, the petitioner no.2 had submitted the bid in the second auction in his personal capacity and not in any representative capacity of the specified person. By an order dated 24^th April, 2008 the Special Recovery Officer rejected the said Application No.2 of 2008 filed by the said borrowers. On 23^rd May, 2008 the said borrowers made an application for certified copy of the entire Roznama of Application Nos. 1 and 2 of 2008 to enable the borrowers to file an appeal.

¶68

11 judgment in wp 57214c and wp 65014o

¶69

Priya Soparkar

¶70

On 26^th May, 2008 the Special Recovery Officer issued a certificate of sale under Rule 107(14)(III) of the said MCS Rules, in favour of the auction purchaser. The auction purchaser thereafter paid stamp duty of Rs.25,25,000/- on the said certificate of sale issued by the Special Recovery Officer.

¶71

The said borrower through their Advocate’s letter dated 13^th June, 2008 to the said lender and the said Special Recovery Officer disputed the contents of the Case Credit Account No.3501 of the borrower on 31^st March, 2008 and also disputed the credit of an amount of Rs.3,91,24,026/- in the name of the respondent no.1. On 18^th September, 2008 the Revision Application No.93 of 2008 filed by the said borrower came to be rejected at the admission stage in view of the borrowers not having complied with the provisions of Section 154 (2A) of the said MCS Act, by not depositing 50% amount mentioned in the Recovery Certificate.

¶72

On 20^th September, 2008, Jeetendra Bhimshi Shah, one of the participant at the second auction filed a declaration and alleged that a perusal of the proceedings of the public auction of the immovable property dated 11^th February, 2008, indicated that the name “Ashar or Askar Diamond Industry Limited” had been scored off and the words “for and on behalf of nominee M/s.Barindra Overseas Private Limited” appears to have been inserted, bracketed and counter signed by P.N. Chitalia.

¶73

12 judgment in wp 57214c and wp 65014o

¶74

Priya Soparkar

¶75

On 28^th January, 2010, this Court dismissed the Writ Petition No.1576 of 2009 which was filed by the borrowers thereby impugning the order dated 18^th September, 2008 passed by the respondent no.5, inter-alia praying for quashing and setting aside the second auction and for carrying out an agreed and legal modifications as per the sanctioned one time settlement alleged to have been sanctioned in favour of the borrowers. The said writ petition came to be dismissed by this Court on the ground that the borrowers had not deposited 50% of the amount of recoverable dues with the lenders as per the provisions of section 154(2A) of the said M.C.S. Act. The borrowers challenged the said order dated 28^th January, 2010 passed by this Court before the Hon'ble Supreme Court of India by filing Special Leave Petition (Stamp) No.18073 of 2010. The Supreme Court dismissed the said special leave petition and observed that the Revision Application No.93 of 2008 filed by the borrowers was not even otherwise maintainable as the auction purchasers were not made parties to the said revision application.

¶76

On 3^rd November, 2010, the borrowers filed a fresh Revision Application bearing No.395 of 2010, inter-alia challenging the second auction. The borrowers also filed an application for condonation of delay in filing the revision application. It was alleged in the said revision application that a copy of the order in Revision Application No.1 of 2008 was not available. On 26^th July, 2011, the Divisional Joint Registrar allowed the amendment to the Revision Application No.395 of 2010 pursuant to which the borrowers added the additional grounds of challenge. On 23^rd August, 2011, the auction purchasers filed an

¶77

13 judgment in wp 57214c and wp 65014o

¶78

Priya Soparkar

¶79

application before the Divisional Joint Registrar in the said Revision Application No.395 of 2010 inter-alia praying for dismissal of the said revision application on the ground that the same was not maintainable in view of the borrowers not having complied with the mandatory requirements of section 154(2A) of the said M.C.S. Act. On 17^th January, 2012, the Divisional Joint Registrar passed an order thereby condoning the delay in filing the Revision Application No.395 of 2010 and directed the parties to maintain status-quo in respect of the second auction.

¶80

On 23^rd October, 2012, the auction purchasers challenged the order dated 17^th January, 2012 passed by the Divisional Joint Registrar by filing a Writ Petition bearing No.3573 of 2012 in this Court. This Court admitted the said Writ Petition No.3573 of 2012 on 23^rd August, 2012, however, did not grant any interim relief to the auction purchasers.

¶81

In the month of January, 2013, the lenders Bank filed its written arguments in the Revision Application No.395 of 2010 contending that the said revision application was barred by the principles of res-judicata and that the borrowers had failed to deposit the amounts in compliance with section 154(2A) of the said M.C.S. Act. On 20^th May, 2013, the Divisional Joint Registrar passed an order thereby allowing the Revision Application No.395 of 2010 and was pleased to set aside the second auction conducted by the Special Recovery Officer. On 1^st October, 2013, the lenders Bank filed a Writ Petition No.650 of 2010 in this Court against the borrowers and the auction purchasers. On 31^st December, 2013, the borrowers filed the Writ Petition bearing

¶82

14 judgment in wp 57214c and wp 65014o

¶83

Priya Soparkar

¶84

No.173 of 2014 before this Court inter-alia praying for a direction that the lender shall process the application filed by the borrowers for one time settlement and for other consequential reliefs. By an order dated 20^th March, 2014, this Court dismissed the said Writ Petition No.173 of 2014 mainly on the ground that the Writ Petition No.650 of 2014 and Writ Petition No.572 of 2014 were still pending before this Court. On 30^th April, 2014, this Court passed an order directing the parties to maintain status-quo in the writ petition.

¶85

On 20^th June, 2014, in view of the final order having been passed in the Revision Application No.395 of 2010, the auction purchasers withdrew the Writ Petition bearing No.3573 of 2012. On 26^th July, 2014, the borrowers filed a Special Leave Petition bearing No.24712 of 2014 against the order dated 20^th March, 2014 passed in the Writ Petition No.173 of 2014 by this Court. On 20^th September, 2014, the Supreme Court passed an order directing the borrowers to deposit an amount of Rs.44,97,000/- with the lenders Bank as a pre-condition for issuance of notice in the said Special Leave Petition No.24712 of 2014. The borrowers deposited deposited the said amount of Rs.44,97,000/with the respondent no.4 lender.

¶86

On 19^th April, 2016, the Supreme Court passed an order thereby setting aside the impugned judgment passed by this Court dated 20^th March, 2014 in Writ Petition No.173 of 2014. The Supreme Court issued a direction to restore the said writ petition to the file of this Court for a consideration afresh, after disposal of the Writ Petition No.572 of 2014 and Writ Petition No.650 of 2014.

¶87

15 judgment in wp 57214c and wp 65014o

¶88

Priya Soparkar

¶89

On 6^th December, 2017, this Court admitted both these writ petitions and granted interim relief in terms of prayer clause (b) in Writ Petition No.572 of 2014 and issued further directions to the effect that the auction purchasers shall not part with possession, alienate or create any third party rights or encumbrances on the property in question without obtaining the leave of the Court after at least three week's prior notice to the borrower's advocate. It was further directed that the auction purchasers shall not claim any equities arising from the admission of these petitions and that the rights of the auction purchasers to occupy and possession of the flat and its title subject to the out come of these petitions.

¶90

Mr.Seksaria, leaned counsel appearing for the auction purchasers invited my attention to the pleadings and the documents annexed to the writ petition filed by his client, some of the annexures to the Writ Petition No.1576 of 2009. It is submitted that his clients were legally advised that as per the provisions of the said M.C.S. Act, the cheque amount for the deposit of 15% would be accepted in the event of his client would be successful in the bid. The auction purchasers had provided its representative i.e. the petitioner no.2 an authority to call for a cheque amounting to 15% of the bid amount. The auction purchasers had necessary resources to deposit the amounts and to arrange for pay order or demand draft. He submits that the auction proceedings had taken the entire day. The said auction was completed in the after-noon on 11^th February, 2008. The bank officers only thereafter around 3:00 p.m. made a demand of 15% of the bid amount offered by the auction purchasers by way of demand draft / pay order. He submits that though

¶91

16 judgment in wp 57214c and wp 65014o

¶92

Priya Soparkar

¶93

the amount of 15% was ready and available with them, the pay order / demand draft could not have been prepared and kept till such time highest bid was declared and the highest bid amount was known and was confirmed by the bank in its auction.

¶94

It is submitted that the demand draft could have been asked so long as the bank working hours were available to the auction purchasers. Since the bank working hours were over, it was not possible to secure the demand draft immediately. He submits that in that event the demand by the Special Recovery Officer for pay orders / demand draft immediately was not in the line with the provisions of the said M.C.S. Act read with Rules. The demand draft however, for Rs.1.00 crore was ready on 13^th February, 2008. When these difficulties were explained to the Special Recovery officer, the said Special Recovery Officer was pleased to accept the said demand draft of Rs.1.00 crore and also accepted the remaining amount subsequently which amounted to constructive compliance of the provisions of the said M.C.S. Act and its Rules.

¶95

It is submitted by the learned counsel that the borrowers had applied for setting aside the said auction and the recovery proceedings under Rule 107(14) of the said M.C.S. Rules however, avoided to attend the said proceedings before the concerned authority and did not pursue the said application. The said application thus filed by the borrowers came to be dismissed by the Special Recovery Officer of the bank by passing a reasoned order. On the application made by the bank, the said auction sale was confirmed in favour of the auction purchasers on 24^th March, 2008 . The sale came to be confirmed by the

¶96

17 judgment in wp 57214c and wp 65014o

¶97

Priya Soparkar

¶98

learned Registrar on 16^th July, 2008. The Special Recovery Officer issued a certificate of sale on 27^th May, 2008. The lender bank thereafter handed over possession of the suit premises along with vacant flat to the auction purchasers and since then the auction purchasers are in uninterrupted use, occupation and possession of the said premises along with vacant flat.

¶99

It is submitted by the learned counsel that the said revision application filed by the borrowers challenging the second auction and the recovery certificates was dismissed by the learned Divisional Joint Registrar by an order dated 18^th September, 2008 on the ground that the borrowers had not deposited 50% of the amount of the recoverable dues of the lender bank. The writ petition (1576 of 2009) filed by the borrowers against the said order also came to be dismissed by this Court on 28^th January, 2010 on the ground that the borrowers had failed to deposit 50% of the dues under the recovery certificate under section 154(2A) of the said M.C.S. Act. The special leave petition filed by the borrowers came to be dismissed by the Supreme Court on 24^th September, 2010. In the said order, the Supreme Court however, observed that the said revision application itself was not maintainable on the ground that the auction purchasers were not impleaded as party respondents to the said original revision application. He submits that the order thus passed by the learned Divisional Joint Registrar dismissing the revision application filed by the borrowers thereby impugning the auction sale in respect of the property in question attained finality against the borrowers.

¶100

18 judgment in wp 57214c and wp 65014o

¶101

Priya Soparkar

¶102

It is submitted by the learned counsel that the impugned order passed by the Divisional Joint Registrar on 20^th May, 2013 in Revision Application No.395 of 2010 was in gross violation of the principles of res-judicata and also in violation of the orders passed by this Court on 28^th January, 2010 and the order passed by the Supreme Court of India dated 24^th September, 2010 by which the revision application filed by the borrowers was dismissed without granting any liberty to them to file any fresh revision application or any other proceedings. Learned Divisional Joint Registrar thus could not have entertained the second revision application since the same was filed by the borrowers without obtaining any leave from the Hon'ble Supreme Court.

¶103

In his alternate submission, it is submitted by the learned counsel for the auction purchasers that though specific objection was raised by the auction purchasers about the maintainability of the said revision application filed by the borrowers on the ground that the borrowers had not complied with the mandatory requirements of deposit of 15% of the successful bid amount in compliance with section 154(2A) of the said M.C.S. Act, the Divisional Joint Registrar did not bother to consider the said objection raised by the auction purchasers as well as the lenders and allowed the said revision application filed by the borrowers contrary to the well settled principles of law laid by the Supreme Court and this Court and also contrary to section 154(2A) of the said M.C.S. Act. Compliance of section 154(2A) of the said M.C.S. Act is mandatory. The order passed by the Divisional Joint Registrar thereby entertaining the revision application filed by the borrowers is

¶104

19 judgment in wp 57214c and wp 65014o

¶105

Priya Soparkar

¶106

totally without jurisdiction and illegal.

¶107

It is submitted by the learned counsel that the second revision application filed by the borrowers was barred by res-judicata in view of the fact that the impugned order passed by the Assistant Registrar granting certificate under section 101 of the said M.C.S. Act had attained finality and the revision application filed by the borrowers against the said impugned came to be dismissed right upto the Hon'ble Supreme Court.

¶108

It is submitted by the learned counsel that the order passed by the learned Divisional Joint Registrar condoning the delay application filed by the borrowers without insisting for deposit of 50% of the certificate amount on the ground that the borrowers had only challenged the auction sale and therefore, the question of compliance of section 154(2A) of the said M.C.S. Act did not arise is ex-facie perverse and contrary to the order dated 28^th January, 2010 passed by this Court in the petition filed by the borrowers, who had raised similar issue and the same was rejected. He submits that the said finding of the learned Divisional Joint Registrar is also ex-facie contrary to the principles laid down by this Court in Greater Bombay Co-operative Bank Limited, Mumbai vs. Dhillion P. Shah & Shah, (2004) 1 Mh.L.J. a nd also contrary to the order dated 28^th January, 2010 passed by this Court.

¶109

It is submitted by the learned counsel for the auction purchaser that the learned Divisional Joint Registrar had recorded one line observation that the respondents to the said revision application had played fraud and manipulated the auction proceedings without recording

¶110

20 judgment in wp 57214c and wp 65014o

¶111

Priya Soparkar

¶112

any reasons and without complying with the principles of natural justice and based on no evidence.

¶113

It is submitted by the learned counsel that the interpretation of Rule 107(11)(g) of the said M.C.S. Rules that the auction purchaser who ought to have deposited the amount on the said day without going into the actual facts and merits of the case and without appropriate reasonings for such finding is ex-facie perverse and contrary to the said provision and the same was inconsistent with the provisions of the said M.C.S. Act. The demand draft of Rs.1.00 crore could not have been kept in anticipation of the declaration of the highest bidder along with the amounts which was concluded only after 3:00 p.m. on the date of action by which time banking hours were already over.

¶114

Learned counsel for the auction purchasers placed reliance on the definition of the term “immediately” from Judicial Dictionary of Words and Phrases by Prem & Saharay's Second Edition which provides that it shall be construed such convenient time as is reasonably requisite for doing the things. Learned counsel also placed reliance on the judgment of the Supreme Court in case of Rosali V. vs. Taico Bank & Ors., (2009) 17 SCC 690 and more particularly paragraphs 22, 27, 30 to 32, 38 and 41.

¶115

Insofar as the allegations of fraud / material irregularity made by the learned counsel for the borrowers in the first revision application is concerned, it is submitted by the learned counsel for the auction purchasers that the said first revision application was dismissed on merits and had attained finality. The second revision application filed

¶116

21 judgment in wp 57214c and wp 65014o

¶117

Priya Soparkar

¶118

by the borrowers also came to be dismissed. There was a a specific objection raised in the revision application about the corrections made in the note of auction proceedings by P.N. Chitalia which allegation was subsequently rejected. The subsequent application raising similar allegation was thus ex-facie barred by constructive res-judicata . He invited my attention to the additional grounds raised in the first revision application. He also invited to the prayers in the Writ Petition No.1576 of 2009 which was filed by the auction purchasers in this Court earlier.

¶119

Learned counsel also placed reliance on the judgment delivered by this Court in Writ Petition No.6999 of 2013 on the issue of mandatory deposit of 50% of the bid amount under section 154(2A) of the said M.C.S. Act in which this Court had followed the principles laid down in the judgments reported in case of M/s.Puran Automobiles vs. State of Maharashtra & Ors. (2012) 5 All MR 145, The Greater Bombay Co-operative Bank Limited & Anr. vs. Dhillion P. Shah & Ors., 2004(1) All M.R. 25 in support of his submission that even if an auction proceedings are challenged in a revision application, compliance of mandatory requirement of 50% under section 154(2A) of the said M.C.S. Act is mandatory. He submits that though such an objection was subsequently raised by the auction purchasers as well as by the lenders, the same has not been dealt with by the learned Divisional Joint Registrar in the impugned order.

¶120

It is submitted by the learned counsel that the recovery certificate in this case was issued against the borrowers as far back as in the year 2001. The borrowers however, had failed to pay the said certificate amount or any part thereof. He submits that in this case

¶121

22 judgment in wp 57214c and wp 65014o

¶122

Priya Soparkar

¶123

admittedly nine bidders had participated in the auction proceeding. The highest bidder had quoted the bid of Rs.5,05,00,000/- which is much more than the certificate amount and also the upset price fixed by the authority. Mr.Jeetendra B. Shah, who had filed an affidavit in support of the borrowers had quoted and submitted his bid for much lower amount than the upset price. He did not challenge the auction proceedings at any stage. P.N. Chitalia also did not make any complaint or grievance in respect of the auction sale. Learned counsel also placed reliance on the judgment of the Supreme Court in case of Rosali V. vs. Taico Bank & Ors., AIR 2007 SC 998 and Ram Karan Gupta vs. J.S. Exim Limited & Ors., AIR 2013 SC 24 .

¶124

Insofar the bid submitted by P.N. Chitalia is concerned, the Special Recovery Officer confirmed the sale in favour of the said P.N. Chitalia on behalf of Anchor Daewoo or in favour of its nominee. The amount of Rs.1.00 crore and the subsequent amount was paid by the sister company of the Anchor Daewoo i.e. Barinda Overseas Private Limited. The said amount of Rs.1.00 crore was paid by the demand draft from the account of the said Barinda Overseas Private Limited. It is the case of the borrowers that the balance 85% of the bid amount was not paid by the auction purchasers on time.

¶125

Mr.Seksaria, learned counsel appearing for the petitioners also placed reliance on the proviso to Rule 107(14) of the M.C.S. Rules in support of the submission that even if there was any irregularity in conducting the auction sale, the borrowers or the respondent no.6 claiming through the borrowers did not point out any substantial injury by reason of such alleged irregularity, mistake or fraud.

¶126

23 judgment in wp 57214c and wp 65014o

¶127

Priya Soparkar

¶128

Mr.Kanade, learned counsel appearing for the lenders who are the petitioners in Writ Petition No.650 of 2014 adopted the submissions made by Mr.Seksaria, learned counsel appearing for the auction purchasers, who were the petitioners in Writ Petition No.572 of 2014 and made the additional submissions. It is submitted that though an issue of res-judicata as well as mandatory non-compliance of deposit of 50% of the bid amount under section 154 (2A) of the M.C.S. Act was specifically raised by his client also, the same is not considered in the impugned order passed by the learned Divisional Joint Registrar. He submits that the reserved price was fixed at Rs.91.00 lakh, whereas the auction purchasers in this case had submitted the highest bid in the sum of Rs.5,05,00,000/- after several rounds of bid. The dues of the borrowers were worked out by the bank. None of the auction purchasers had raised the objection about the procedure followed by the Special Recovery Officer. The name of the sister concern of the said P.N. Chitalia was corrected. On 13^th February, 2013, the amount of 15% of the bid was deposited with the bank. The auction proceedings came to be over only in the afternoon on 11^th February, 2013. The bank after adjusting the liabilities of the borrowers had deposited the balance amount in the account of the borrowers. The said account was however, found dormant. He submits that it is not the case of the borrowers that the properties in question was sold at under valuation price.

¶129

Mr.Jakhadi, learned counsel appearing for the borrowers would submit that the amounts sought to be deposited by the lenders bank was deposited in a dormant account of the borrowers in the year 1997. His clients have thus not received any such amount. He submits

¶130

24 judgment in wp 57214c and wp 65014o

¶131

Priya Soparkar

¶132

that the entire auction proceedings were fraudulent and in breach of the provisions of the said M.C.S. Act and Rule 107 of the said M.C.S. Rules. It is submitted that the hand writing of the said P.N. Chitalia on the document at page 295 of the paper book and the hand writing in the corrections are totally different. He led emphasis on the minutes of the auction proceedings and more particularly on page 295 signed by the Special Recovery Officer and the Sales Officer stating that the sum of Rs.70,75,000/- after adjusting the earnest money deposit of Rs.5.00 lakh had been received from the successful bidder against the acknowledgement / receipt issued by the National Co-operative Bank Limited. He submits that the said acknowledgement was issued by the Special Recovery officer on the date of auction sale itself though admittedly on the date of action, the auction purchasers had not deposited any such amount with the Special Recovery Officer and Sales Officer or with the lenders Bank.

¶133

Learned counsel submits that the said acknowledgement of receipt of the said amount issued by the Special Recovery Officer and the Sales Officers itself is fraudulent and reflected a false recording on the alleged receipt of receipt of 15% amount of the highest bid price. He submits that in view of the fraudulent correction in the said document and fraudulent receipt issued by the Special Recovery Officer and the Sales Officer, the borrowers were not precluded from filing a second revision application to disclose such fraud and fabrication committed by the respondents to the said revision application.

¶134

Learned counsel for the borrowers also placed reliance on the letter dated 24^th March, 2008 from the National Co-operative Bank

¶135

25 judgment in wp 57214c and wp 65014o

¶136

Priya Soparkar

¶137

Limited to the Commissioner of Co-operation and Registrar alleging that P.N. Chitalia had informed the bank that it was not possible for them to bring the pay order on the same day. M/s.Barindra Overseas Private Limited has submitted a pay order of Rs.1.00 crore in the morning of 13^th February, 2008. He submits that a perusal of this letter dated 24^th March, 2008 issued by the lenders bank itself acknowledges and confirms that the pay order of Rs.1.00 crore was received only in the morning of 13^th February, 2008. The receipt issued to the Special Recovery Officer acknowledging a sum of Rs.70,75,000/- on the date of auction itself was ex-facie fraudulent and contrary to the letter addressed by the lenders bank. The Special Recovery Officer had also taken signatures of all the bidders on the said minutes of the auction proceedings and gave a false receipt in favour of the auction purchasers.

¶138

Insofar as the maintainability of the second revision application is concerned, it is submitted that the Supreme Court did not dismiss the special leave petition filed by the borrowers on merits, but had dismissed the same on the ground that the said revision application filed by the borrowers itself was not maintainable in view of the fact that the auction purchasers were not impleaded as parties to the said revision application. The borrowers were thus entitled to file the second revision application by impleading the auction purchasers as parties and in any event were not precluded from filing the second revision application in view of the fraud, fabrication etc. on the part of the respondents to the revision application.

¶139

It is submitted that the learned Special Recovery Officer has committed breach of condition no.7 of sale and also Rule 107(11)(g) of

¶140

26 judgment in wp 57214c and wp 65014o

¶141

Priya Soparkar

¶142

the M.C.S. Rules. Learned counsel placed reliance on the judgments of this Court in case of Niranjan D. Woody vs. The South Indian Cooperative Bank Ltd. and Ors. (2006) 5 B.C.R. 587 and the judgment in case of Jagdish Radhakisan Kayasth vs. Ramesh N. Wagh and Ors. AIR 2001, Bombay 152 and would submit that the provisions of Rule 107 of the said M.C.S. Rules are mandatory and if the same are not complied with, the auction sale in violation of such provision would be nullity. Learned counsel strongly placed reliance on the affidavit filed by Jeetendra Bhimshi Shah, alleging various fabrication in the minutes of the auction proceedings. The said Jeetendra Bhimshi Shah was one of the participant in the said auction. Learned counsel for the borrowers however, did not dispute that the said Jeetendra Bhimshi Shah did not challenge the said auction sale at any point of time. He submits that the auction purchasers as well as the lenders did not deny the correctness of the contentions of the affidavit filed by said Jeetendra Bhimshi Shah.

¶143

Learned counsel for the borrowers placed reliance on the affidavit in rejoinder filed by the lenders and would submit that the case of the lenders is inconsistent on the issue of participation of P.N. Chitalia and on the issue as to why the name of P.N. Chitalia was changed. It is submitted by the learned counsel for the borrowers that since 15% amount was not deposited by the auction purchasers at the time of purchase of the suit property, the suit property was required to be reauctioned forthwith and could not have been confirmed by the Special Recovery Officer.

¶144

Learned counsel placed reliance on the interim order dated 6^th December, 2017 passed by this Court while admitting these writ

¶145

27 judgment in wp 57214c and wp 65014o

¶146

Priya Soparkar

¶147

petitions and would submit that various conditions were imposed also upon the petitioners by this Court while admitting these petitions. It is already made clear in the said order that the auction purchasers shall not claim any equity and that the auction sale is subject to the out come of these writ petitions.

¶148

It is submitted by the learned counsel that on 2^nd May, 2007, the Supreme Court had cancelled the earlier auction on the ground that 85% of consideration amount was not paid by the auction purchasers within a period of 15 days from the date of auction. The same principles will apply also to the second auction in respect of the same property.

¶149

Mr.Jakhadi, learned counsel for the borrowers placed reliance on the judgment of the Supreme Court in case of Meghmala & Ors. vs. G. Narasimha Reddy & Ors. (2010) 8 SCC 383 and more particularly on paragraphs 36, 41 to 43 and 51 in support of the submission that in view of the fraud alleged to have been committed by the auction purchasers, the lenders and the Special Recovery officer, the auction purchasers as well as the lenders cannot be allowed to raise a plea of res-judicata . Neither the lenders nor the auction purchasers can be allowed to take advantage of such fraud alleged to have been committed by them jointly with the Special Recovery Officer. It is submitted that in any event the second revision as well as the first revision application filed by the borrowers were not between the same parties. The auction purchasers were admittedly not the parties to the first revision application and the same was only against the lenders, whereas in the second revision, the auction purchasers were impleaded as one of the party. The first revision application filed by the borrowers

¶150

28 judgment in wp 57214c and wp 65014o

¶151

Priya Soparkar

¶152

was not finally decided. The applicability of the res-judicata therefore, did not arise.

¶153

It is submitted that in the rejoinder filed in these proceedings, the auction purchasers have come out with a new story. Learned counsel strongly placed reliance on the judgment of this Court delivered on 7^th March, 2018 in case of Manisha Bijal Shah vs. Shankar Laxman Sutar & Ors. in Writ Petition No.1965 of 2013 in support of his submission that since the auction purchasers, lenders as well as the Special Recovery Officer had committed fraud, the second revision application filed by the borrowers was thus maintainable.

¶154

Mr.Seksaria, learned counsel for the auction purchasers in rejoinder distinguished the judgment of this Court in case of Manisha Bijal Shah (supra) on the ground that the facts before this Court in the said judgment were totally different and in this case the borrowers have failed to demonstrate any allegations of forgery, fabrication or tampering with. He strongly placed reliance on the proviso to Rule 107(14)(i) of the said M.C.S. Rules and would submit that since the borrowers had failed to prove substantial injury alleged to have been suffered by the borrowers, the auction sale cannot be set aside. He distinguished the judgment of the Supreme Court in case of Meghmala & Ors. (supra) and invited my attention on paragraphs 41, 43, 45 and 51 and would submit that in this case the first revision application filed by the borrowers was decided on merits and thus the said judgment of the Supreme Court would not assist the case of the borrowers.

¶155

29 judgment in wp 57214c and wp 65014o

¶156

Priya Soparkar

¶157

It is submitted that the allegations made against the auction purchasers and the lenders were made not only in the second revision application but were also made in the first revision application which came to be rejected all through out. Even in the writ petition filed by the borrowers earlier challenging the auction sale, no assertion was made by the borrowers about the alleged substantial injustice to the borrowers arising out of the auction sale. He also invited my attention to paragraph 9 of the affidavit in reply filed by the borrowers and would submit that even in the affidavit in reply, no assertion is made by the respondents while submitting the auction sale deserves to be set aside as required in proviso 107(14) and more particularly that substantial injustice was suffered by the borrowers.

¶158

Mr.Kanade, learned counsel for the lenders in rejoinder submits that the alleged fraud may affect the auction sale otherwise the same cannot be considered. It is not the case of the borrowers that the lenders had received less amount of consideration from the auction purchasers or that the property was sold by the Special Recovery Officer at under valued price. The bid amount was much more than the upset price. None of the bidders, including Jeetendra Bhimshi Shah raised any objection. The said Jeetendra Bhimshi Shah as well as other bidders did not challenge the auction at any point of time. The bid amount of the said Jeetendra Bhimshi Shah was about Rs.2.92 crores, whereas the highest bid submitted by the auction purchasers wherein was Rs.5,05,00,000/-.

¶159

30 judgment in wp 57214c and wp 65014o

¶160

Priya Soparkar

¶161

Insofar as the receipt at page 295 of the writ petition strongly relied upon by the learned counsel for the borrowers in support of the submission that though the said amount was not received on the date of action but was reflected in the said receipt and thus was false and incorrect statement is concerned, it is submitted by Mr.Kanade, learned counsel for the lenders that the said receipt was printed on a format and would not indicate any fraud. It was not the case of the borrowers that a sum of Rs.1.00 crore was not received by the lenders subsequently. The respondent nos.2 and 3 were present at the time of auction. No substantial injury is suffered by any of the borrowers.

¶162

Insofar as the change of name in the minutes of the auction proceedings is concerned, it is submitted that the lenders had received the demand draft for 15% as well as 85% from M/s.Barindra Overseas Private Limited and not from P.N. Chitalia. In any event such alleged irregularity would not vitiate the auction. P.N. Chitalia or his company did not challenge the auction sale or did not make any complaint as to why his name was scored off and the name of M/s.Barindra Overseas Private Limited was recorded and as to why the suit property was sold in favour of that company.

¶163

Mr.Jakhadi, learned counsel for the auction purchasers submits that since the writ petition was not signed by both the auction purchasers i.e. in Writ Petition No.572 of 2014, the entire writ petition deserves to be dismissed on that ground alone.

¶164

31 judgment in wp 57214c and wp 65014o

¶165

Priya Soparkar

¶166

REASONS AND CONCLUSIONS

¶167

It is not in dispute that the respondent no.1 had applied for certain loan facilities from the respondent no.4 bank in respect of which transaction the respondent no.2 had stood as guarantors. The respondent no.2 claimed to be an owner of the property known as Parvati Niwas consisting of ground plus three floors standing on land admeasuring about 478.68 sq.mtrs. situated at Mahant Road, Vile Parle (E), Mumbai, 400 057. The respondent no.4 applied for recovery certificate under section 101 of the MCS Act against the borrower as well as the guarantors. The respondent nos. 1 to 3 filed a writ petition bearing no.5522 of 2000 in this court challenging the validity of the order passed under section 101 of the MCS Act. By an order dated 16^th October,2000, the said writ petition came to be dismissed. The respondent no.4 thereafter took possession of the entire property on 18^th August, 2001. The Deputy Registrar issued a recovery certificate on 4^th April, 2001 against the borrower as well as the guarantor.

¶168

The respondent nos. 1 to 3 filed a revision application bearing no.212 of 2001 before the Divisional Joint Registrar, Mumbai. Since there was no interim relief obtained by the respondent nos. 1 to 3 in the said revision application, the respondent no.4 took the property to auction on 1^st February,2002. The auction purchaser however withdrew from its bid and the said auction came to be cancelled. By an order dated 11^th July, 2002, the learned Divisional Joint Registrar dismissed the revision application filed by the respondent nos. 1 to 3 on the ground that the respondent nos. 1 to 3 had not deposited 50% of the amount of

¶169

32 judgment in wp 57214c and wp 65014o

¶170

Priya Soparkar

¶171

the recovery certificate. The learned Registrar also dismissed Revision Application No.434 of 2002 for cancellation of the first auction dated 1^st February,2002 under sub-rule 11(g) and (h) of the MCS Rules on 18^th July, 2002.

¶172

The respondent nos. 1 to 3 had challenged the said order dated 18^th July, 2002 before this court by filing writ petition no.105 of 2003. The learned Single Judge of this court dismissed the said writ petition by an order and judgment dated 13^th January,2003. The respondent nos. 1 to 3 thereafter challenged the said orders of this court before the Hon'ble Supreme Court of India by filing Special Leave Petitions which were converted into Civil Appeals bearing nos.6760 and 6761 of 2004. By an order dated 2^nd May,2007, the Hon'ble Supreme Court allowed those civil appeals. Supreme Court noticed that the purchaser had not deposited 85% of the purchase money within 15 days from the date of sale nor even thereafter. Supreme Court adverted to the judgment in case of Manilal Mohanlal Shah and others vs. Sardar Sayed Ahmed Sayed Mahmad and another, AIR 1954 SC 349 and in case of Balram vs. Ilam Singh and others, 1996(5) SCC 705 holding that the auction sale of the property of the respondent nos. 1 to 3 herein was in a nullity and there was no valid auction sale.

¶173

Supreme Court was pleased to set aside the order passed by this court and directed that the said property of the respondent nos. 1 to 3 be again re-auctioned after advertising in atleast two well known newspapers having wide circulation, mentioning therein the date, time and the place of the auction sale and after complying with the procedure under Rule 107 of the MCS Rules. Pursuant to the said order passed by

¶174

33 judgment in wp 57214c and wp 65014o

¶175

Priya Soparkar

¶176

the Supreme Court, the respondent no.4 bank issued a fresh advertisement and auction notice dated 5^th January,2008 for the sale of the property in question proposing to conduct auction sale on 11^th February,2008.

¶177

It is the case of the petitioner that the petitioner no.2 participated and made a bid on behalf of Barindra Overseas Private Limited for an amount of Rs.5,05,00,000/-. It is the case of the petitioner that the said second auction proceedings had taken the entire day and the auction was completed in late afternoon on 11^th February, 2008. Only around 3 p.m., the bank officer of the respondent no.4 made a demand to the petitioner to deposit of 15% by way of demand draft/pay order. It is the case of the petitioners that the petitioners though had an amount of 15% of the highest bid amount which came around Rs.1 crore ready and available with the petitioners, since the respondent no.4 made a demand of deposit by pay order or demand draft, the said amount could not have been expected to be kept by the petitioners at the time of such demand, after the working hours were over when such demand for Rs.1 crore was made by the respondent no.4.

¶178

It is the case of the petitioners that the petitioner no.1 company tried to get the demand draft ready as expeditiously as possible but the same could be ready only on 13^th February,2008 which according to the petitioners was a constructive compliance of the provisions of MCS Act and its rules. It is not in dispute that the respondent nos. 1 to 3 thereafter applied for setting aside the said auction and recovery proceedings under sub-rule 14(I) of rule 107 of the MCS Rules before

¶179

34 judgment in wp 57214c and wp 65014o

¶180

Priya Soparkar

¶181

the special recovery officer vide Application No.1 of 2008. The respondent nos. 1 to 3 remained absent before the special recovery officer on the date of the hearing. After hearing the oral arguments made by the respondent no.4 bank, the special recovery officer and the sales officer passed an order rejecting the said application filed by the respondent nos. 1 to 3 and holding that there was no irregularity, fraud or mistake in publishing or conducting the auction of the property in question which may cause substantial injury to the respondent nos. 1 to 3 herein.

¶182

By an order dated 16^th July, 2008, the said auction sale came to be confirmed by the learned Deputy Registrar. The special recovery officer accordingly issued a certificate of sale on 27^th May,2008. The respondent no.4 bank handed over possession of the said property along with the vacant flats to the petitioner no.1 company.

¶183

It is not in dispute that the respondent nos. 1 to 3 thereafter filed a revision application challenging the auction sale proceedings on various grounds including the ground that the auction was not conducted in compliance with Rule 107 of the MCS Rules. By an order dated 18^th September,2008, the learned Divisional Joint Registrar dismissed the said second revision application on the ground that the respondent nos. 1 to 3 had not deposited 15% of the amount of the recoverable dues of the respondent no.4. The respondent nos. 1 to 3 challenged the said order by filing a writ petition (1576 of 2009) in this court. By an order dated 28^th January, 2010, this court dismissed the said writ petition filed by the respondent nos. 1 to 3 by holding that since 15% of the dues under the recovery certificate was not deposited by the respondent nos. 1

¶184

35 judgment in wp 57214c and wp 65014o

¶185

Priya Soparkar

¶186

to 3, no interference with the impugned order passed by the learned Divisional Joint Registrar was warranted. Hon'ble Supreme Court of India by an order dated 24^th September,2010 dismissed the said writ petition. Supreme Court however observed that the auction purchaser was not even impleaded in the revision application filed by the respondent nos. 1 to 3. Necessary party must be impleaded in a case. Hence, revision application itself was not maintainable and consequently the writ petition and the special leave petition were also not maintainable and were accordingly dismissed.

¶187

It is not in dispute that the respondent nos. 1 to 3 thereafter filed a fresh Revision Application bearing No.395 of 2010 along with an application for condonation of delay before the learned Divisional Joint Registrar. By an order dated 17^th January,2012, the learned Divisional Joint Registrar allowed the application for condonation of delay filed by the respondent nos. 1 to 3 and admitted the said revision application and directed status quo regarding the impugned auction. Though the writ petition bearing no. 3573 of 2012 filed by the petitioners against the said order dated 17^th January, 2012 was admitted, no interim relief was granted by this court in the said writ petition filed by the petitioners. The learned Divisional Joint Registrar accordingly proceeded with the hearing of the revision application filed by the respondent nos. 1 to 3 and allowed the said revision application and was pleased to set aside the impugned auction dated 11^th February,2008. The said order dated 20^th May, 2013 is impugned by the petitioners in Writ Petition No.572 of 2014. The respondent no.4 bank has also filed a separate writ petition (650 of 2014) impugning the said order which also is being disposed of by a common order.

¶188

36 judgment in wp 57214c and wp 65014o

¶189

Priya Soparkar

¶190

Before going into the several other issues raised by both parties, in both these petitions, I shall first decide the issue raised by the petitioners in both the writ petitions whether the Divisional Joint Registrar could have entertained the revision application filed under section 154 of the MCS Act without the petitioners depositing 50% of the certificate amount under section 154(2A) of the MCS Act before the Divisional Joint Registrar or not.

¶191

A perusal of the order dated 18^th September,2008 in Revision Application No.93 of 2008 filed by the respondent nos. 1 to 3 herein passed by the Divisional Joint Registrar, Co-operative Societies, Mumbai clearly indicates that the said revision application was rejected for non-compliance under section 154(A) of the MCS Act. The respondent nos. 1 to 3 had impugned the said order by filing a Writ Petition No.1576 of 2009. By an order and judgment dated 28^th January, 2010, this court dismissed the said Writ Petition No.1576 of 2009 filed by the respondent nos. 1 to 3 after adverting to the judgment of this court in case of Greater Bombay Co-operative Bank Limited, Mumbai (supra) and held that since 50% of the dues under recovery certificate was not deposited, the impugned order passed by the Divisional Joint Registrar dismissing the revision application on that ground could not be interfered with. Supreme Court dismissed the Special Leave to Appeal (Civil) No.18073 of 2010. Supreme Court however held that since the auction purchasers were not impleaded as parties in the revision application and were necessary parties, the revision application filed by the respondent nos. 1 to 3 itself was not maintainable and consequently the Special Leave to Appeal was also not maintainable.

¶192

37 judgment in wp 57214c and wp 65014o

¶193

Priya Soparkar

¶194

A perusal of the revision application filed by the respondent nos. 1 to 3 indicates that the respondent nos. 1 to 3 impleaded the petitioners herein to the respondents to the fresh revision application in the said Revision Application No.395 of 2010 and challenged the auction proceedings also. It is not in dispute that the petitioners in both the writ petitions objected to the maintainability to the said revision application on various grounds including on the ground that the same could not be entertained in view of the respondent nos. 1 to 3 not having deposited 50% of the amount.

¶195

A perusal of the impugned order passed by the learned Divisional Joint Registrar indicates that though the learned authority has referred to the objections of the maintainability of the revision application filed by the respondent nos. 1 to 3 in the impugned order and also referred to the judgment of this court in case of Greater Bombay Co-operative Bank Limited, Mumbai (supra) referred to and relied upon by the petitioners, the Divisional Joint Registrar in the impugned order has not dealt with the said objections about the maintainability of the revision application itself for non-compliance under section 154(2A) of the MCS Act. However, while passing an order dated 9^th February, 2012 condoning the delay on the application of the respondent nos. 1 to 3, the learned Divisional Joint Registrar had erroneously held that the respondent nos. 1 to 3 had already challenged the auction sale and therefore the question of applicability of section 154(2A) of the MCS Act would not arise.

¶196

38 judgment in wp 57214c and wp 65014o

¶197

Priya Soparkar

¶198

This court in case of Greater Bombay Co-operative Bank Limited, Mumbai (supra) has after considering the similar arguments that although the question of maintainability of the revision was raised during the arguments before the revisional authority, same had been wrongly grossed over or discarded by the revisional authority. This court in the said judgment held that it would be propsoterous to accept the stand that a person "against whom", recovery certificate is issued, need not challenge the recovery certificate as such or for that matter, even if he has failed in the challenge to the recovery certificate, yet would be entitled to interdict the process of recovery of the amount specified under the recovery certificate, by ostensibly challenging only the derivative action by way of revisional application under section 154 of the MCS Act without complying the mandatory requirement under Sub-section (2A) thereof of 50% payment of the total amount of the recoverable dues.

¶199

It is held that a person "against whom" recovery certificate has been duly issued and, who has not challenged the same or has failed in his challenge thereto, cannot be in a better position than a person who intends to challenge the recovery certificate itself by way of revision application under section 154 and who is then obliged to pay 50% of amount of recoverable dues. This court held that having regard to the purpose and the legislative intent for introducing Sub-section (2A), the language of that provision would deserve liberal construction so as to encompass challenge to the derivative actions, by way of revision application under section 154 of the Act, founded on the recovery certificate which has either not been challenged or the challenge thereto

¶200

Priya Soparkar 39 judgment in wp 57214c and wp 65014o

¶201

has failed. The said sub-section 2A was introduced so as to ensure speedy recovery of the dues of the Societies specified in section 101 of the Act and this provision facilitate immediate recovery of atleast 50% amount of the total amount of recoverable dues of such Societies and not allow the entire amount being embroiled in a long drawn litigation. In my view, the said judgment of this court in case of Greater Bombay Cooperative Bank Limited, Mumbai (supra) squarely applies to the facts of this case. I am respectfully bound by the said judgment.

¶202

This court in the judgment delivered on 8^th August,2013 in case of Atul Vijaykant Moog vs. Niwas Baburao Sarnaik & Ors . in Writ Petition No.6999 of 2013 has after adverting to the judgment of this court in case of Greater Bombay Co-operative Bank Limited, Mumbai (supra) has set aside the order passed by the Divisional Joint Registrar holding that the provisions of section 154(2A) of the Act would not apply to the facts of the case as the respondent no.1 had challenged the auction procedure and the issue of sale certificate. In the judgment of this court in case of M/s.Puran Automobiles Vs. The State of Maharashtra & Ors. reported in 2012(5) All M.R. 145 it is held that the respondent no.1 though had not challenged the recovery certificate as stated by him, in fact he was challenging the same by challenging the auction proceedings.

¶203

It is held that the purpose and object of the provisions of sub section (2A) of Section 154 of the Act would be frustrated if a person against whom a recovery certificate is issued is permitted to file a revision against the auction proceedings without making the mandatory deposit, on a plea that he is not challenging the recovery certificate. This

¶204

40 judgment in wp 57214c and wp 65014o

¶205

Priya Soparkar

¶206

court accordingly in the said judgment was pleased to set aside the order passed by learned Divisional Joint Registrar and upheld the preliminary objections raised by the petitioners to the tenability of the revision for non-compliance of the provisions of section 145(2A) of the MCS Act. This court however accepted the request of the respondent no.1 therein to permit him to deposit the mandatory amount before the Revisional Authority within four weeks time and directed the revisional authority to dispose of the revision as early as possible upon the respondent no.1 depositing the said amount within a period of four weeks from the date of the said order.

¶207

In my view, the said judgment of this court in case of Atul Vijaykant Moog (supra) squarely applies to the facts of this case. The impugned order passed by the Divisional Joint Registrar without dealing with the specific objections of the maintainability of the revision application for want of compliance of the mandatory requirement of 50% of the recovery dues is ex-facie in teeth of the section 154(2A) of the MCS Act and the law laid down by this court in the said aforesaid judgment.

¶208

In my view, the learned Divisional Joint Registrar at the first instance could not have entertained even the application for condonation of delay before the respondent nos. 1 to 3 depositing 50% of the recoverable dues. The respondent nos. 1 to 3 were liable to deposit 50% of the recoverable dues even while seeking relief of quashing and setting aside the auction of the property in question which was filed for enforcement of the recovery certificate issued by the District Deputy Registrar. The provisions of section 154(2A) of the

¶209

41 judgment in wp 57214c and wp 65014o

¶210

Priya Soparkar

¶211

MCS Act were attracted to the said revision application inter alia praying for quashing and setting aside the auction proceedings.

¶212

In my view, the learned Divisional Joint Registrar could not have entertained the revision application filed by the respondent nos. 1 to 3 on merits and could not have set aside the auction sale without respondent nos. 1 to 3 first depositing 50% of the recoverable dues in compliance of section 154(2A) of the MCS Act. The impugned order thus deserves to be set aside on that ground alone. In view of this court proposing to set aside the impugned orders passed by the learned Divisional Joint Registrar on 20^th May,2013 and 17^th January,2012 on the ground of those revision applications not being maintainable, this court does not propose to go into the other issues raised by both the parties for consideration of this court and the same are kept open. I, therefore, pass the following order :-

¶213

(a) Writ Petition Nos.572 of 2014 and 650 of 2014 are allowed in terms of prayer clause (a).

¶214

(b) Revision Application No. 395 of 2010 filed by the respondent nos. 1 to 3 before the Divisional Joint Registrar, Co-operative Societies, Mumbai Division is restored to file along with application for condonation of delay filed by the respondent nos. 1 to 3 in Revision Application No.395 of 2010.

¶215

(c) The respondent nos. 1 to 3 are directed to comply with the mandatory requirement under section 154 (2A) of the Maharashtra Co-operative

¶216

42 judgment in wp 57214c and wp 65014o

¶217

Priya Soparkar

¶218

Societies Act, 1960 within six weeks from today. If the respondent nos. 1 to 3 do comply with the said mandatory requirement within the time prescribed, the Divisional Joint Registrar shall dispose of the application for condonation of delay and the revision application expeditiously on its own merits without being influenced by the observations made and the conclusions drawn in the impugned order dated 20^th May, 2013 and 17^th January,2012.

¶219

(d) If the respondent nos. 1 to 3 do not comply with the aforesaid direction, the application for condonation of delay as well as the revision application filed by the respondent nos. 1 to 3 to stand dismissed without further reference to court.

¶220

(e) The interim protection granted by this court by an order dated 6^th December, 2017 while admitting the aforesaid two petitions to continue till disposal of the application for condonation of delay and the Revision Application and for a period of two weeks from the date of communication of the said order.

¶221

(f) Rule is made absolute in the aforesaid terms.

¶222

(g) There shall be no order as to costs.

¶223

(R.D.DHANUKA, J.)

The National Cooperative Bank Ltd. v. M/S. Shilpa Shares and Securities and 6 Ors.

Case brief

What is this about?

What did the court decide?

The National Cooperative Bank Ltd. v. M/S. Shilpa Shares and Securities and 6 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ashok Ganpat Govale and Anr. Vs State of Maharashtra and Ors.

Mr. Hamid Aziz Shaikh Vs Mr. Sayed Faizulla

Rajendra @ Ekanath Bhimarao Chavan Vs the Collector of Solapur and Anr.

Yogendra N.Thakker Vs Vinay Balse and Anr.

Shri. Surajmal Budhmal Lodha (Huf) through Poa Shri. Kantilal S. Lodha and Ors. Vs the Surajmahal Co-Op. Society Ltd. and Ors.

Shri Vitthal Kisan Mate and Anr. Vs Shri Balu Pundalik Punde and Anr.