Considering the aforesaid averments and submissions, in my
judgment, this is not a matter which should be dismissed on the
ground of delay and laches. There is a difference between delay
per se and laches. Laches is not the mere physical running of
time. Laches arise in a situation where, on account of inordinate
delay on the part of the petitioner to invoke legal remedies,
corresponding rights and equities arise in the contesting parties and
it is totally inequitable to disturb the same. In the present case
although there is some delay in filing of the petitions, which the
petitioners have themselves acknowledged, it cannot be said that
the petition deserves to be dismissed on the ground of laches. The
respondent no. 1 bank has already sold number of properties of the
petitioners in the execution of the recovery certificates. It is not as if
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9738 OF 2012
Ms. Jyoti Sakharam Bhogle & Ors. .. Petitioners
vs.
The Saraswat Co-operative Bank
Ltd. & Ors.
Date of Pronouncing the Order: 28.10.2013
Citation;2014(3) ALLMR 344 Bom
1] Rule. With the consent of the learned counsel for the parties,
Rule is made returnable forthwith.
2] For reasons indicated in the course of this judgment, leave is
granted to amend the petition to incorporate challenge to order
dated 21.10.2008 passed in revision application no. 754 of 2006 by
the Deputy Joint Registrar – respondent no. 7.
3] Leave is granted to the petitioner to delete reference to the
challenge to order dated 16.03.2012 passed by the District
Rehabilitation Officer, Collector, Raigad (Exhibit 'O' to the petition).
Accordingly, civil application no. 2600 of 2013 is made absolute in
terms of prayer clause (a) only, by a separate order passed today.
4] This petition therefore is now directed against the following
orders passed by the revisional authority under the Maharashtra
Co-operative Societies Act, 1960 ( “the MCS Act”) i.e. Deputy Joint
Registrar of Co-operative Societies (respondent no. 7):
(a) Order dated 21.10.2008 in revision application no. 754 of
2006 dismissing the revision application on the ground that upon
conversion of the society into a Multi State Co-operative Society, the
revisional authority under Section 154 of the Act has no jurisdiction
to entertain the revision application;
(b) Order dated 21.10.2008 in revision application no. 174 of
2007 whereby the revisional authority declined to entertain the
revision petition on the ground referred to in (a) above;
(c) Order dated 28.05.2007 in revision application no. 158 of
2007, where the revision application was entertained but dismissed
as having become infructuous on account of the sale of the property
in pursuance of the impugned recovery certificate having been
completed.
5] In the light of orders ultimately proposed to be passed, there
is no necessity to advert to the detailed facts, particularly relating to
the merits or demerits of the orders impugned in this petition. The
facts and circumstances relevant for the purposes of disposal of the
present petition are however adverted to with requisite brevity:-
(A) Petitioners claim to be owners of property bearing Gat Nos.
506 and 507, Village Zirad, Taluka Alibaug, District Raigad
admeasuring 1 Hectare 18 Ares and 19 Ares respectively in terms
of registered Deed of Partition dated 28.09.2001. The dispute raised
in this petition pertains to the said properties.
(B) Respondent No. 4 i.e. M/s. Perfect Tools was a proprietary
concern of the late Sakharam Narayan Bhogle (I.e the father of the
petitioners).
(C) Respondent no. 5 i/e. M/s. Precision Tools is a partnership
firm having following partners:-
(a) Smt. Sunita Sakharam Bhogle (petitioners' mother) and
(b) Deepak Sakharam Bhogle (petitioners' brother)
(D) Respondent No. 4 proprietary concern, had availed of certain
term loan and cash credit facilities from Maratha Mandir Cooperative
Bank (now amalgamated with Respondent No. 1 i.e.
Saraswat Co-operative Bank w.e.f. 20.03.2006).
(E) Respondent No. 5 i/e. M/s. Precision Tools had also availed
certain term loan and cash credit facility from Maratha Mandir Cooperative
Bank Ltd. According to the petitioners, late Sakharam
Narayan Bhogle was neither a partner of M/s. Precision Tools nor a
guarantor to the loans taken by M/s. Precision Tools from the said
bank.
(F) On 28.08.2001 Maratha Mandir Co-op. Bank Ltd. Initiated
two independent recovery proceedings under section 101 of the
MCS Act against respondent no.4 and respondent no. 5.
(G) On 19.08.2002 Multi State Co-operative Societies Act, 2002
was brought into effect. The said 2002 Act repealed the Multi State
Co-operative Societies Act, 1984.
(H) On 18.07.2003 Mr. Sakharam Bhogle i.e. the sole proprietor
of respondent no. 4 expired.
(I) On 22.03.2004 recovery certificate was issued against legal
heirs of the late Mr. Sakharam Bhogle (i.e. petitioners herein and
Sunita Sakharam Bhogle and Deepak Bhogle) for a sum of
Rs.22,48,968/-.
(J) On 22.03.2004 recovery certificate was issued against
respondent no. 5 for a sum of Rs.89,00,000/-.
(K) On 20.03.2006 Maratha Mandir Bank got amalgamated with
the respondent no.1 bank (which is Multi State Cooperative Bank).
(L) On 28.11.2006 sale notice issued by respondent no.1 bank
for recovery of dues of the respondent nos. 4 and 5. The notice
included :
(i) various properties belonging to petitioners as well as
respondent no.4; and
(ii) immovable property exclusively belonging to petitioners under
registered deed of partition dated 28.09.2001,
(M) By letters dated 08.12.2006 and 11.12.2006 petitioners
made enquiries about sale of flat at Ghatkopar and the machinery
with the Special Recovery Officer (respondent no. 3).
(N) On 21.12.2006 petitioners filed objections before SRO under
Rule 107(19) of the MCS Rules against the sale notice dated
28.11.2006.
(O) On 21.12.2006 the petitioners filed revision application no.
754 of 2006 before the respondent no. 7 questioning recovery
certificate dated 22.03.2004 and sale notice dated 28.11.2006.
(P) In March 2007 the petitioners filed revision application no.
158 of 2007 questioning sale notice dated 28.11.2006 and the order
dated 22.03.2007 passed by the SRO rejecting the petitioners'
objections to the sale.
(Q) In April 2007 the petitioners filed revision application no. 174
of 2007 questioning sale notice dated 28.11.2006 and letter dated
24.03.2007 confirming the sale.
(R) By separate orders dated 21.10.2008 the revisional authority
i.e. respondent no. 7, dismissed revisional application no. 754 of
2006 and 174 of 2007 holding that he has no jurisdiction to
entertain the same on account of conversion of the society into Multi
State Co-operative Society with effect from 2002 and relying upon
the judgment of the Division Bench of this court in case of Adarsh
Ginning and Pressing Factory vs. State of Maharashtra & Ors.1
(S) By order dated 28.05.2007 the revisional authority i.e.
respondent no. 7 rejected the revision application no. 158 of 2007
by holding that the same has become infructuous, as the sale in
pursuance of recovery certificate and sale notice has been
completed.
(T) The Tahsildar of Alibaug, on basis of the aforesaid orders
directed mutation in the revenue records. An appeal against the
same was dismissed by the District Recovery Officer, Raigad,
Alibaug on 16.03.2012. (Exhibit 'O' to the petition).
6] The challenge to Exhibit 'O' having not been pressed /
dropped and leave having been granted to challenge order dated
21.10.2008 in revision application no. 754 of 2006, this petition is
now restricted to the challenge to orders referred to in paragraph (4)
1 2008(1) Mh.L.J. 300
above.
7] The challenge with regard to orders dated 21.10.2008 in
revision application nos. 754 of 2006 and 174 of 2007 is no longer
res integra. In fact the same is entirely covered by the decision of
this court in the case of Abhyudaya Co-operative Bank Ltd. vs.
State of Maharashtra & Ors.2
8] The learned Single Judge of this court in the case of
Abhyudaya (supra) has in terms held that power of revision under
Section 154 of the MCS Act is not affected by virtue of change in
character / field of operation of the society which in turn may have
triggered into operation of the provisions of the Multi State Cooperative
Societies Act, 2002. Therefore, the involuntary conversion
into Multi State Cooperative Society, does not take away the
jurisdiction of the revisional authority to proceed with a revisional
applications pending on the date of such conversion. Accordingly
orders passed by the revisional authorities dismissing revision
applications for alleged want of jurisdiction came to be quashed and
set aside and directions issued to the revisional authorities to
proceed with the revision applications in accordance with the
provisions of Section 154 of the MCS Act. The learned Single Judge
2 2009(4) Mh.L.J. 929
in arriving at this decision has taken into consideration the decision
of the Division Bench of this court in the case of Adarsh Ginning
(supra), which was relied upon by the revisional authority in the
present case to dismiss revision applications no. 754 of 2006 and
174 of 2007. Incidentally even the decision of a Division Bench of
this court in the case of Adarsh Ginning (supra) came to be set
aside by the Supreme Court in Civil appeal No. 2204 of 2009 and
2205 of 2009 decided on 06.04.20093 and the matter was
remanded for reconsideration.
9] Mr. Samant appearing for respondent no. 1 bank and Mr.
Talankar appearing for respondent no. 8 who is the purchaser of the
properties in pursuance of recovery certificate and notice for sale
however submitted that the petition is barred by gross delay and
laches. As such, even though the point may have been covered by
the decision of the learned Single Judge of this court in the case of
Abhyudaya (supra), the petition be not entertained. They further
submitted that the order dated 21.10.2008 in revision application no.
754 of 2006 had not even been challenged by the petitioner at the
time of filing of the original petition. Only upon the respondents
objecting to the maintainability of the petition for failure to challenge
the said order, at an inordinate belated stage, the petitioner has
3 (2009) 17 SCC 762
applied for leave to challenge the said order. There is no
explanation for the gross and inordinate delay in filing the petition in
the year 2012 as also failure to challenge the order dated
21.10.2008 in revision application no. 754 of 2006, in the first
instance.
10] The considerations for entertaining the petition filed in the
year 2012 wherein challenge was restricted to the orders dated
28.05.2007 in revision application no. 158 of 2007 and order dated
21.10.2008 in revision application no. 174 of 2007 and the reasons
for grant of leave to challenge the order dated 21.10.2008 in
revision application no. 754 of 2006 are virtually the same. As such
both the issues are considered together.
11] It is true as contended by the learned counsel for
respondent nos. 1 and 8 that there is some delay involved in the
filing of the present petition. The petitioners have however
submitted that they were pursuing matters with diligence before the
revenue authorities, which proceedings culminated with the issue of
order dated 16.03.2012 at Exhibit 'O' to the petition.
12] This petition has been filed in the month of July 2012. The
petitioners have submitted that in execution of the recovery
certificates impugned by them most of their properties have been
sold, even though the recovery certificate was itself issued in
breach of several legal provisions and properties which could not
have even legitimately formed the subject matter of the recovery
certificates have been sold. The petitioners submitted that in fact
writ petition no. 2865 of 2011 had been filed for the purposes of
impugning some of the orders passed by revisional authority,
however, on account of some technical defects their Advocate
withdrew the same on 24.04.2012 with liberty to file fresh petition.
According to the petitioners, the challenges raised in the petition
relate to jurisdictional issues, which in fact have been settled by this
court in the case of Abhyudaya (supra). The petitioners have
submitted that they were victims of inadequate legal advise as also
poverty. It is only after one of their close relatives has offered them
some financial assistance, they were able to take recourse to
proper legal remedies. In the circumstances, the petitioners have
urged that though there is some delay in filing the present
petition,the same may be condoned taking into consideration the
overall facts and circumstances of the matter including the
circumstance that the petitioners have not acted malafide and were
to the best of their abilities pursuing the matters before the revenue
authorities.
13] Considering the aforesaid averments and submissions, in my
judgment, this is not a matter which should be dismissed on the
ground of delay and laches. There is a difference between delay
per se and laches. Laches is not the mere physical running of
time. Laches arise in a situation where, on account of inordinate
delay on the part of the petitioner to invoke legal remedies,
corresponding rights and equities arise in the contesting parties and
it is totally inequitable to disturb the same. In the present case
although there is some delay in filing of the petitions, which the
petitioners have themselves acknowledged, it cannot be said that
the petition deserves to be dismissed on the ground of laches. The
respondent no. 1 bank has already sold number of properties of the
petitioners in the execution of the recovery certificates. It is not as if
the petitioners have been totally indolent in the matter. They have
been pursuing their remedies before the revenue authorities.
Petition was filed in the year 2011 which was withdrawn in April
2012 with liberty. Soon thereafter the present petition has been filed.
In the circumstances I am unable to accept the preliminary objection
raised by the respondent nos. 1 and 8 that this petition be not
entertained on the ground of delay and laches.
14] There is no dispute that the three revision applications
pertained to the two recovery certificates and sale notices in
pursuance of the same. It is quite clear that the omission to
challenge order dated 21.10.2008 in revision application no. 754 of
2006 was inadvertent and by no means intentional. The petitioner
had already filed the petition to challenge order dated 21.10.2008 in
revision application no. 174 of 2007 and order dated 28.05.2007 in
revision application no. 158 of 2007. There was no oblique reason
for the Petitioners to omit challenge to the order dated 21.10.2008
in Revision Application No.754 of 2006. The Petitioners did not gain
anything by such omissions. Rather than permit the petition to be
defeated upon a mere technicality arising out of inadvertence,
leave came to be granted permitting challenge to the order dated
21.10.2008 in revision application no. 754 of 2006. As stated earlier,
the challenge to the two orders dated 21.10.2008 in revision
application nos. 174 of 2007 and 754 of 2006 is no longer res
integra. In fact Mr. Joglekar appearing for the petitioners contended
that the order dated 21.10.2008 in revision application no. 754 of
2006 is a nullity, in view of decision of this court in the case of
Abhyudaya (supra).
15] Coming now to the merits of challenge, the two orders dated
21.10.2008 in revision application no. 754 of 2006 and 174 of 2007
cannot be sustained in view of the decision of this court in
Abhyudaya (supra). The respondent no. 7 has declined to exercise
jurisdiction vested in him, on which ground the two orders are liable
to be upset. Accordingly the orders dated 21.10.2008 in revision
application no. 754 of 2006 and 174 of 2007 are quashed and set
aside. The revision applications are restored to the file of the
respondent no. 7 who shall decide the same in accordance with law.
16] In so far as order dated 28.05.2007 in revision application no.
158 of 2007 is concerned, once again, I am of the opinion that the
revision application could not have been dismissed on the sole
ground that the properties in question having been sold in
pursuance of impugned recovery certificates, the revision
application has become infructuous. Besides from the perusal of the
revision application, it is seen that several contentious issues had
been raised by the petitioners. None of those issues have been
even adverted to in disposing of the revision application no. 158 of
2007. On this short ground, the order dated 28.05.2007 in revision
application no. 158 of 2007 is set aside. The revision application
no. 158 of 2007 is restored to the file of respondent no. 7 who shall
proceed to decide the same in accordance with law.
17] The learned counsel appearing for the respective parties
made attempts to make submissions upon the merits and demerits
of their respective cases in the context of recovery certificates,
notices of sale, confirmation of sale and so on. However, no
submissions / arguments on all these aspects were entertained,
particularly as the revisional authority had not at least in revision
application nos. 754 of 2006 and 174 of 2007 dealt with any issue
on merits. The said revision applications were disposed of only on
the grounds of alleged lack of jurisdiction. In so far as revision
application no. 158 of 2007 is concerned, although the revision
application was entertained on merits, the disposal was by no
means satisfactory. In the circumstances, it is made explicitly clear
that this court has expressed no opinion whatsoever upon the
merits and demerits of the case one way or the other.
18] Similar submissions were made by both parties on the issue
of applicability or otherwise of the provisions of sub section 2A of
Section 154 of the MCS Act. Once again such submissions have
not been entertained by this court, as this a matter which is to be
considered by the Deputy Joint Registrar C.S. Mumbai i.e.
respondent no. 7 at the stage of entertaining the revision
applications which are now restored for his consideration.
Accordingly it is made clear that this court has expressed no
opinion whatsoever upon the applicability or otherwise of the
provisions of sub section 2(A) of section 154 of the MCS Act and
the issue is left open to be determined by the Deputy Joint Registrar
i.e. respondent no. 7.
19] Although this petition is being allowed, in the facts and
circumstances of the case it is just, fit and proper that the petitioners
are directed to pay costs of Rs.10,000/- each to the respondent
no.1 and respondent no. 8. There has been some delay in filing of
the petition. There has been inadvertence in not challenging one of
the orders. Although such delay has been held, as not sufficient for
the purpose of not entertaining the petition, some inconvenience to
Respondent Nos.1 and 8 on this score, is not ruled out. Hence, the
order for costs.
20] Accordingly the orders dated 21.10.2008 in revision
application no. 754 of 2006 and 174 of 2007 and order dated
28.5.2007 in revision application no. 158 of 2007 are quashed and
set aside. The three revision applications are restored to the file of
the Deputy Joint Registrar, C.S. Mumbai i.e. respondent no. 7 who
shall proceed to decide the same in accordance with law.
21] The petitioners to pay costs of Rs.10,000/- each to
respondent no. 1 and respondent no. 8 within a period of four
weeks from today.
22] Parties to appear before the Deputy Joint Registrar C.S.
Mumbai, respondent no. 7 on 15.11.2013.
23] Rule is made absolute to the extent indicated.
24] Parties to act on a copy of this order duly authenticated by the
registry of this court.
(M. S. SONAK, J.)
At this stage, Mr. Bhupesh Samant learned counsel
appearing for respondent no. 1 and Mr. Ramesh Aiyar for
respondent no. 8, upon pronouncement of the judgment and order
pray that the operation be stayed for a period of eight weeks. In the
interests of justice, rather than granting any stay as prayed for, the
date of appearance before the respondent no. 7 is postponed to
02.01.2014 instead of 15.11.2013 as directed in paragraph 22 of the
judgment.
(M. S. SONAK, J.)
Print Page
judgment, this is not a matter which should be dismissed on the
ground of delay and laches. There is a difference between delay
per se and laches. Laches is not the mere physical running of
time. Laches arise in a situation where, on account of inordinate
delay on the part of the petitioner to invoke legal remedies,
corresponding rights and equities arise in the contesting parties and
it is totally inequitable to disturb the same. In the present case
although there is some delay in filing of the petitions, which the
petitioners have themselves acknowledged, it cannot be said that
the petition deserves to be dismissed on the ground of laches. The
respondent no. 1 bank has already sold number of properties of the
petitioners in the execution of the recovery certificates. It is not as if
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9738 OF 2012
Ms. Jyoti Sakharam Bhogle & Ors. .. Petitioners
vs.
The Saraswat Co-operative Bank
Ltd. & Ors.
Date of Pronouncing the Order: 28.10.2013
Citation;2014(3) ALLMR 344 Bom
1] Rule. With the consent of the learned counsel for the parties,
Rule is made returnable forthwith.
2] For reasons indicated in the course of this judgment, leave is
granted to amend the petition to incorporate challenge to order
dated 21.10.2008 passed in revision application no. 754 of 2006 by
the Deputy Joint Registrar – respondent no. 7.
3] Leave is granted to the petitioner to delete reference to the
challenge to order dated 16.03.2012 passed by the District
Rehabilitation Officer, Collector, Raigad (Exhibit 'O' to the petition).
Accordingly, civil application no. 2600 of 2013 is made absolute in
terms of prayer clause (a) only, by a separate order passed today.
4] This petition therefore is now directed against the following
orders passed by the revisional authority under the Maharashtra
Co-operative Societies Act, 1960 ( “the MCS Act”) i.e. Deputy Joint
Registrar of Co-operative Societies (respondent no. 7):
(a) Order dated 21.10.2008 in revision application no. 754 of
2006 dismissing the revision application on the ground that upon
conversion of the society into a Multi State Co-operative Society, the
revisional authority under Section 154 of the Act has no jurisdiction
to entertain the revision application;
(b) Order dated 21.10.2008 in revision application no. 174 of
2007 whereby the revisional authority declined to entertain the
revision petition on the ground referred to in (a) above;
(c) Order dated 28.05.2007 in revision application no. 158 of
2007, where the revision application was entertained but dismissed
as having become infructuous on account of the sale of the property
in pursuance of the impugned recovery certificate having been
completed.
5] In the light of orders ultimately proposed to be passed, there
is no necessity to advert to the detailed facts, particularly relating to
the merits or demerits of the orders impugned in this petition. The
facts and circumstances relevant for the purposes of disposal of the
present petition are however adverted to with requisite brevity:-
(A) Petitioners claim to be owners of property bearing Gat Nos.
506 and 507, Village Zirad, Taluka Alibaug, District Raigad
admeasuring 1 Hectare 18 Ares and 19 Ares respectively in terms
of registered Deed of Partition dated 28.09.2001. The dispute raised
in this petition pertains to the said properties.
(B) Respondent No. 4 i.e. M/s. Perfect Tools was a proprietary
concern of the late Sakharam Narayan Bhogle (I.e the father of the
petitioners).
(C) Respondent no. 5 i/e. M/s. Precision Tools is a partnership
firm having following partners:-
(a) Smt. Sunita Sakharam Bhogle (petitioners' mother) and
(b) Deepak Sakharam Bhogle (petitioners' brother)
(D) Respondent No. 4 proprietary concern, had availed of certain
term loan and cash credit facilities from Maratha Mandir Cooperative
Bank (now amalgamated with Respondent No. 1 i.e.
Saraswat Co-operative Bank w.e.f. 20.03.2006).
(E) Respondent No. 5 i/e. M/s. Precision Tools had also availed
certain term loan and cash credit facility from Maratha Mandir Cooperative
Bank Ltd. According to the petitioners, late Sakharam
Narayan Bhogle was neither a partner of M/s. Precision Tools nor a
guarantor to the loans taken by M/s. Precision Tools from the said
bank.
(F) On 28.08.2001 Maratha Mandir Co-op. Bank Ltd. Initiated
two independent recovery proceedings under section 101 of the
MCS Act against respondent no.4 and respondent no. 5.
(G) On 19.08.2002 Multi State Co-operative Societies Act, 2002
was brought into effect. The said 2002 Act repealed the Multi State
Co-operative Societies Act, 1984.
(H) On 18.07.2003 Mr. Sakharam Bhogle i.e. the sole proprietor
of respondent no. 4 expired.
(I) On 22.03.2004 recovery certificate was issued against legal
heirs of the late Mr. Sakharam Bhogle (i.e. petitioners herein and
Sunita Sakharam Bhogle and Deepak Bhogle) for a sum of
Rs.22,48,968/-.
(J) On 22.03.2004 recovery certificate was issued against
respondent no. 5 for a sum of Rs.89,00,000/-.
(K) On 20.03.2006 Maratha Mandir Bank got amalgamated with
the respondent no.1 bank (which is Multi State Cooperative Bank).
(L) On 28.11.2006 sale notice issued by respondent no.1 bank
for recovery of dues of the respondent nos. 4 and 5. The notice
included :
(i) various properties belonging to petitioners as well as
respondent no.4; and
(ii) immovable property exclusively belonging to petitioners under
registered deed of partition dated 28.09.2001,
(M) By letters dated 08.12.2006 and 11.12.2006 petitioners
made enquiries about sale of flat at Ghatkopar and the machinery
with the Special Recovery Officer (respondent no. 3).
(N) On 21.12.2006 petitioners filed objections before SRO under
Rule 107(19) of the MCS Rules against the sale notice dated
28.11.2006.
(O) On 21.12.2006 the petitioners filed revision application no.
754 of 2006 before the respondent no. 7 questioning recovery
certificate dated 22.03.2004 and sale notice dated 28.11.2006.
(P) In March 2007 the petitioners filed revision application no.
158 of 2007 questioning sale notice dated 28.11.2006 and the order
dated 22.03.2007 passed by the SRO rejecting the petitioners'
objections to the sale.
(Q) In April 2007 the petitioners filed revision application no. 174
of 2007 questioning sale notice dated 28.11.2006 and letter dated
24.03.2007 confirming the sale.
(R) By separate orders dated 21.10.2008 the revisional authority
i.e. respondent no. 7, dismissed revisional application no. 754 of
2006 and 174 of 2007 holding that he has no jurisdiction to
entertain the same on account of conversion of the society into Multi
State Co-operative Society with effect from 2002 and relying upon
the judgment of the Division Bench of this court in case of Adarsh
Ginning and Pressing Factory vs. State of Maharashtra & Ors.1
(S) By order dated 28.05.2007 the revisional authority i.e.
respondent no. 7 rejected the revision application no. 158 of 2007
by holding that the same has become infructuous, as the sale in
pursuance of recovery certificate and sale notice has been
completed.
(T) The Tahsildar of Alibaug, on basis of the aforesaid orders
directed mutation in the revenue records. An appeal against the
same was dismissed by the District Recovery Officer, Raigad,
Alibaug on 16.03.2012. (Exhibit 'O' to the petition).
6] The challenge to Exhibit 'O' having not been pressed /
dropped and leave having been granted to challenge order dated
21.10.2008 in revision application no. 754 of 2006, this petition is
now restricted to the challenge to orders referred to in paragraph (4)
1 2008(1) Mh.L.J. 300
above.
7] The challenge with regard to orders dated 21.10.2008 in
revision application nos. 754 of 2006 and 174 of 2007 is no longer
res integra. In fact the same is entirely covered by the decision of
this court in the case of Abhyudaya Co-operative Bank Ltd. vs.
State of Maharashtra & Ors.2
8] The learned Single Judge of this court in the case of
Abhyudaya (supra) has in terms held that power of revision under
Section 154 of the MCS Act is not affected by virtue of change in
character / field of operation of the society which in turn may have
triggered into operation of the provisions of the Multi State Cooperative
Societies Act, 2002. Therefore, the involuntary conversion
into Multi State Cooperative Society, does not take away the
jurisdiction of the revisional authority to proceed with a revisional
applications pending on the date of such conversion. Accordingly
orders passed by the revisional authorities dismissing revision
applications for alleged want of jurisdiction came to be quashed and
set aside and directions issued to the revisional authorities to
proceed with the revision applications in accordance with the
provisions of Section 154 of the MCS Act. The learned Single Judge
2 2009(4) Mh.L.J. 929
in arriving at this decision has taken into consideration the decision
of the Division Bench of this court in the case of Adarsh Ginning
(supra), which was relied upon by the revisional authority in the
present case to dismiss revision applications no. 754 of 2006 and
174 of 2007. Incidentally even the decision of a Division Bench of
this court in the case of Adarsh Ginning (supra) came to be set
aside by the Supreme Court in Civil appeal No. 2204 of 2009 and
2205 of 2009 decided on 06.04.20093 and the matter was
remanded for reconsideration.
9] Mr. Samant appearing for respondent no. 1 bank and Mr.
Talankar appearing for respondent no. 8 who is the purchaser of the
properties in pursuance of recovery certificate and notice for sale
however submitted that the petition is barred by gross delay and
laches. As such, even though the point may have been covered by
the decision of the learned Single Judge of this court in the case of
Abhyudaya (supra), the petition be not entertained. They further
submitted that the order dated 21.10.2008 in revision application no.
754 of 2006 had not even been challenged by the petitioner at the
time of filing of the original petition. Only upon the respondents
objecting to the maintainability of the petition for failure to challenge
the said order, at an inordinate belated stage, the petitioner has
3 (2009) 17 SCC 762
applied for leave to challenge the said order. There is no
explanation for the gross and inordinate delay in filing the petition in
the year 2012 as also failure to challenge the order dated
21.10.2008 in revision application no. 754 of 2006, in the first
instance.
10] The considerations for entertaining the petition filed in the
year 2012 wherein challenge was restricted to the orders dated
28.05.2007 in revision application no. 158 of 2007 and order dated
21.10.2008 in revision application no. 174 of 2007 and the reasons
for grant of leave to challenge the order dated 21.10.2008 in
revision application no. 754 of 2006 are virtually the same. As such
both the issues are considered together.
11] It is true as contended by the learned counsel for
respondent nos. 1 and 8 that there is some delay involved in the
filing of the present petition. The petitioners have however
submitted that they were pursuing matters with diligence before the
revenue authorities, which proceedings culminated with the issue of
order dated 16.03.2012 at Exhibit 'O' to the petition.
12] This petition has been filed in the month of July 2012. The
petitioners have submitted that in execution of the recovery
certificates impugned by them most of their properties have been
sold, even though the recovery certificate was itself issued in
breach of several legal provisions and properties which could not
have even legitimately formed the subject matter of the recovery
certificates have been sold. The petitioners submitted that in fact
writ petition no. 2865 of 2011 had been filed for the purposes of
impugning some of the orders passed by revisional authority,
however, on account of some technical defects their Advocate
withdrew the same on 24.04.2012 with liberty to file fresh petition.
According to the petitioners, the challenges raised in the petition
relate to jurisdictional issues, which in fact have been settled by this
court in the case of Abhyudaya (supra). The petitioners have
submitted that they were victims of inadequate legal advise as also
poverty. It is only after one of their close relatives has offered them
some financial assistance, they were able to take recourse to
proper legal remedies. In the circumstances, the petitioners have
urged that though there is some delay in filing the present
petition,the same may be condoned taking into consideration the
overall facts and circumstances of the matter including the
circumstance that the petitioners have not acted malafide and were
to the best of their abilities pursuing the matters before the revenue
authorities.
13] Considering the aforesaid averments and submissions, in my
judgment, this is not a matter which should be dismissed on the
ground of delay and laches. There is a difference between delay
per se and laches. Laches is not the mere physical running of
time. Laches arise in a situation where, on account of inordinate
delay on the part of the petitioner to invoke legal remedies,
corresponding rights and equities arise in the contesting parties and
it is totally inequitable to disturb the same. In the present case
although there is some delay in filing of the petitions, which the
petitioners have themselves acknowledged, it cannot be said that
the petition deserves to be dismissed on the ground of laches. The
respondent no. 1 bank has already sold number of properties of the
petitioners in the execution of the recovery certificates. It is not as if
the petitioners have been totally indolent in the matter. They have
been pursuing their remedies before the revenue authorities.
Petition was filed in the year 2011 which was withdrawn in April
2012 with liberty. Soon thereafter the present petition has been filed.
In the circumstances I am unable to accept the preliminary objection
raised by the respondent nos. 1 and 8 that this petition be not
entertained on the ground of delay and laches.
14] There is no dispute that the three revision applications
pertained to the two recovery certificates and sale notices in
pursuance of the same. It is quite clear that the omission to
challenge order dated 21.10.2008 in revision application no. 754 of
2006 was inadvertent and by no means intentional. The petitioner
had already filed the petition to challenge order dated 21.10.2008 in
revision application no. 174 of 2007 and order dated 28.05.2007 in
revision application no. 158 of 2007. There was no oblique reason
for the Petitioners to omit challenge to the order dated 21.10.2008
in Revision Application No.754 of 2006. The Petitioners did not gain
anything by such omissions. Rather than permit the petition to be
defeated upon a mere technicality arising out of inadvertence,
leave came to be granted permitting challenge to the order dated
21.10.2008 in revision application no. 754 of 2006. As stated earlier,
the challenge to the two orders dated 21.10.2008 in revision
application nos. 174 of 2007 and 754 of 2006 is no longer res
integra. In fact Mr. Joglekar appearing for the petitioners contended
that the order dated 21.10.2008 in revision application no. 754 of
2006 is a nullity, in view of decision of this court in the case of
Abhyudaya (supra).
15] Coming now to the merits of challenge, the two orders dated
21.10.2008 in revision application no. 754 of 2006 and 174 of 2007
cannot be sustained in view of the decision of this court in
Abhyudaya (supra). The respondent no. 7 has declined to exercise
jurisdiction vested in him, on which ground the two orders are liable
to be upset. Accordingly the orders dated 21.10.2008 in revision
application no. 754 of 2006 and 174 of 2007 are quashed and set
aside. The revision applications are restored to the file of the
respondent no. 7 who shall decide the same in accordance with law.
16] In so far as order dated 28.05.2007 in revision application no.
158 of 2007 is concerned, once again, I am of the opinion that the
revision application could not have been dismissed on the sole
ground that the properties in question having been sold in
pursuance of impugned recovery certificates, the revision
application has become infructuous. Besides from the perusal of the
revision application, it is seen that several contentious issues had
been raised by the petitioners. None of those issues have been
even adverted to in disposing of the revision application no. 158 of
2007. On this short ground, the order dated 28.05.2007 in revision
application no. 158 of 2007 is set aside. The revision application
no. 158 of 2007 is restored to the file of respondent no. 7 who shall
proceed to decide the same in accordance with law.
17] The learned counsel appearing for the respective parties
made attempts to make submissions upon the merits and demerits
of their respective cases in the context of recovery certificates,
notices of sale, confirmation of sale and so on. However, no
submissions / arguments on all these aspects were entertained,
particularly as the revisional authority had not at least in revision
application nos. 754 of 2006 and 174 of 2007 dealt with any issue
on merits. The said revision applications were disposed of only on
the grounds of alleged lack of jurisdiction. In so far as revision
application no. 158 of 2007 is concerned, although the revision
application was entertained on merits, the disposal was by no
means satisfactory. In the circumstances, it is made explicitly clear
that this court has expressed no opinion whatsoever upon the
merits and demerits of the case one way or the other.
18] Similar submissions were made by both parties on the issue
of applicability or otherwise of the provisions of sub section 2A of
Section 154 of the MCS Act. Once again such submissions have
not been entertained by this court, as this a matter which is to be
considered by the Deputy Joint Registrar C.S. Mumbai i.e.
respondent no. 7 at the stage of entertaining the revision
applications which are now restored for his consideration.
Accordingly it is made clear that this court has expressed no
opinion whatsoever upon the applicability or otherwise of the
provisions of sub section 2(A) of section 154 of the MCS Act and
the issue is left open to be determined by the Deputy Joint Registrar
i.e. respondent no. 7.
19] Although this petition is being allowed, in the facts and
circumstances of the case it is just, fit and proper that the petitioners
are directed to pay costs of Rs.10,000/- each to the respondent
no.1 and respondent no. 8. There has been some delay in filing of
the petition. There has been inadvertence in not challenging one of
the orders. Although such delay has been held, as not sufficient for
the purpose of not entertaining the petition, some inconvenience to
Respondent Nos.1 and 8 on this score, is not ruled out. Hence, the
order for costs.
20] Accordingly the orders dated 21.10.2008 in revision
application no. 754 of 2006 and 174 of 2007 and order dated
28.5.2007 in revision application no. 158 of 2007 are quashed and
set aside. The three revision applications are restored to the file of
the Deputy Joint Registrar, C.S. Mumbai i.e. respondent no. 7 who
shall proceed to decide the same in accordance with law.
21] The petitioners to pay costs of Rs.10,000/- each to
respondent no. 1 and respondent no. 8 within a period of four
weeks from today.
22] Parties to appear before the Deputy Joint Registrar C.S.
Mumbai, respondent no. 7 on 15.11.2013.
23] Rule is made absolute to the extent indicated.
24] Parties to act on a copy of this order duly authenticated by the
registry of this court.
(M. S. SONAK, J.)
At this stage, Mr. Bhupesh Samant learned counsel
appearing for respondent no. 1 and Mr. Ramesh Aiyar for
respondent no. 8, upon pronouncement of the judgment and order
pray that the operation be stayed for a period of eight weeks. In the
interests of justice, rather than granting any stay as prayed for, the
date of appearance before the respondent no. 7 is postponed to
02.01.2014 instead of 15.11.2013 as directed in paragraph 22 of the
judgment.
(M. S. SONAK, J.)
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