ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.2015 OF PETITION NO.2015 OF PETITION NO.2015 OF 2009 2009 2009 WITH WITH WITH WRIT WRIT WRIT PETITION NO. 2048 OF 2009 PETITION NO. 2048 OF 2009 PETITION NO. 2048 OF 2009 WITH WITH WITH WRIT WRIT WRIT PETITION NO. 2051 OF 2009 PETITION NO. 2051 OF 2009 PETITION NO. 2051 OF 2009 WITH WITH WITH WRIT WRIT WRIT PETITION NO.2052 OF 2009 PETITION NO.2052 OF 2009 PETITION NO.2052 OF 2009 WITH WITH WITH WRIT WRIT WRIT PETITION NO.2055 OF 2009 PETITION NO.2055 OF 2009 PETITION NO.2055 OF 2009 WITH WITH WITH WRIT WRIT WRIT PETITION NO.2056 OF 2009 PETITION NO.2056 OF 2009 PETITION NO.2056 OF 2009 WITH WITH WITH WRIT WRIT WRIT PETITION NO.2057 OF 2009 PETITION NO.2057 OF 2009 PETITION NO.2057 OF 2009 AND AND AND WITH WITH WITH WRIT WRIT WRIT PETITION NO.2058 OF 2009 PETITION NO.2058 OF 2009 PETITION NO.2058 OF 2009 Prakash Offset Printers ...Petitioner. Vs. Ichalkaranji Urban Co-operative Bank Limited and Ors. ...Respondents. Mr.P.K.Dhakephalkar, Sr. Advocate with Mr. S. S. Patwardhan for the Petitioner. Mr.G.S.Godbole with Mr.Prajakt M. Arjunwadkar for Respondent Nos. 1 and 2. Mr.P.P.Kakade, AGP for the State. ( 2 ) CORAM CORAM CORAM : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. DATED DATED DATED : 25th March, 2009 : 25th March, 2009 : 25th March, 2009 P.C.:- P.C.:- P.C.:- . The Petitioners have challenged the impugned common order dated 31st January, 2009 passed by the Divisional Joint Registrar, Co-operative Societies, Kolhapur Division, Kolhapur whereby the Revisions filed by the Petitioners against notice under Rule 107 (5) (a) of the Maharashtra Co-operative Societies Rules, 1961 (for short, "MCS Rules, 1961") were rejected. 2. Admittedly, basic recovery certificates under Section 101 passed under the Maharashtra Cooperative Societies Act, 1960 (for short, "the MCS Act, 1960") have attained the finality. Therefore, Bank-Respondent No.1, initiated/ issued these notices against the respective Petitioners for recovery of the due amounts. It was for the seizer/ attachment of the movable properties as contemplated under the Rules. Admittedly, it was never intended to attach immovable properties of the Petitioners. 3. The Petitioners have filed separate Revisions against these separate notices and all actions arising ( 3 ) out of the same under Section 154 of the MCS Act, 1960. Respondent No.4-Divisional Joint Registrar, Co-operative Societies, in spite of objections about the process and the procedure they adopted, by the impugned order, without giving any reasons about those objections/ grounds, rejected all the Revisions solely on the ground that the basic recovery proceedings have attained finality and, therefore, the second revision cannot be entertained at all. 4. The objections/ grounds as raised by the individual petitioners shows that Respondent No.2 has exceeded its limit and factually took possession of the whole premises by putting seal and that resulted into physical dispossession from the premises itself. 5. The submission of Respondent No.1- Bank, that the Petitioners themselves created the situation which compel them to take such action is recorded in following paragraphs. . "I say that in exercise of the powers conferred by Rule 107 of the Maharashtra Co-operative Societies Rules, 1961, the Respondent No.2, S.R.O. has initiated proceedings for recovery. I say that since the Respondent No.1 Bank has a right under the aforesaid Hypothecation Deeds to cease the movables and machinery including the ( 4 ) stock in trade and the finished and unfinished goods and raw material of the Petitioner, in exercise of the said power conferred by the Contract between the Petitioner and the Respondent No.1 Bank, the Respondent No.1 Bank has ceased the said movables, machinery, raw material, finished and unfinished goods and stock-in-trade. I say that this ceasure in exercise of the contractual powers was effected on 23.1.2009 and a Panchanama to that effect was prepared,. Hereto annexed and marked as EXHIBIT "E" is a copy of the said Panchanama. I say that in fact this ceasure was made by the Respondent No.1 Bank in exercise of the powers conferred by the Hypothecation Deeds. I say that in fact, the S.R.O. had also followed the procedure prescribed by law by issuing notice under Rule 107 (5)(a) of the M.C.S. Rules, 1961. The said notice is at Exhibit "F" to the Writ Petition which clearly indicates the attachment of movables would be levied on 23.01.2009. I say that in accordance with the said notice, the aforesaid panchanama was prepared. However, since the Petitioner and his employees, family members and supporters created huge physical objection in the said process of attachment under Rule 107 (5)(a) of the MCS Rules, 1961, and since the law and order problem was created, even the Police Officers came to the premises of the Petitioner, and hence, without making an inventory of the attached movables on account of the obstruction created by the Petitioner, the premises had to be sealed with a view to secure the attached goods and machinery. i say that this fact was recorded by the S.R.O. on the next day by writing a letter dated 24.01.2009 addressed to the Petitioner which is annexed hereto and marked as EXHIBIT "F". 6. The above averments were in response to the Petitioners averments. It appears from this affidavit itself that admittedly in view of circumstances reflected in the above affidavit/ paragraphs pursuance ( 5 ) to notice under Rule 107 (5) (a) of the MCS Rules, 1961 without making any inventory of seizer they attached movable properties in such fashion on account of alleged obstruction created by the Petitioners. The Respondent has sealed the premises to secure the goods and machinery. The panchanama dated 23rd January, 2009 also confirmed/ support the objection raised by the Petitioners as recorded above. 7. It is very clear from the impugned order that the learned Divisional Joint Registrar, Respondent No.4 though grounds were raised, not considered all these facets and passed the unreasoned impugned order. The aspects; whether under the guise of seizure/ distrain order as contemplated under Rule 107 (5) (a) of the MCS Rules, 1961, the Respondent can seal the immovable properties in such a fashion; whether the printing machineries actually attached to the earth or embedded to the earth are "movable properties" or "immovable properties"; if these properties are movable properties then such attachment/ seizure can be maintained and if not, then such movable properties, just cannot be attached / seized in such a fashion. The aspects; whether these movable properties are part of hypothecation deed or bank documents and ( 6 ) therefore, whether it is attached or embedded to the earth or no is immaterial or not also need to be gone into. 8. Whatever may be the circumstances even though, there is no dispute that the basic recovery certificates, have attained the finality, still the authorities need to see that the Respondent whether can seal the premises and seized the immovables without proper inventory as done in the present case. 9. It is clear from the said provisions itself that there is no such power to attach or seal immovable properties in such a fashion even under the circumstances. There is no serious challenge to the basic notices but challenge is to the procedure/ action which they have adopted in the present case. 10. Thus:- a) There will be no fresh notices. The parties to proceed further on the basis of existing notices. The concerned Respondents to follow due procedure of law. The concerned Respondents to ( 7 ) proceed further as consented, on 2nd April, 2009 or such other agreed date. b) The Petitioners to deposit an amount of Rs.10,00,000/- (Rupees ten lacs only) on or before 31st March, 2009 with Respondent No.1- Bank. c) The Petitioners and or such other persons shall co-operate in all respect and not physically obstruct the Respondents or its officers. d) The parties shall not create third party right and interest or transfer movable properties including stock-in-trade lying in the premises as of today. The status-quo, shall continue with regard to the movable properties lying in the premises till 2nd April, 2009 but they can use the machineries and equipments. e) The impugned order dated 31st January, 2009, accordingly quashed and set aside. ( 8 ) f) In view of above, the impugned action of sealing of premises and the panchanama are quashed and set aside being contrary to the law/ rules. The concerned Respondents to follow due procedure in taking further actions, pursuance to the impugned notices and pass order accordingly. g) The Revisional authority shall give full opportunity to the parties including to file fresh objections and documents and pass order as early as possible or within reasonable time. 11. The parties are at liberty to settle the matter. The parties by consent can consider to reduce the rate of interest and settle the account accordingly, including issue of reasonable instalments. The survival of the industry is very important from the point of view of employees. The bank, in view of present scenario can consider to reduce rate of interest or such other concession. 12. Resultantly, all the Writ Petitions are disposed ( 9 ) of accordingly. No costs. (ANOOP (ANOOP (ANOOP V.MOHTA, J.) V.MOHTA, J.) V.MOHTA, J.)