jpc wp1502-11.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 1502 OF 2011 Gangadhar Shivram Potdar and others ... Petitioners Versus Mahadeo Shivram Potdar and others ... Respondents Mr. P. M. Arjunwadkar for the petitioners Mr. Amit B. Borkar for Respondent Nos. 3 and 4 CORAM: R. M. SAVANT, J. DATED : 2nd December, 2011 P.C. : 1. There is concurrent finding recorded by the Courts below as regards entitlement of the petitioners/plaintiffs to the temporary injunction, both the Courts below have held against the plaintiffs. 2. The petitioners herein are the original plaintiffs in Regular Civil Suit No. 56 of 2008. The said suit has been filed for partition of ancestral properties and for challenging the public notice for auction issued by the Respondent no.3 Bank. The record discloses that the Defendant Nos.1 and 2, who are the brothers of the Petitioner No. 1/Original plaintiff, had taken loan from the Respondent No.3 Bank and jpc wp1502-11.sxw 2 on default being committed by them in its payment, proceedings under Section 101 of the Maharashtra Cooperative Societies Act (for brevities sake, referred to as "the MCS Act") were initiated against them, by the Respondent no.3 Bank resulting in the issuance of a recovery certificate dated 17th of November, 2006. The said recovery certificate was put in execution, pursuant to which, an attachment order came to be issued in respect of the house property bearing Grampanchat Milkat Nos. 500, 601, 605 and 619. The Plaintiffs, therefore, filed an application for temporary injunction restraining the Respondent no.3 Bank from auctioning the said house properties. The said application for temporary injunction came to be rejected by the trial Court i.e the learned Joint Civil Judge Senior Division by order dated 14th October, 2008. The trial Court alluded to the fact that Defendant Nos. 1 and 2 had taken loan and it was in pursuance of the recovery certificate issued under Section 101 of the the MCS Act that the said auction was to be held for recovery of the outstanding amount from the said defendants. The learned trial Court also observed that there was a consent letter executed by the plaintiff no.1 which, according to the trial Court, supported the contention of the Defendant No.3 Bank and the Recovery Officer. jpc wp1502-11.sxw 3 3. Being aggrieved by the said order dated 14th October, 2008, the petitioners i.e. the original plaintiffs filed an Appeal being Misc. Civil Appeal No. 196 of 2008. The said appeal has been dismissed by the First Appellate Court by an order dated 27th September, 2010. The First Appellate Court has reiterated the finding of the trial Court as regards the loan taken by the Defendant Nos. 1 and 2 from the Defendant no.3 Bank. However, the First Appellate Court has recorded a finding that Defendant Nos.1 and 2 have mortgaged the said house property to the Bank and to which, the Plaintiff no.1 has consented. The learned counsel appearing for the Petitioner, Shri Arjunwadkar submitted that the said finding is perverse, inasmuch as, the trial Court in its order has observed that no mortgage deed was produced by the Defendant Nos. 3 and 4. In reply to the said submission of Shri Arjunwadkar, the learned counsel for the Respondent, Shri Borkar fairly states that the said finding recorded by the First Appellate Court is erroneous as no mortgage was created and the Bank has attached the house property in furtherance of the execution of the said recovery certificate. 4. In so far as the recovery made under Section 101 of the MCS Act is concerned, the procedure for executing the recovery certificate if any granted finds place in Rule 107 of the Maharashtra Cooperative jpc wp1502-11.sxw 4 Societies Rule. The said Rule can be said to be a self contained code as it provides for the objections to be made and the manner in which the objections have to be dealt with. If the party is aggrieved by the ruling on the objection, then the remedy for the same is also stipulated. It is also required to be noted that under Section 163(3) of the MCS Act, there is a bar to the Civil Court exercising jurisdiction in respect of the challenge to the order, decision or award passed in accordance with the Act. Though the issue as to whether the suit is maintainable in view of the bar of Section 163 can be considered at the time of the hearing of the suit, however, the same can also be a relevant consideration at the time of considering an application for interim injunction. Though both the Courts below have not approached the matter from the said angle, this Court, sitting in the writ jurisdiction cannot ignore the said statutory provision. 5. As mentioned herein above, Rule 107 of the MCS Rule provides the mechanism for execution of the award of the Cooperative Court. In the instant case, since the recovery certificate has been issued under Section 101 of the MCS Act, the course of action as contemplated under Rule 107 would have to be followed. The Petitioners/plaintiffs therefore ought to have raised an objection to the attachment of the said house property by taking recourse to Rule 107. However, instead of doing so, jpc wp1502-11.sxw 5 the petitioners/plaintiffs have rushed to the Civil Court, when it is questionable whether the Civil Court can exercise jurisdiction in a matter concerning an auction to be held pursuant to the certificate issued under Section 101 of the MCS Act. Though as stated herein above, the Courts below have not approached the matter from the said angle, nevertheless, on the application of the said provisions of the MCS Act, the refusal to grant temporary injunction to the Petitioners/plaintiffs cannot be faulted with, as both the Courts below have reached a prima facie finding that the property in question is not an ancestral property. 6. Be that as it may, in view of the remedy provided in Rule 107 Sub Rule 13, though both the Courts below have held against the Petitioners/plaintiffs as regards their dis-entitlement to the temporary injunction, in my view, the Petitioners/plaintiffs nevertheless would be entitled to object to the said attachment and auction by taking recourse to sub Rule 13 of Rule 107. If such objections are raised, needless to say that the Special Recovery Officer i.e. Respondent no.4 would consider them in accordance with law, uninfluenced by the order passed by the trial Court as well as the First Appellate Court. Learned counsel for the Respondent No.3 Bank Shri Borkar does not seriously dispute the said course of action being followed. Hence though there is no merit in the jpc wp1502-11.sxw 6 above Petition in so far as refusal of the temporary injunction is concerned, with the liberty as aforesaid granted to the Petitioners- Plaintiffs, the Writ Petition is dismissed. (R. M. SAVANT, J.)