=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION LETTERS LETTERS LETTERS PATENT PATENT PATENT APPEAL NO.102 OF 2009 APPEAL NO.102 OF 2009 APPEAL NO.102 OF 2009 IN IN IN WRIT WRIT WRIT PETITION PETITION PETITION NO.2052 OF 2009 NO.2052 OF 2009 NO.2052 OF 2009 WITH WITH WITH LETTERS LETTERS LETTERS PATENT PATENT PATENT APPEAL NO.104 OF 2009 APPEAL NO.104 OF 2009 APPEAL NO.104 OF 2009 IN IN IN WRIT WRIT WRIT PETITION PETITION PETITION NO.2048 OF 2009 NO.2048 OF 2009 NO.2048 OF 2009 WITH WITH WITH LETTERS LETTERS LETTERS PATENT PATENT PATENT APPEAL NO.105 OF 2009 APPEAL NO.105 OF 2009 APPEAL NO.105 OF 2009 IN IN IN WRIT WRIT WRIT PETITION PETITION PETITION NO.2055 OF 2009 NO.2055 OF 2009 NO.2055 OF 2009 WITH WITH WITH LETTERS LETTERS LETTERS PATENT PATENT PATENT APPEAL NO.106 OF 2009 APPEAL NO.106 OF 2009 APPEAL NO.106 OF 2009 IN IN IN WRIT WRIT WRIT PETITION PETITION PETITION NO.2057 OF 2009 NO.2057 OF 2009 NO.2057 OF 2009 WITH WITH WITH LETTERS LETTERS LETTERS PATENT PATENT PATENT APPEAL NO.107 OF 2009 APPEAL NO.107 OF 2009 APPEAL NO.107 OF 2009 IN IN IN WRIT WRIT WRIT PETITION PETITION PETITION NO.2058 OF 2009 NO.2058 OF 2009 NO.2058 OF 2009 WITH WITH WITH LETTERS LETTERS LETTERS PATENT PATENT PATENT APPEAL NO.108 OF 2009 APPEAL NO.108 OF 2009 APPEAL NO.108 OF 2009 IN IN IN WRIT WRIT WRIT PETITION PETITION PETITION NO.2015 OF 2009 NO.2015 OF 2009 NO.2015 OF 2009 WITH WITH WITH =2= LETTERS LETTERS LETTERS PATENT PATENT PATENT APPEAL NO.109 OF 2009 APPEAL NO.109 OF 2009 APPEAL NO.109 OF 2009 IN IN IN WRIT WRIT WRIT PETITION PETITION PETITION NO.2056 OF 2009 NO.2056 OF 2009 NO.2056 OF 2009 WITH WITH WITH LETTERS LETTERS LETTERS PATENT PATENT PATENT APPEAL NO.110 OF 2009 APPEAL NO.110 OF 2009 APPEAL NO.110 OF 2009 IN IN IN WRIT WRIT WRIT PETITION PETITION PETITION NO.2051 OF 2009 NO.2051 OF 2009 NO.2051 OF 2009 Ichalkaranji Urban Co-op. Bank Ltd. and anr. ...Appellants v/s Prakash Offset Printeres and others ...Respondents Mr G.S. Godbole i/b Mr P.M. Arjunwadkar for Appellants. Mr S.S. Patwardhan for Respondents. CORAM CORAM CORAM : D.K. DESHMUKH AND R.S. MOHITE JJ. : D.K. DESHMUKH AND R.S. MOHITE JJ. : D.K. DESHMUKH AND R.S. MOHITE JJ. DATE DATE DATE : 7TH MAY 2009 7TH MAY 2009 7TH MAY 2009 =3= P.C. :- 1. In all these appeals, appellants and respondents are the same. Therefore, all these appeals can be conveniently disposed off by a common order. 2. Admit. By consent of parties, the appeals are heard finally. 3. The admitted facts are that the respondents have taken loans from the Co-operative Bank which is the appellants in all these appeals. There was default committed in paying back the loans by the respondents. Therefore, the appellant - Co-operative Bank obtained recovery certificates under section 101 of the Maharashtra Co-operative Societies Act 1960. After obtaining the recovery certificates, proceedings for recovery of the loans were initiated. It is an admitted position before us that for securing the loans, machines, stock in trade and raw material have been hypothecated by the respondents to the Bank. For the purpose of attachment of hypothecated property, the process of taking inventory was to be done. It appears that while the process of taking inventory of the property was going on, objections were raised by the =4= respondents, as a result the process of taking inventory could not be completed and therefore, the premises where the hypothecated property was lying was sealed by the Recovery Officer. The action of the Recovery Officer of sealing the premises was challenged before the Divisional Joint Registrar, Co-operative Societies, Kolhapur. He rejected the revision. Therefore, writ petitions were filed before this Court challenging the order of the Divisional Joint Registrar. By the order which is impugned in these appeals, the learned Single Judge of this Court in writ petitions filed by the respondents set aside the order sealing the premises. The learned Single Judge also set aside attachment of both, movable and immovable properties. The respondents have also been permitted by the learned Single Judge to carry on the business with the help of the hypothecated property only on their depositing an amount of Rs.10,00,000/-. While these letters patent appeals were pending, it appears that the respondents moved the divisional Joint Registrar, in revision now challenging the recovery certificates. The Divisional Joint Registrar entertained the revision and granted stay of the recovery proceedings. That order of the Divisional Joint Registrar has been challenged by the appellant - Bank by filing writ petition in this Court and we have been informed that in that writ petition, an interim order has been made by the learned Single Judge staying =5= the interim order of the Divisional Joint Registrar in revision. In that writ petition, it appears that a statement was also made on behalf of the Bank that they will not go ahead with the recovery proceedings. 4. We have heard learned counsel for both the sides. We find from the record that it is true that the premises where the machines and other hypothecated property are lying, is not hypothecated to the Bank, the premises were required to be sealed by the Recovery Officer because the work of making inventory of the hypothecated property was incomplete. There is some dispute between the parties whether before sealing the premises, the work of attachment of hypothecated property was over or it was incomplete. Though it is common ground that the work of taking inventory was incomplete, during the course of hearing when we pointed out to the learned counsel appearing for respondents that as it is an admitted position that the machines, stock in trade and raw material are hypothecated and once that hypothecated property is attached, the respondents cannot be permitted to use the property, the learned counsel submitted that unless the respondents are permitted to carry on their business with the help of hypothecated property, they will not be in a position to repay the debt of the appellant - Bank. In this background, the learned counsel appearing for the =6= respondents agreed to the suggestion made by us that in that event, a Receiver can be appointed on the hypothecated property and the respondents can be permitted to carry on the business with the help of the hypothecated property as agent of the Court Receiver. This suggestion was also not opposed by the learned counsel appearing for Bank except that according to him, the amount of royalty suggested by us should be increased. In our opinion, taking overall view of the matter, an order appointing Court Receiver on the hypothecated property and directing him to appoint respondents as his agents with permission to carry on business with the help of the hypothecated property will be in the interest of justice and will not cause prejudice to the interest of the parties involved. The respondents have also stated before us that they are willing to pay royalty and that the amount of royalty received by the Court Receiver can be adjusted towards the loan amount that is payable by the respondents to the Bank. In this view of the matter therefore, in our opinion, following order would meet the ends of justice. 5. The order of the learned Single Judge impugned in these appeals is set aside, the appellant No.2 - Recovery Officer is appointed as Court Receiver of the hypothecated property. The Court Receiver shall appoint the respondents as his agents to be in possession of the =7= hypothecated property on usual terms and conditions including royalty but not security. The amount of royalty is fixed at Rs.5,00,000/- p.m. The agents of the Court Receiver shall be liable to pay electricity charges and other outgoings that may be payable. The Court Receiver shall take possession of the hypothecated property symbolically and deliver it to the respondents as agents of the Court Receiver. The Court Receiver thereafter shall complete the process of making inventory of the hypothecated property and then deliver its possession to the agents of the Court Receiver. The respondents as agents of the Court Receiver shall enter into an agreement with the Court Receiver within a period of two weeks from today. 6. The appellant - Bank shall be at liberty to apply to the Divisional Joint Registrar, Co-operative Societies, Kolhapur where proceedings challenging the recovery certificates are pending for enhancement in the amount of royalty, if according to the Bank, the amount of royalty fixed by the Court is not adequate. In case such an application is made, the Divisional Joint Registrar shall consider it in accordance after granting an opportunity of being heard to both the sides without being influenced by the fact that we have fixed the amount of royalty at Rs.5,00,000/-. The Bank shall be at liberty to encash cheque of Rs.10,00,000/- which has =8= been handed over by the respondents to the Bank pursuant to the order of the learned Single Judge without prejudice to its rights and contentions and shall give credit of that amount to the respondents. the proceedings before the learned Single Judge in writ petitions which have been filed by the Bank and the proceedings before the Divisional Joint Registrar, Co-operative Societies, Kolhapur which are presently pending but stayed by the learned Single Judge will not be affected by this order. Letters patent appeals are disposed off with no order as to costs. . Civil applications taken out in all these appeals do not survive for consideration. Hence disposed off as such. . Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy is expedited. ( D.K. DESHMUKH J.) ( R.S. MOHITE J.)