1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.76 OF 2010 IN WRIT PETITION NO. 9805 OF 2009 Mrs. Vimla Jaichand Bhandari ) Aged 63 years, Indian Inhabitant ) Residing at Flrat No.58, 5th Floor, ) Mantri Corner Co-op. Hsg. Society ) Sayani Road Junction, Mumbai 400 028. ).. Appellant Versus 1) The Assistant Registrar ) Co-op. Societies, Wadala ) Mumbai 400 037. ) 2) Mr. S.R. Patil ) Special Recovery Officer ) Sangli Sahakari Bank Ltd., ) 151, Sangali Sahakar Bhavan ) S.K. Bole Marg, Dadar (W) ) Mumbai 400 028. ) 3) The Chairman ) Sangli Sahakari Bank Ltd., ) 151, Sangali Sahakar Bhavan ) S.K. Bole Marg, Dadar (W) ) Mumbai 400 028. ) 4) The General Manager ) Manager, Sangli Sahakari Bank Ltd., ) 151, Sangali Sahakar Bhavan ) S.K. Bole Marg, Dadar (W) ) Mumbai 400 028. ) 2 5) Mr. Nilesh M. Kudalkar ) C/o Special Recovery Officer ) 151, Sangali Sahakar Bhavan ) S.K. Bole Marg, Dadar (W) ) Mumbai 400 028. ).. Respondents Mr. A.L. Patki i/b M/s Bharat Vaishnava and Co. for the Appellant. Mr. A.P. Vanarse, Assistant Government Pleader, for Respondent No.1. Mr. H. Toor i/b Mr. Subhash Bane for Respondent Nos.2 to 4. Mr. D.H. Mehta i/b Ms. Swati Sawant for Respondent No.5. CORAM : ANIL R. DAVE, C.J., AND S.C. DHARMADHIKARI, J. JUDGMENT RESERVED ON : 22ND MARCH 2010 JUDGMENT PRONOUNCED ON : 7TH APRIL 2010 JUDGMENT (PER CHIEF JUSTICE) Being aggrieved by an order dated 25th February 2010 passed in Writ Petition No.9805 of 2009, this Appeal has been filed by the Appellant-original Petitioner. 3 2. The facts giving rise to the present Appeal in a nutshell are as under :- Son of the Appellant had borrowed money from the Respondent Bank and the Appellant had given her consent to mortgage her property so as to secure the amount lent to her son. A Consent Letter was executed by her and in the Mortgage Deed she had signed as a witness. 3. As the amount payable by her son had not been repaid with interest thereon, proceedings had been initiated by the Respondent Bank. Notices had been given not only to the son of the Appellant but also to the Appellant when the amount payable had not been paid. Ultimately, proceedings had been initiated under the provisions of the Maharashtra Co-operative Societies Rules, 1961 (hereinafter for the sake of brevity referred to as “the Rules”) and the property in question had been attached. The property had been thereafter sold by holding an auction and the Sale Certificate in respect of the sale had also been given. 4 4. The Recovery Certificate dated 12th December 2006 had been challenged by the Appellant before the Divisional Joint Registrar, Co-operative Societies, Mumbai Division by filing a Revision Application and the said Revision Application had been rejected on 13th November 2009. 5, Being aggrieved by the order passed in the said Revision Application, the aforesaid Writ Petition had been filed by the Appellant which has been rejected. 6. The learned Advocate appearing for the Appellant has mainly submitted that the property in question had been disposed of by holding an auction though it had not been attached as per the provisions of the Rules. Moreover, no notice of whatsoever type had been issued to the Appellant. It has been further submitted that the Appellant was not informed about the proceedings pertaining to the recovery and though the amount payable by the son of the Appellant had been offered to the Recovery Officer, the property in question had been disposed of by holding an auction. Moreover, according to the learned Advocate, the sale price was not adequate and, therefore, 5 the Appellant has suffered substantial loss. It has been also submitted that as the property had not been mortgaged by the Appellant, her property could not have been disposed of for recovery of debt of her son. 7. On the other hand, it has been submitted on behalf of the Respondent Bank as well as the buyer of the property in question at the auction, that necessary procedure to be followed under the provisions of the Rules had been duly followed by the Recovery Officer and, therefore, the auction was valid. It has been further submitted that the Appellant very well knew about the proceedings with regard to the recovery and yet she did not make any effort to make the payment. It has been also submitted that the Appellant had made several efforts to stall the proceedings with regard to sale of the property in question, but having failed in all efforts, the Petition referred to hereinabove had been filed which has been rightly rejected. It has also been submitted that the Appeal is not maintainable under Clause 15 of the Letters Patent because the learned Single Judge had passed the impugned order in the supervisory jurisdiction under Article 227 of the Constitution of India. 6 8. We have heard the learned Advocates at length and have also perused the impugned judgment and other relevant proceedings. 9. We do not find any substance in the submissions made by the learned Advocate appearing for the Appellant and we are of the view that the learned Single Judge has rightly rejected the Petition. 10. It is pertinent to note that the Appellant was very much aware about the fact that her property was being mortgaged and she had permitted the Respondent Bank to have an impression that she was a party to the mortgage. She had given her consent by executing a Consent Letter whereby she had agreed to mortgage the property in question. It is also an admitted fact that the Mortgage Deed had been signed by her as a witness as she had already informed the Respondent Bank that she had permitted her son to mortgage the property. The said fact was also incorporated in the Mortgage Deed. 7 11. The averments to the effect that the Appellant was not informed about the recovery proceedings or about the default of her son are also not correct. Upon perusal of the record, it appears that two public notices had been given before the property in question had been disposed of by an auction. One notice was given on 27th June 2009 and another notice was given on 21st July 2009. Moreover, notice had also been given to the Appellant when her son had failed to repay the amount in question. The submission of the learned Advocate appearing for the Appellant that the property had not been attached before it was put to sale is also not correct because the property in question had already been attached before it was put to sale. It is also pertinent to note that the reserved price of the property in question determined before auctioning the sale was Rs. 44.64 lakhs. At the time of auction, there were three bidders and the highest amount offered was Rs.56.50 lakhs. The said amount has already been paid by the auction purchaser and Sale Certificate has already been granted in favour of the auction purchaser. 12. The submission made on behalf of the Appellant that the amount payable by the principal borrower had been offered to the 8 Respondent Bank is also not correct. Upon perusal of the record, it appears that the learned Advocate for the Appellant’s son had addressed a letter to the Respondent Bank along with a photocopy of a post-dated cheque. Sending a photocopy of a cheque cannot be said to be an offer to tender an amount payable by him. Therefore, we are not prepared to believe that the amount payable by the principal borrower had been offered or tendered to the Respondent Bank. 13. So far as the alleged violation of the provisions of Rule 107 of the Rules is concerned, upon perusal of the record we find that there was no violation of any of the Rules. According to Rule 107(13) of the Rules, when an immoveable property is sold by the Sale Officer, any person owning the property can initiate proceedings under the said Rule by depositing payment as prescribed under Rule 13(i)(a) and (b) of the said Rule. In such an event, in addition to the amount of arrears specified in the proclamation of sale, the sum equal to 5% of the purchase money is to be deposited so that the additional 5% of the purchase price can be given by way of compensation to the auction purchaser and the amount of arrears 9 specified in the proclamation of sale can be given to the creditor so as to satisfy him. In the instant case, no amount was ever offered by the Appellant or by her son. It is also pertinent to note that instead of making payment, the Recovery Certificate had been challenged and the said challenge had ultimately failed. 14. In the aforesaid circumstances, it cannot be said that the auction sale had been conducted in violation of any of the provisions of the Rules. 15. We also record the fact that several efforts were made by the Appellant to stall the proceedings, but in all attempts she had miserably failed. The learned Single Judge has also referred to the said attempts in the impugned order. 16. We also feel that the Petition wherein the impugned order has been passed, the learned Single Judge had exercised jurisdiction of this Court under Article 227 of the Constitution of India and, therefore, in fact this Appeal is not maintainable but so as 10 to see that all the facts are placed on record, we have incorporated relevant facts in this order. 17. The learned Advocate appearing for the Appellant has made a request to pass an order to the effect that the Court Receiver be restrained from handing over the possession of the property in question to the auction purchaser for six weeks. The said request is not reasonable and, therefore, the same is rejected. We note the fact that the entire sale price amount had been paid by the auction purchaser on 27th August 2009 and the Sale Certificate had also been issued on 9th September 2009. Possession of the property in question is with the Court Receiver and, therefore, in our opinion, it would not be proper to restrain the Court Receiver from handing over the possession of the property in question to the auction purchaser who is a bona fide buyer for consideration. 18. We also note the fact that the Appellant was personally present in Court for giving necessary instructions to the learned Advocate appearing for her and she was made aware about the entire proceedings by the learned Advocate appearing for her. 11 19. For the reasons recorded hereinabove, we dismiss the Appeal. No order as to costs. CHIEF JUSTICE (S.C. DHARMADHIKARI, J.)