1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4290 of 2009 Date of decision:26/10/2010 For approval and signature HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/4290-09wp 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4290 OF 2009 Smt.Taramati w/o Balkrushna Kale, Age years, Occu. Nil, r/o: Datta Mandir, Deopur, Dhule, Tq. & Dist.Dhule. ...PETITIONER VERSUS 1. The State of Maharashtra, Through Chief Secretary, Cooperation Department, mantralaya, Mumbai 32. 2. The Assistant Registrar, Cooperative Societies, Dhule, Dist. Dhule. 3. The Dadasaheb Rawal Co-operative Bank of Dondaicha Ltd., Head Office, Station Bagh, Through its Manager, Dondaicha, Dist. Dhule. 4. The Dadasaheb Rawal Co-operative Bank of Dondaicha Ltd., Head Office, Station Bagh, Through its Special Recovery Officer, Dondaicha, Dist. Dhule. 5. M/s Vikram Trading Corporation, through its Proprietor Vikramsingh s/o Rajendrasingh Kale, r/o. Hotel Tridev Complex, First Floor, Vidyanagari, Deopur, Dhule. 3 6. Dilip s/o Yaswani Jadhav, Age Major, Occu. Business, r/o 13, Kamlabai, Sant Gadgebaba Colony, Deopur, Dhule. 7. Ashok s/o Uttamrao Marathe, Age Major, Occu. Business, r/o 53, Vidyanagar, Deopur, Dhule. ...RESPONDENTS ... Mr. D.S.Bagul, Adv., for the petitioner. Mr.K.S.Patil, A.G.P., for respondent State. Mr.P.R.Patil, Adv., for respondent no. 3 & 4. Mr. A.B.Girase, Adv., for respondent no.6. ... CORAM: K.U.CHANDIWAL, J. DATE : 26/10/2010 *** ORAL JUDGMENT: 1. Heard. Rule. By consent of the learned Counsel, the matter is finally heard at admission stage. Additional set of documents exchanged, including affidavits. 2. Respondent no.5 is grandson of the petitioner, obtained financial facilities from respondent nos. 3 and 4. The petitioner entered into a mortgage, creating charge of the Bank in respect of the liability of respondent no.5 to be discharged, she agreed in the deed of mortgage that though her status is as a collateral 4 security or consenter, however, the liability of the Bank will be treated as her personal loan. 3. The petitioner questions the action of attachment and auction notice dt.13.6.2009, issued by Special Recovery Officer of respondent no.3 Bank on following grounds: a) The petitioner is not borrower. Consequently, the certificate in terms of Section 101 of Maharashtra Cooperative Societies Act, 1960 (For short, "MCS Act"), being not obtained against her, her property cannot be put on auction. b) The petitioner is not questioning the legality of certificate hence,he has not filed a revision in terms of Section 154 of the said Act. c) The property is worth Rs.73 lacs or even more, however, is being put on auction by putting upset price of Rs.9 to Rs.10 lacs. d) It was imperative for the Bank to first exhaust its remedies against the principal borrower and, in case, if the borrower - respondent no.5 fails to discharge the liability, the Bank could 5 have attached the property or put the same on auction. e) Rule 107 of the M.C.S.Rules, 1961 does not cover case of the petitioner to be activated. 4. Reliance is placed to judgment in the matter of Ambajogai Peoples Co-operative Bank Ltd., Ambajogai Vs. Shrimauli Builders, Pune and others ( 2008(4) Mh.L.J.495). Respondent no.3 therein canvassed that the recovery certificate, obtained by the appeellant against the first respondent, does not bind the third respondent, as he was not a party to the recovery proceedings under Section 101 of the Act. 5. Learned Counsel for respondent no.3 Bank has attacked the maintainability of the writ petition on following grounds: (a) Alternate remedy in terms of revision under Section 154 of the M.C.S.Act is available. (b) Clause (iii) of sub-rule (7) of Rule 107 of M.C.S. Rules takes care of any objection of the petitioner or a stranger in the sale proceeds. 6 (c) If the petitioner is aggrieved by quoting incorrect valuation, the petitioner can bring the prospective purchasers of her choice who can also negotiate with respondent no.3 Bank. Upset price by itself is not a final word in the matter. 6. With the above factual details, it is clear, the financial facility was availed by respondent no.5, grandson of the petitioner, who resides with the petitioner in House 15, as is clarified in voters list tendered by the Bank (Annexure R-4). So, the contention that there was no service from the competent Government authorities upon the petitioner of either the upset price or of any meeting is inconceivable. 7. It is more than clear, the purpose of Section 101 proceedings is for ascertaining amount due, interest of the guarantors stand represented by the borrower. Non filing of proceedings against the petitioner, seeking certificate under Section 101, by itself, will not obliterate the legal position and dilute the rights of the Bank to claim recovery, as there exists a valid mortgage in favour of respondent no.3 Bank. 8. The contention that without any action in terms of Section 101, property is attached and 7 it is put on auction, will have to be taken into consideration in above context. The apparent feature projected in the matter illustrate, in order to circumvent Bank loan, and to avoid effecting the contemplated action, the petitioner has been used as a stooge by respondent no.4 or 5, by any person interested in dragging the repayment to respondent no.3. 9. The liability of petitioner vis-a-vis her grand son, respondent no.5 was a collateral, by virtue of execution of mortgage, binds, as her personal liability and it is not open for the petitioner to raise a contention that issuance of certificate under Section 101 is not binding on her. 10. The other aspect of suppression of fact, though is canvassed by Mr.Patil, learned Counsel for the Bank, however, I do not desire to dwell upon the same as, in first paragraph of the petition, status of petitioner with respondent no.5 and respondent no.5 availing financial facilities are disclosed. 11. After mortgage sought to be explained by Mr.Bagul, petitioner on dt.18.10.2004 executed gift deed in favour of her son Rajendra Kale, however, subsequently, gift deed is - 8 recalled or terminated. This is not reflected in any of the papers annexed to the petition. 12. The provisions of Section 154 of M.C.S.Act contemplate even a revision irrespective of challenge to certificate under Section 101, can be entertained. This is more so, as the property of the petitioner is questioned to be attached and put on auction. It was necessary for the petitioner to have invoked the efficacious and alternate remedy, instead of coming to the writ jurisdiction, which is necessarily to be used sparingly. 13. The Apex Court, in the matter of Aahmedabad Mfg. & Calico Ptg.Co.Ltd. Vs. Ram Ramtahel Ramanand and others ( AIR 1972 SC 1598) have observed in para 12 as under: " Power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and, not for correcting mere errors. Reference also has been made in this regard to the case Waryam Singh & Anr. vs. Amarnath & Anr. [1954 SCR 565]. This court in Babhutmal Raichand Oswal vs. Laxmibai R. Tarte and Anr. [AIR 1975 SC 1297] has observed that the power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal and that the High Court in exercising its jurisdiction under 9 Article 227 cannot convert itself into a court of appeal when the legislature has not conferred a right of appeal. Judged by these pronounced principles, the High Court clearly exceeded its jurisdiction under Article 227 in passing the impugned order." 14. In a recent judgment, the Hon'ble Apex Court, in the matter of State of Haryana V. Manoj Kumar reported in (2010) 4 SCC 350, again highlighted the position of effect of exercise of jurisdiction under Article 227 of the Constitution of India. 15. The Apex Court has indicated that the power under Article 227 of Constitution of India is limited to see that the Courts below function within the limits of its authority or jurisdiction. User of Article 227 is not by any means appellate in its nature for correcting the errors of the subordinate Courts but is merely a power of superintendence to be used to keep them within the bounds of their authority. 16. The petitioner surreptitiously moved this Court and snatched ad interim relief without serving its copy in time to respondent Bank. 17. Even if the petitioner's rights are hampered prejudicially, the provision of Rule 107 (13) M.C.S. Rules takes care. The objection can be considered by the Recovery Officer or the 10 competent authorities. 18. In the backdrop of above details, no merits in the writ petition. It is dismissed. Rule discharged. Ad interim relief vacated. (K.U.CHANDIWAL) JUDGE ... AGP/4290-09wp