6.wp.5440-08 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5440 OF 2008 The Maharashtra State Co-operative Bank Limited, and another. ..Petitioners. Versus The State of Maharashtra and 2 others. ..Respondents. .... Mr.S.M. Oka, Advocate i/b. R.N. Dhorde, Advocate for the petitioners. Mr.V.S. Masurkar, Govt. Pleader, for respondent Nos.1 & 2. Mr.H.S. Venegavkar, Advocate for respondent No.3. .... CORAM : D.K. DESHMUKH, AND K.K. TATED, JJ. DATED : 18TH NOVEMBER, 2009 P.C.:- 1. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. 2. This Petition has been filed by Maharashtra State Co- operative Bank Lted. which is the apex co-operative bank for the State of Maharashtra and Shri R.H.Patil who is an employee of the Bank. 6.wp.5440-08 2 3. There is an award made in favour of the petitioner Bank by the Co-operative Court against Nashik District Co-operative Spinning Mill Ltd., for an amount of Rs.64.42 lacs with interest. The award is dated 30.4.2005. It appears that in relation to the spinning mill, an interim order was passed appointing a liquidator on 6.10.1994, therefore, the Society was sued before the Co-operative Court through the Liquidator. The Liquidator admitted the claim of the Society. It appears that the property of the society was mortgaged to the petitioner bank for securing the loan. The Additional Commissioner and Sub-Registrar, Co-operative Societies (Finance), Maharashtra State, Pune appointed petitioner No.2 as a Recovery Officer under the provisions of the Maharashtra Co-operative Societies Act and the Rules framed therein for recovering the dues recoverable by the petitioner Bank. Petitioner No.2 Recovery Officer however was not given power to fix the up-set price of the property before holding auction of the property for selling the property. Therefore, it appears that petitioner No.2 got the property valued and communicated to respondent No.2 6.wp.5440-08 3 Director of Handloom the amount which should be fixed as upset price but there was no response from respondent No. 2. As a result of that, the property of the Society could not be sold though the property has already been attached by the Recovery Officer. As Respondent No.2 was not responding, this Petition has been filed for a direction to respondent No.2 to approve the upset price which has been communicated by letter dated 20.2.2007. The Liquidator has also been joined as a respondent to this Petition. 4. The net result of the inaction on the part of Liquidator and respondent No.2 is that neither respondent No.3 who has been appointed as a Liquidator in the year, 1994 is taking any steps to sell the property of the society so that the creditors of the Society can be paid nor respondent No.2, who is his superior, is taking any prompt action so that the property of the Society under liquidation can be disposed of and the creditors paid. 5. We heard the matter yesterday. We had suggested to the learned Government Pleader appearing for respondent No.2 - Director of Handloom to seek instructions from the 6.wp.5440-08 4 Director as to whether the Recovery Officer can after calling for fresh valuation report of the property fix the upset price and dispose of the property and deposit the sale proceeds with the Liquidator so that the Liquidator can deal with the sale proceeds in accordance with law. The learned Government Pleader sought time to take instructions. Today, the learned Government Pleader placed before us a copy of the communication received by him from the Director of respondent No.2. The Director stated that the proposal is not acceptable to him; and perusal of the letter shows that the Director is totally oblivious of the order so far passed in the proceedings. He appears to be under the impression that it is only the Liquidator who can sell the property. But he does not anywhere say if only Liquidator can sell the property, why petitioner No.2 has been appointed as a Recovery officer by Additional Commissioner and Special Registrar of the Maharashtra State. In our opinion, the attitude that has been adopted by respondent No.2 shows total ignorance of the record and proceedings. In our view, considering the attitude of respondent No.2 and 6.wp.5440-08 5 the state of affairs as a result of which though there is an award passed in favour of apex bank the petitioner is not in a position to recover the dues while the property of the society continues to lie idle. In our opinion, therefore, the following order would meet the ends of justice : :: O R D E R :: [i] As the valuation of the property was done two years back, the petitioner Bank will get the property valued again and on that basis arrive at the amount which can be fixed as a reserve price of the property situated at Thengode, Taluka - Baglan, District - Nashik and communicate that amount to respondent No.2 requesting him to communicate his approval or rejection to the amount within a period of two weeks from receipt of the communication from the petitioner. [ii] Respondent No.2 on receipt of communication shall either approve the reserve price which is communicated by the Bank or fix any other amount which according to him should be fixed as a reserve 6.wp.5440-08 6 price. The Bank and petitioner No.2 shall take further steps to hold the sale of the property in accordance with the reserve price fixed or approved by respondent No.2. [iii] In case, respondent No.2 fails to communicate his decision on the request made to him, as above, within a period of two weeks from the date of receipt of communication from petitioner No.2, the petitioner No.2 shall be free to assume that respondent No.2 has approved the reserve price communicated to him by petitioner No.2 and then proceed to hold sale of the property in accordance with law on the basis of that reserve price. After completing the sale, the petitioner No.2 shall deduct the expenditure incurred by petitioner No.1 for holding the sale and remit the balance amount along with the accounts of the expenditure incurred to respondent No.3. [iv] Thereafter, petitioner No.1 shall be at liberty to make an application before respondent No.3 for release of the amount in its favour. In case such an application 6.wp.5440-08 7 is made by petitioner No.1 before respondent No.3, respondent No.3 shall decide it in accordance with law within a period of four weeks from the date of receipt of the application by petitioner No.1. [v] Civil Application (Stamp) No.24554 of 2009 is disposed of with liberty to file appropriate proceedings against order dated 24.9.2009. [vi] Rule is made absolute accordingly. Writ Petition is disposed of. (D.K.DESHMUKH,J) (K.K. TATED,J)