IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.22 OF 2010 IN WRIT PETITION NO.371 OF 2007 Mrs.Dilshad Zakirhusen Sheikh .. Appellant Versus Manager, Sahyadri Nggri Coop. Path Sanstha and Ors. .. Respondents Ms.Manjiri Parasnis for appellant Mr.T.D.Deshmukh for respondent No.1 Mr.V.P.Malwankar, Panel Counsel for respondent Nos. 4 and 5 CORAM : ANIL R. DAVE C.J & S.C.DHARMADHIKARI, J. Reserved on : 26th February 2010 Pronounced on : 12th March 2010 ORAL ORDER:- 1] The challenge in this appeal under Clause 15 of the Letters Patent is to the order dated 6th June 2008 passed by the learned Single Judge in Writ Petition No.371 of 2007. The appellant is the original petitioner whereas respondents to this appeal are the original opponents/ respondents. 2] The petition was filed challenging the order dated 19th December 2006 passed by the Divisional Joint Registrar, Cooperative Housing Society dismissing the Revision Application No.308 of 2006. That revision application was preferred by the petitioner challenging the issuance of the Recovery Certificate dated 29th January 2004. Initially, this revision application was dismissed for want of compliance with section 154(2A) of the Maharashtra Cooperative Societies Act. However, the appellant applicant challenged that order by instituting writ petition being W.P.No.9105 of 2005 before this Court and upon an order passed by this Court, the revision application was restored to the file of the Divisional Joint Registrar and eventually dismissed by his order dated 19th December 2006. 3] It is against the rejection of the Revision Application that the subject writ petition was filed. 4] The only contention raised before the learned Single Judge and reiterated before us is that the Recovery Certificate has been issued ex parte and without notice to the petitioner appellant before us. It was contended by Ms.Parasnis learned Counsel for the appeollant that the Revisional Authority has held that the record indicates that the first respondent society submitted an application for issuance of recovery certificate to the competent authority. That application was filed on 14th January 2004. She submits that the Revisional Authority so also the competent authority and the learned Single Judge were in error in holding that a notice was issued by the Authority and together with the application, it was dispatched at the address of the appellant. That packet containing the notice was “not claimed” by the appellant. Hence, this is good service. She submits that the record that is produced before us by the learned AGP would indicate that the appellant is Dilshad Zakir Hussein Shaikh. However, the packet containing recovery certificate is addressed to one Jaffer Raffique Inamdar. He is opponent No.3 before Divisional Joint Registrar. The packet was returned not claimed to the postal authorities by the said Jaffar. There is no proof of the issuance of notice prior to the grant of Recovery Certificate by the competent authority insofar as appellant is concerned. She submits that such a proof has not been produced even before us. In these circumstances and when the amount under the recovery certificate has been duly paid, then, this was a fit case where the writ jurisdiction ought to have been exercised by the learned Single Judge and the orders of the Competent Authority and the Revisional Authority should have been quashed and set aside. Ms.Parasnis submits that it is irrelevant as to whether in pursuance of the recovery certificate, execution proceedings were initiated, an auction was held and the immovable property of the appellant has been sold. Even if the sale certificate has been issued and the sale is confirmed, there were enough powers conferred by the statute to set aside such sale. In any event, this Court’s jurisdiction under Article 226 of the Constitution of India is plenary. Hence, the learned single Judge erred in dismissing the petition. 5] The matter was adjourned on one occasion so as to enable the AGP to produce the record. Further, it was also adjourned so as to enable Mr.Deshmukh appearing for the first respondent society to file an affidavit to demonstrate that the possession of the immovable property has been delivered to the auction purchaser. This course was adopted as Ms.Parasnis disputed taking over of possession by the first respondent in execution of the recovery certificate. 6] In compliance of the aforementioned directions the record has been produced before us. From the record it is clear that the first respondent applied for issuance of recovery certificate against the appellant and two others. The address of the appellant has been mentioned as “Karve Naka Karad”. The Deputy Registrar Cooperative Societies Karad issued the notice and the record indicates that the notice was dispatched at this address of the appellant. Even prior to the proceedings before the Deputy Registrar, the first respondent society through its Advocate had issued notice calling upon the appellant to pay the arrears and regularise the account or else they would initiate Recovery proceedings. This notice has been received and the copies of the acknowledgements in that behalf are placed on record. Further, the appellant has executed an acknowledgement in writing admitting that the amount is due and payable. The extract of the account has also been produced. Thus, from the record it is clear that the appellant was aware of the proceedings before the Deputy Registrar. Further, merely because the Roznama is produced which records that there is no proof of the notice being received by the appellant, does not mean that the proceedings before the Deputy Registrar were vitiated for want of compliance with the Rules and principles of natural justice. The appellant being aware of the proceedings and was fully heard by the authorities at all levels that we are of the view that the learned Single Judge was right in refusing to interfere in writ jurisdiction. The Revisional Authority has observed that before the Deputy Registrar, the appellant was represented by an Advocate. The Advocate remained absent after some time. She, therefore, had knowledge of the proceedings. Thereafter, the property of the appellant was put to auction and the auction sale is confirmed by the Deputy Registrar, Karad on 31st May 2005. The sale certificate is issued on 23rd June 2005. The sale deed is executed and registered on 11th July 2005. 7] Merely because the appellant was permitted to revive the Revision Application by depositing some amount, does not mean that the proceedings culminating in the sale are bad in law. That was an opportunity given to the appellant to make good her case that the Recovery certificate is vitiated for breach of principles of natural justice. She could not establish and prove her case before the Revisional Authority even after the revival of the revision application. Further, she could not demonstrate any prejudice as well. 8] After perusing the record we are satisfied that there is no error apparent on the face of the record or perversity committed by the authorities under the Maharashtra Coop. Societies Act, so as to warrant interference in the extra ordinary, equitable and discretionary jurisdiction under Article 226 and 227 of the Constitution of India. More over, the first respondent now has filed an affidavit and produced a copy of the possession receipt which fully demonstrates that the possession of the property was handed over to the auction purchaser on 5th February 2009. That was after the dismissal of the subject writ petition by the learned Single Judge. Thus, the first respondent society in all fairness waited for disposal of the writ petition and, thereafter has handed over possession. It has also placed on affidavit the statements which would demonstrate that the appellant is in arrears even today. 9] For these reasons, we do not fine any substance in the contentions of Ms.Parasnis. Consequently, the appeal fails and is dismissed accordingly. 10] Reliance by Ms.Parasnis on the Division Bench decision of this Court reported in 1970 Mh.L.J. 116 (Ramchandra and Anr Vs. Collector, Nagpur and Ors), is misplaced. There, on facts it was held by the Division Bench that the recovery certificate was obtained without compliance with the pre-requisites of notice and hearing. There, the return/ affidavit did not indicate compliance with the rules framed in that behalf. In these circumstances, the Division Bench found substance in the arguments before it that the recovery certificate is vitiated because it was issued without any enquiry or notice to the petitioner before it. The Division Bench considered the statutory provisions and the Rules in that behalf and held that there was complete miscarriage of justice, therefore, the writ petition was allowed. That was a finding of fact recorded in para 27 of the Division Bench judgement. The said decision of the Division Bench was followed by a learned Single Judge of this Court in the case of Ganeshkumar Makhalnal Chandak and Anr. Vs. Nagpur Urban Cooperative Bank Ltd. And Anr. (Writ Petition No.1435 of 1992 decided on 27th October 2004) reported in 2005 (3) BCR 925. The ratio in the Division Bench decision was applied because the learned Single Judge on facts found that the recovery certificate and demand notice were issued without holding a proper enquiry and without giving any opportunity of hearing to the petitioners before him. Such are not the facts in the present case. Therefore, both decisions are distinguishable and reliance thereon is not accurate. 11] As a result of the above discussion, the appeal is dismissed with no orders as to costs. (CHIEF JUSTICE) (S.C.DHARMADHIKARI, J)