IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO.6392 OF 2007. WRIT PETITION NO.6392 OF 2007. WRIT PETITION NO.6392 OF 2007. WITH WITH WITH CIVIL APPLICATION No.2701 of 2007 CIVIL APPLICATION No.2701 of 2007 CIVIL APPLICATION No.2701 of 2007. Vijay Omkar Pingale ..Petitioner. V/s. Bhudargad Nagari Sahakari Pat Sanstha and Others ..Respondents. Mr Kishor Patil for the Petitioner. Mr R. A. Thorat with Mr P. J. Thorat, Advocate for Respondent No.1. Mr D.S. Sakhalkar, i/b Ms Nutan Moily for Intervener in C.A. CORAM: V. C. DAGA, J. CORAM: V. C. DAGA, J. CORAM: V. C. DAGA, J. DATED: 09. 09. 2008. DATED: 09. 09. 2008. DATED: 09. 09. 2008. P.C.: P.C.: P.C.: ---- ---- ---- 1. Heard learned counsel for the petitioner. 2. Petitioner is making a grievance that his property was sold in an auction held on 31.3.2007 and he applied for setting aside sale under Rule 107 (13) and (14) of the Maharashtra Co-operative Societies Rules,1961 ("Rules" for short). 3. The relevant portion of Rule 107 (13 and (14) read as under. (13) (i) Where immoveable property has been sold by the Sale Officer, any person either owing such property of holding any interest therein by virtue of a title acquired before such sale may apply to have the sale set aside on his deposing with the Recovery officer.-- (a) for payment to the purchaser a sum equal to 5 per cent of the purchase money, and (b) for payment to the applicant, the amount of arrears specified in the proclamation of sale as that for the recovery of which the sale was ordered together with interest thereon and the expenses of attachment, if any, and sale and other costs due in respect of such amount, less amount which may since the date of such proclamation have been received by the applicant. (ii) If such deposit and application are made within thirty days from the date of sale, the Recovery Officer shall pass an order setting aside the sale and shall repay to the purchaser, the purchase money so far as it has been deposited, together with the 5% deposited by the applicant: Provided that, if more persons than one have made deposit and application under this sub-rule, the application of the first depositor to the officer authorised to set aside the sale, shall be accepted. (iii) If a person applies under sub-rule (14) to set aside the sale of immoveable property, he shall not be entitled to make an application under this sub-rule. (14) (i)At any time within thirty days from the date of the sale of immoveable property, ( 3 ) the applicant or any person entitled to share in a rateable distribution of the assets or whose interest are affected by the sale, may apply to the Recovery Officer to set aside the sale on the ground of a material irregularity or mistake or fraud in publishing or conducing it: Provided that, no sale shall be set aside on the ground of irregularity or fraud unless the Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of such irregularity, mistake or fraud. (ii) If the application be allowed, the Recovery Officer shall set aside the sale and may direct a fresh one. On the expiration of thirty days from the date of sale, if no application to have the sale set aside is made or if such application has been made and rejected, the Recovery Officer shall make an order confirming the sale: Provided that, if he shall have reason to believe that the sale ought to be set aside notwithstanding that no such application has been made or on grounds other than those alleged in any application which has been made and rejected, he may after recording his reasons in writing, set aside the sale. (iv) Whenever the sale of any immoveable property is not so confirmed or is set aside, the deposit or the purchase money, as the case may be, shall be returned to the purchaser. (v) After the confirmation of any such sale, the Recovery Officer shall grant a certificate of sale bearing his seal and signature of the purchaser, and such certificate shall state the property sold and the name of the purchaser." ( 4 ) 4. Perusal of the sub-Rule (13) of Rule 107 would show that deposit of 5% of sale price is condition precedent. The said condition has not been complied with by the Petitioner. There are no averments leading to the ingredient of sub-Rule (14) in the entire application. It can be hardly said that the petitioner has complied with the requirements of sub Rule (13) and (14) of Rule 107. 5. The petitioner, having borrowed Rs. 5 lac some where in the year 2000, committed default and driven the Society to initiate a proceeding under Section 101 of the Maharashtra Co-operative Societies Act, 1960 ("the Act" for short). 6. The petitioner has suffered an adverse order under Section 101 of the Act. Inspite of this adverse order, he did not pay any amount to the Society. He compelled the Society to put his property for auction. Inspite of knowing the auction value, he did not care to deposit 5% thereof. Thus, the gross negligence on the part of the applicant/petitioner cannot enure to his benefit. ( 5 ) 7. Under the above circumstances, considering the conduct of the applicant, non-maintainability of the applications made, which are not only cryptic and perfunctory but the same were not bona fide, as such, this petition is liable to be dismissed. In the result, petition is dismissed in limini with no order as to costs. 8. In view of disposal of writ petition, civil application No. 2701 of 2007 does not survive, the same is disposed of accordingly. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)