-: 1 :- caw-2120/10 & others. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 2120 OF 2010 IN WRIT PETITION NO. 4017 OF 2010 Shivkumar CHS. Ltd. ..Applicant. versus. S. Vishwanathan and Ors. ..Respondents. WITH CIVIL APPLICATION NO. 2121 OF 2010 IN WRIT PETITION NO. 4019 OF 2010 Shivkumar CHS. Ltd. ..Applicant. versus. Mrs. S. J. Patil and Ors. ..Respondents. WITH CIVIL APPLICATION NO. 2122 OF 2010 IN WRIT PETITION NO. 4020 OF 2010 Shivkumar CHS. Ltd. ..Applicant. versus. C. H. Vishwanath and Ors. ..Respondents. WITH CIVIL APPLICATION NO. 2123 OF 2010 IN WRIT PETITION NO. 4022 OF 2010 Shivkumar CHS. Ltd. ..Applicant. versus. Mrs. Krishna Rajan.and Ors. ..Respondents. WITH CIVIL APPLICATION NO. 2124 OF 2010 IN WRIT PETITION NO. 4027 OF 2010 srp -: 2 :- caw-2120/10 & others. Shivkumar CHS. Ltd. ..Applicant. versus. Ms. P. S. Ullal and Ors. ..Respondents. WITH CIVIL APPLICATION NO. 2125 OF 2010 IN WRIT PETITION NO. 4023 OF 2010 Shivkumar CHS. Ltd. ..Applicant. versus. Mr. S. M. Ranganekar and Ors. ..Respondents. WITH CIVIL APPLICATION NO. 2126 OF 2010 IN WRIT PETITION NO. 4027 OF 2010 Shivkumar CHS. Ltd. ..Applicant. versus. Mr. Z. A. A. Khan and Ors. ..Respondents. CIVIL APPLICATION NO. 2127 OF 2010 IN WRIT PETITION NO. 4018 OF 2010 Shivkumar CHS. Ltd. ..Applicant. versus. Mrs. I. Fernandes and Ors. ..Respondents. CIVIL APPLICATION NO. 2128 OF 2010 IN WRIT PETITION NO. 4016 OF 2010 Shivkumar CHS. Ltd. ..Applicant. versus. Suresh Checkar and Ors. ..Respondents. -: 3 :- caw-2120/10 & others. Coram : R. V. MORE, J. Date : October 1, 2010. P. C. : 1. Learned counsel Mr. L. H. Patil undertakes to file vakalatnama on behalf of respondent no.1. Undertaking is accepted. Heard Mr. Pungliya, learned counsel for the Applicant and Mr. Patil, learned counsel for respondent no.1. 2. These civil applications are filed for modification of the common order dated 16th July 2010 passed in above writ petitions. By the said order, the 1st respondent was given liberty to challenge the certificate issued under section 101 of M.C.S. Act, 1960 alongwith an application for condonation of delay. The Applicant-society was allowed to withdraw 50% of the amount deposited by respondent no.1, without furnishing any surety and the balance amount was directed to be invested in a nationalised bank. This order was passed, as according to the 1st respondent, he had deposited the entire amount due as per the recovery certificate, in the aforesaid writ petitions. 3. Mr. Pungliya, learned counsel for the applicant submitted that the amount deposited by the 1st respondent in the aforesaid writ petitions is not the entire amount of recoverable dues as per the section 101 Recovery Certificate. He further submitted that, therefore, the applicant- society instead be allowed to withdraw 50% of the recoverable dues -: 4 :- caw-2120/10 & others. from the amount deposited by the 1st respondent in this Court. Mr. Patil, learned counsel for the 1st respondent submitted that the individual members, namely, the 1st respondents herein have already filed revision applications pursuant to the order dated 16th July 2010. He submitted that therefore the said order needs no modification, inasmuch as whether the applicant-society is entitled to recover any amount from the 1st respondents will be decided in the pending revisions. 4. Having heard learned counsel for the respective parties, I find that in accordance with section 154(2A) of the MCS Act, 1960, the 1st respondent is required to deposited with the Applicant-society an amount equivalent to 50% of the recoverable dues as per certificate under section 101 of the MCS Act. If this position is considered alongwith the contention of Mr. Pungliya that the amount deposited in this Court by respondent no.1 is not the entire amount of recoverable dues, then in my opinion, clause (iii) of the said order dated 16th July 2010 deserves to be modified. 5. Mr. Pungliya, learned counsel for the applicant-society contended that clause (iv) of the operative part of the said order deserves to be deleted, since the order bifurcating the society was, though, passed on 6/9/2004, it never came into effect as same was stayed from time to time. He further submitted that the applicant-society is paying all the -: 5 :- caw-2120/10 & others. dues to the local authorities and incurring all other expenses pertaining to the flats of the 1st respondents and other members. He submitted that, therefore, the amount which he is allowed to withdraw should not be subject to the final outcome of the Writ Petition No. 4426 of 2005. Mr. Patil, learned counsel for the 1st respondent has no objection if clause (iv) is substituted. 6. In view of the above facts and circumstances, aforesaid civil applications are disposed of by passing following order. -: O R D E R :- (1) Clause (iii) of the order dated 16th July 2010 passed in aforesaid writ petitions is substituted by following clause; “(iii) Respondent no.1-Society is allowed to withdraw the amount equivalent to 50% of the recoverable dues as per the recovery certificates issued under section 101 of the MCS Act, 1960 from the amount deposited by the petitioner in each of the petitions in this Court. Balance amount shall be invested in the nationalised bank, initially for a period of six months and thereafter same shall be renewed from time to time.” (2) Clause (iv) of the order dated 16th July 2010 passed in aforesaid writ petitions is substituted by following clause; “(iv) The withdrawal of the amount by respondent no.1-society pursuant to above clause (iii) as well as amount directed to be deposited shall be subject to final outcome of revision -: 6 :- caw-2120/10 & others. under section 154(2A) of the MCS Act, 1960 that may be filed by the petitioner.” (3) Except aforesaid two modifications, rest of the order is kept as it is. (4) All the aforesaid civil applications stand disposed of. (R.V. MORE, J.)