-: 1 :- wp-1635/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1635 OF 2011 Mrs. Kokila Jesuji Chawda. ..Petitioner. Versus The Divisional Jt. Registrar & Others. ..Respondents. Mr. S. S. Kanetkar for the petitioner. Mr. Rahul S. Kadam for R-4. Mr. K. V. Tembe for R-3. Coram : RANJIT MORE, J. Date : September 21, 2011. P. C. : 1. Heard learned counsel for the respective parties. Respondent no.3 is the co-operative bank and the petitioner is borrower of the said bank. Recovery Certificate under section 101 of the MCS Act, 1960 is already issued against the petitioner and that has achieved finality. In execution of this certificate, the petitioner’s property was auctioned under the provisions of Rule-107 of the Maharashtra State Co-operative Societies Rules, 1961 on 20/11/2003. This order was challenged by the petitioner by filing writ petition in this Court, being Writ Petition No.4086 of 2008. That writ petition was disposed of by the order dated 30th July 2008 as withdrawn. srp -: 2 :- wp-1635/11 However, it was made clear that withdrawal of the petition would not come in the petitioner’s way in challenging section 101 sale certificates granted in favour of respondent no.4 on 19/3/2004. 2. The petitioner has accordingly preferred a revision before the 2nd respondent. In the prayer clause (a), the petitioner has challenged auction sale and in the prayer clause (b), the petitioner has challenged the sale certificate. Respondent no.3 bank filed an application challenging the maintainability of revision. That objection was accepted and revision is dismissed by the impugned order. 3. The revision is dismissed mainly on two grounds that (i) the date of auction mentioned in prayer clause (a) is not correct and (ii) no application is filed for condonation of delay that had occurred in filing revision. 4 Mr. Kantekar, learned counsel appearing on behalf of the petitioner submitted that in view of the order passed by this Court in Writ Petition No.4086 of 2008, the petitioner cannot challenge auction. He submitted that therefore prayer clause -: 3 :- wp-1635/11 (a) could not have been made in the revision application. Regarding prayer clause (b), Mr. Kanetkar submitted that revision challenging sale certificate is maintainable. This proposition is not disputed by Mr.Thembe and Mr.Kadam. Mr. Thembe, however, submitted that the impugned order cannot be disturbed inasmuch as the petitioner filed this revision without there being an application for condonation of delay. Mr. Kanetkar, learned counsel for the petitioner, however, submitted that by filing revision in the year 2009 the petitioner challenged the sale certificate dated 19/3/2004, the revision application could have been accompanied by the delay condonation application, however, inadvertently same was not filed. He submitted that an opportunity should be given to the petitioner to file an application for condonation of delay and same may be considered by respondent no.1 after hearing both the sides, namely, the petitioner and respondent nos. 3 & 4. Mr. Thembe and Mr. Kadam in this regard submitted that the sale is confirmed in the year 2004 and now in the year 2011, it would be prejudicial to the interest of respondent no.4 to disturb the said sale certificate. 5. I am of the view that the petitioner has a statutory right -: 4 :- wp-1635/11 to challenge the sale certificate by way of a revision under section 154 of the MCS Act. It was made clear in the order passed by this Court in Writ Petition No.4086 of 2008 itself that said order will not come in the way of the petitioner in challenging section 101 sale certificate. If there is a delay, the petitioner is entitled to apply for condonation of delay. Of course, this application will have to be decided on merits by the revisional authority after hearing concerned parties. The right of the petitioner to challenge sale certificate cannot be defeated merely because the petitioner did not file application for condonation of delay. In these circumstances, the petition is disposed of by passing following order. -: O R D E R :- (i) The impugned order is quashed and set aside. The petitioner is at liberty to file an application for condonation of delay in Revision No. 95 of 2009. (ii) If an application for condonation of delay is filed by the petitioner within three weeks from today, respondent no.1 shall decide the same in accordance with law after hearing the petitioner and respondent nos. 3 & 4. -: 5 :- wp-1635/11 (iii) In case the petitioner fails to make an application for condonation of delay that has occurred in filing Revision No. 95 of 2009 within the period stipulated above, the impugned order to stand confirmed. (RANJIT MORE, J.)