1 WP-1111.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1111 OF 2011 Vijay Harishchandra Bhagat and ors. : Petitioners versus The Nashik Merchant Co-op. Bank, Nashik & ors. : Respondents. Mr. Makarand P Panchakshari for the Petitioners Mr. Sandeep Shinde for the Respondent Nos.1 and 2. CORAM : R M SAVANT, J. DATE : 22nd November 2011 P.C. 1 Writ jurisdiction of this Court is invoked in respect of the order dated 15/12/2010 passed by the learned District Judge-4, Nashik by which order the Civil Misc. Appeal No.114/2009 filed by the Respondent Nos.1 and 2 herein i.e. the original Defendant Nos.1 and 2 came to be allowed, and resultantly the order of injunction passed by the trial Court in the application for temporary injunction filed by the Petitioner herein came to be set aside. 2 The cause of filing of the Regular Civil Suit No.125 of 2007 is the auction notice issued by the Bank. The sale pursuant to the said auction notice was sought to be challenged on the ground that the Plaintiffs are having share in the property sought to be auction. However, significantly the share of the Plaintiffs was not mentioned in the said suit. It is required to be noted that in the recovery proceedings initiated by the Respondent No.1 herein an amount of Rs.One Crore and Forty Seven Lacs has been adjudicated against the 2 WP-1111.11.sxw borrower of the Respondent No.1 Bank. The said debtors have also share in the property in question. 3 In the said suit, it would be relevant to note that, an injunction is sought in respect of the entire property, and is not limited to the share of the Plaintiffs. The trial Court by an order dated 18/6/2008 allowed the application for temporary injunction filed by the Plaintiffs solely on the ground that the Plaintiffs have a share in the property, and therefore, the property could not be sold for recovering the dues of the debtors. 4 Aggrieved by the said order dated 18/6/2008, the Respondent No. 1 Bank filed an Appeal in the District Court, Nashik. The said Appeal as numbered as Misc. Civil Appeal No.114 of 2009. The order passed by the trial Court was challenged inter alia on the ground that the suit as filed was not maintainable in view of the absence of the statutory notice under Section 164 of the Maharashtra Co-op. Societies Act and Section 115 of the Multi State Co- op. Society Act, 2002 as the Respondent No.1 during the pendency of the said proceedings was converted to a Multi State Bank, that the share of the Plaintiff has not been mentioned in the said suit, and therefore, the injunction could nt be granted in respect of the said property. 5 The First Appellate Court accepting the submissions made on behalf of the Respondent No.1-Bank, and for the grounds mentioned in the 3 WP-1111.11.sxw order has set aside the order dated 18/6/2008 granting injunction. However, in so far as applicability of Section 115 of the Multi State Co-op Society Act, 2002 is concerned, the First Appellate Court set it aside and remanded the matter back for de-novo consideration. 6 In my view, the reasons mentioned by the First Appellate Court in the impugned order for setting aside the order passed by the trial Court cannot be faulted with. In that view of the matter, no case for interdiction is made out. The above Writ Petition is accordingly dismissed. [R.M.SAVANT, J]