1 wp-4528.10 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4528 OF 2010 The Nav Jeevan Cooperative Bank Ltd. .. Petitioner Vs State of Maharashtra & Others. .. Respondents -- Shri Amol Tembe i/by Shri Kishor Tembe for the Petitioner. Shri Suresh Bhosale, AGP for Respondent Nos.1 and 2. Shri J.S. Chandnani for Respondent No.3. -- CORAM : A.S.OKA, J. DATE : 29TH OCTOBER, 2010 P.C.: On 15th October, 2010 submissions were fully heard and the Petition was ordered to be kept today for passing orders. By order dated 15th September, 2010, the parties were put to notice that the petition will be decided finally at the admission stage. 2. The Petitioner is a co-operative Bank which is registered under the Maharashtra Co-operative Societies Act, 1960 ( hereinafter referred to as “the said Act”). The challenge in this Writ Petition is to the order dated 23rd December, 2009 passed by the learned Divisional Joint Registrar, Konkan Division, New Mumbai. 3. According to the case of the Petitioner, one Ashok Narwani 2 wp-4528.10 was the owner of the flat in dispute and against the security of the said flat, certain loan was advanced by the Petitioner to the said Ashok Narwani. A Recovery Certificate under Section 101 of the said Act was issued against the said Ashok on an application made by the Petitioner. On 29th January, 2009, a notice of attachment was issued by the Special Recovery Officer in the proceedings for recovery on the basis of the recovery certificate under Section 101 of the said Act. A Revision Application under Section 154 of the said Act was filed by the 3rd Respondent who is wife of the borrower for challenging the notice dated 29th January, 2009. By the impugned order, the said notice has been set aside. 4. The submission of the learned counsel appearing for the Petitioner is that by the notice dated 29th January, 2009, there was no attachment levied by the Special Recovery Officer. The notice was issued calling upon the borrower to pay the outstanding amount failing which the amount will have to be recovered by way of attachment of the property. He submitted that there was no order passed by the Special Recovery Officer and therefore, the Revision Application itself was not maintainable. He submitted that the remedies are available to the 3rd Respondent to object to an attachment under the Rules. He submitted that the impugned order is illegal. 5. The learned counsel appearing for the 3rd Respondent submitted that the Revision Application was maintainable inasmuch as the 3 wp-4528.10 Revisional Authority had power to call for the record of any proceedings for satisfying itself about the legality and propriety thereof and therefore, the power under Section 154 of the said Act has been rightly exercised. He has placed reliance on a decision of the Apex Court in the case of Haribhau Tandale v. Industrial Co-operation Association Limited & Others ( 1997 (2) BCR 636). He submitted that the Revision Application was maintainable and in fact suo moto power has been exercised by the Divisional Joint Registrar considering the illegality committed by the Special Recovery Officer. 6. It must be noted here that today after the dictation of the judgment was commenced, the learned counsel appearing for the 3rd Respondent tried to submit that the objections to the show cause notice of the attachment were raised by the Petitioner which have been decided by the Special Recovery Officer. 7. I have given careful consideration to the submissions. Perusal of the prayers made by the 3rd Respondent in the application purportedly made by the 3rd Respondent under Section 154 of the said Act shows that the challenge was to the notice dated 29th January, 2009. In fact, in the prayer clause (A) of the Revision Application, the said notice has been described as a “Notice Before Attachment”. The averments made in the Revision Application are regarding matrimonial dispute between the 3rd Respondent and her husband Ashok who is the borrower. It is contended 4 wp-4528.10 in the Revision Application that the 3rd Respondent was residing in the suit premises along with her children for 20 years and was paying the dues in respect of the flat. Thus, the 3rd Respondent has herself stated in her Revision Application that the challenge was to the “Notice Before Attachment”. Perusal of the notice dated 29th January, 2009 shows that by the said notice, the borrower was called upon to pay the amount in terms of the recovery certificate, failing which, the Special Recovery Officer will be constrained to recover payment of dues by attachment and the sale of the property. 8. Thus, on her own showing when the Revision Application was filed, there was no action of attachment taken by the Special Recovery Officer. If at all the attachment is levied, a remedy is available to the 3rd Respondent to raise an objection in terms of Sub-rule 19 of Rule 107 of the Maharashtra Co-operative Societies Rules, 1961 ( hereinafter referred to as “the said Rules” ). As stated earlier, after the dictation of the judgment was commenced, it was tried to be pointed out by the learned counsel appearing for the 3rd Respondent that the objections to the said show cause notice of the attachment have been decided by the Special Recovery Officer. There is no such averment made in the Revision Application preferred by the 3rd Respondent. Even assuming that there is such an order, remedy is always available to the 3rd Respondent to challenge the said order in accordance with law. 5 wp-4528.10 9. Sub-section (1) of Section 154 of the said Act reads thus:- “154. Revisionary powers of State Government and Registrar :- (1) The State Government or the Registrar, suo motu or on an application, may call for and examine the record of any inquiry or proceedings of any matter, other than those referred to in sub- section (9) of section 149, where any decision or order has been passed by any subordinate officer, and no appeal lies against such decision or order, for the purpose of satisfying themselves as to the legality or propriety of any such decision or order, and as to the regularity of such proceedings. If in any case, it appears to the State Government, or the Registrar, that any decision or order so called for should be modified, annulled or reversed, the State Government or the Registrar, as the case may be, may, after giving the person affected thereby an opportunity of being heard, pass such orders thereon as to it or him may seem just.” 10. The power under the said provision is to call for and examine the record of any inquiry or proceedings of any matter where any decision or order has been passed by any subordinate officer. In the present case, there was no decision or order passed by the Special Recovery Officer and the notice dated 29th January, 2009 was only a notice of demand calling upon the borrower to make payment as per the Recovery Certificate. The notice contains a warning that if the amount was not paid within the stipulated time, the amount will be recovered by attachment of the property. Thus there was no decision or order which was challenged in the Revision Application. The decision of the Apex Court relied upon by the learned counsel appearing for the 3rd Respondent does not lay down a 6 wp-4528.10 proposition of law that a proceeding can be quashed by exercising the powers under Sub-section (1) of Section 154 of the said Act though there is no decision or order. 12. There was no occasion for the Revisional Authority to entertain the Revision Application only against the show cause notice. Only on this ground, the impugned order deserves to be quashed and set aside. There was no occasion for the Revisional Authority to decide the issue as regards the rights claimed by the 3rd Respondent in respect of the flat in the Revision Application which was not maintainable. If the attachment is already levied and if the objections to the attachment are decided by the Special Recovery Officer, a remedy is available to the 3rd Respondent. The learned counsel appearing for the 3rd Respondent stated that the objections to the show cause notice have been decided. It is for the 3rd Respondent to challenge any such order of the Special Recovery Officer. 13. Hence, the Writ Petition must succeed and I pass the following order :- (a) The Writ Petition is allowed. (b) The impugned judgment and order dated 23rd December, 2009 is quashed and set aside and the Revision Application being Misc. Application No.1 of 7 wp-4528.10 2009 stands dismissed. (c) All the objections of the 3rd Respondent to the attachment, if levied, are kept open. (d) No adjudication has been made by this Court as regards the rights claimed by the 3rd Respondent and all the contentions of both the parties on the said aspect are kept open. (e) There will be no orders as to costs. (A.S.OKA, J)