..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.2873 OF 2007 CIVIL WRIT PETITION NO.2873 OF 2007 CIVIL WRIT PETITION NO.2873 OF 2007 Dashrath Radhakrishna Thanage and 2 Ors. ..Petitioners. Versus Versus Versus The Peoples Co-op. Bank Ltd. and 5 Ors. ..Respondents. .. Mr.A.S.Desai, Adv. for the Petitioners. Mr.H.S.Venegaonkar, Adv. for respondent Nos.1 & 4. Mr.S.D.Rayrikar, AGP, for Respondent Nos.5 & 6. .. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : FEBRUARY 26, 2008. DATED : FEBRUARY 26, 2008. DATED : FEBRUARY 26, 2008. [IN CHAMBER, 2:4O PM] P.C.: 1. Heard the learned Advocate for the petitioners, the learned Advocate for respondent Nos.1 & 4 and the learned AGP for the State-Respondent Nos.5 & 6. 2. Respondent No.2 had borrowed Rs.7 lacs from respondent No.1-Bank in the year 1999. As he failed to pay the said loan in time, recovery proceedings were initiated against him by the recovery officer appointed under Section 156 of the Maharashtra Co-operative Societies Act, 1960 (for short "the MCS Act"). Thereafter the recovery certificate under Section 101 of the MCS ..(2).. Act was obtained by the respondent No.1. While obtaining the said loan, agricultural land in Gat No.193 of village Wadholi Taluka-Trimbakeshwar, District-Nashik admeasuring 4 Hectare 98 Are was mortgaged by way of security. The mortgage was registered with the Sub-Registrar’s Nashik Office vide Registration No.2142 of 1999 dated 26th February, 1999 and the borrower and the present petitioners are the parties to the said deed of mortgage. The petitioners and the respondent No.2 borrower are brothers. 3. For execution of the said recovery certificate, respondent No.4 initially attached the mortgaged property and subsequently as the borrower failed to pay the due amount, respondent No.4 proceeded to dispose of the said property and issued notice of sale by public auction which was published in one of the local newspapers by name "Dainik Deshdoot" on 20th April, 2005. Pursuant to the same, the auction was held on 26th April, 2005, but, it appears that on that day the auction sale could not be finalised. Reauction was held on 14th November, 2006 and the mortgaged property ..(3).. was auctioned for Rs.16,05,000/- in favour of respondent No.3. This auction sale was challenged by the petitioners by filing an application under Rule 107(19) of the Maharashtra Co-operative Societies Rules, 1961 (for short "the MCS Rules") and the same was registered as Application No.1 of 2006 before the Special Recovery Officer i.e. respondent No.4. It was contended by the applicants therein, i.e. the present petitioners, that respondent No.2-borrower had only 1/4th share in the auctioned property which was joint property and, therefore, the entire property could not have been auctioned. Respondent No.4 after hearing all the parties concerned, rejected the Application No.1 of 2006 by his order dated 23rd January, 2007. 4. The petitioners challenged the said order passed by respondent No.4 by filing Revision Application under Section 154 of the MCS Act before respondent No.5. By communication dated 12th March, 2007 addressed to the Advocate for the applicants i.e. the present petitioners, the respondent No.5 called upon the petitioners to ..(4).. deposit 50% of the recovery amount so that the Revision Application should be registered and heard on merits. Respondent No.5 referred to Section 154(2A) of the MCS Act and called upon the petitioners to deposit 50% of the amount under recovery. Being aggrieved by the same, the petitioners have preferred this Petition. 5. The petitioners have mainly raised two points in support of their plea that they are not required to deposit any amount. The said two points are : (a) that the petitioners are not the borrowers nor are they the guarantors, hence they cannot be called upon to deposit 50% of the amount; (b) that the deposit of 50% is not applicable when the order impugned arises from an application filed under Rule 107 of the MCS Rules. . Both the above contentions are untenable. Section 154(2A) of the MCS Act reads thus :- "154(2A) 154(2A) 154(2A) : No application for revision shall be entertained against the recovery certificate issued by the Registrar under ..(5).. Section 101 unless the applicant deposits with the concerned society, fifty per cent amount of the total amount of recoverable dues." 6. It is evident that in the instant case, respondent No.4 had initiated proceedings under Section 101 of the MCS Act and recovery certificate was issued under Rule 107 of the MCS Rules. The contention of the petitioners that the application was filed under Rule 107(19) of the MCS Rules and therefore they are not obliged to deposit 50% of the recovery amount, is fallacious. The auction sale has taken place in execution of the recovery certificate issued under Section 101 of the MCS Act read with Rule 107 of the MCS Rules and the said auction sale was challenged by the petitioners. Sub-Section (2A) of Section 154 of the MCS Act opens with the words "No application for recovery shall be entertained unless....". Therefore, it is evident that the Revision Application cannot be entertained unless 50% of the amount is deposited and it is immaterial as to who moves the revision application i.e. the ..(6).. borrower, guarantor or any other aggrieved person. Though the petitioners are not the borrowers, they have brought in question the public auction sale arising from the recovery proceedings initiated under Section 101 of the MCS Act by respondent No.4 and the said challenge came to be turned down by the said authority. Hence the mandatory requirement of 50% of the deposit under Section 154(2A) of the MCS Act is required to be complied with in the revision application filed by the petitioners and no fault could be found in the action of respondent No.5 calling upon the petitioners to comply with the said requirement vide impugned communication dated 12th March, 2007. Hence, the petition is rejected summarily. . If the petitioners deposit the said amount of 50% within a period of four weeks from today, the respondent No.5 is directed to register the revision application and hear and decide the same in accordance with law. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)