1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Misc. Civil Application [review] No.1463 of 2008 With Misc. Civil Application [review] No.109 of 2008 IN Writ Petition No.3222 of 2007 [decided] Misc. Civil Application [review] No.1463 of 2008 : Maharashtra State Co-operative Bank Ltd., having Registration No. 359.1925, having its Regional Office at Tilak Putla Mahal, Nagpur, through its Manager. .... Petitioner. Versus 1. State of Maharashtra, through its Secretary, Department of Co-operation, Mantralaya, Mumbai. 2. The Collector/District Magistrate, Yavatmal, Taluka & Distt. Yavatmal. 3. Sudhakarrao Naik Sahakari Sakhar Karkhana Ltd., at and Post Gunj Sawana, Tq. Mohagaon, through its Liquidator Shri G.K. Sarote. ..... Respondents. APPLICANT : Shri Tatyasaheb Kore Warna Sahakri Sakhar Karkhana Ltd. Warnanagar, Taluka Panhala, District Kolhapur, 2 through its Managing Director. ***** Mr. A.S. Chandurkar, Adv., for applicant. Mr. A.B. Patil, Adv., for original petitioner. Mr. A.D. Sonak, Asstt. Govt. Pleader for Respondent Nos. 1 and 2. Mr. S.D. Chopde, Adv., for respondent no.3. ***** Misc. Civil Application [review] No.109 of 2008 : Sudhakarrao Naik Sahakari Sakhar Kharkhana Ltd., at Post Gunj Sawana, Tq. Mahagaon, Distt. Yavatmal, through its Liquidator – Shri G.K. Sorate. .... Applicant. Versus 1. State of Maharashtra, through its Secretary, Department of Co-operation, Mantralaya, Mumbai. 2. The Collector/District Magistrate, Yavatmal, Taluka & Distt. Yavatmal. 3. Maharashtra State Co-operative Bank Ltd., having Registration No.359/1925, having its Regional Office at Tilak Putla Mahal, Nagpur, through its Manager. ..... Respondents. ***** Mr. S.D. Chopde, Adv., for applicant. 3 Mr. A.D. Sonak, Asstt. Govt. Pleader for Respondent Nos. 1 and 2. Mr. A.B. Patil, Adv., for respondent no.3. ***** CORAM : A.H.JOSHI AND R.C.CHAVAN,JJ. Date : 15th December, 2008. O R A L J U D G M E N T [Per A.H. Joshi, J]: 1. Rule in both applications. Rule is made returnable forthwith and is heard by consent. 2. Misc. Civil Application No. 109 of 2008 :- [a] This application is filed by original respondent no.3 in the Writ Petition praying for recalling of order dated 30th October, 2007. [b] Foundation of the prayer is that the Sugar Factory run by the Society under liquidation was let out with the intervention of Govt., and involvement of the Writ Petitioner and Shri Tatyasaheb Kore Warna Sahakari Sakhar Karkhana Ltd. [hereinafter referred to as “TKW-SSKL”, for short] and this fact was not 4 disclosed by the petitioner etc. [c] According to the applicant, the petition was disposed of when Civil Application for certain interlocutory orders had come up for hearing, and the applicant did not have a reasonable and fair opportunity of hearing, and bringing on record entire relevant facts and circumstances. [d] In this background, according to the applicant, the prayer for relief that the property be sold was wholly misconceived, apart that it did not, in any way, protect Writ Petitioner's interest. 3. Misc. Civil Application No. 1463 of 2008:- [a] This application is filed by the applicant - “TKW-SSKL” for a review of the Judgment and Order dated 30th October, 2007. [b] The applicant states that the Govt. of Maharashtra having framed a policy to revive sick co- operative sugar mills under liquidation proposed to 5 auction those for running on lease basis. The Commissioner of Sugar issued an advertisement inviting bids to run the respondent no.3 – The Sudhakarrao Naik Sahakari Sakhar Karkhana Ltd., a sick unit, on lease basis. [c] In response whereto the applicant - “TKW-SSKL” participated in bidding and gave highest offer, and it was permitted to run the respondent no.3 – Karkhana on lease basis. [d] Accordingly, an Agreement of Lease was entered into by the applicant with respondent no.3, and all these steps taken by Commissioner of Co-operation are taken by him with due notice and due involvement of the Writ Petitioner. [e] On 30th October, 2007, while disposing of Writ Petition No.3222 of 2007 filed by the petitioner - Maharashtra State Co-operative Bank Ltd., this Court directed the Collector, Yavatmal, to take all necessary steps under Section 14 of the Securitization & Reconstruction of Financial Assets Act, 2002. The 6 applicant, therefore, states that it being a lessee of the Karkhana, is, thus, adversely affected by the order dated 30th October, 2007, passed by this Court, and prays for recalling the same. 4. Both these applications were initially opposed by original Writ Petitioner. 5. These applications were heard on 12th December, 2008. 6. In the midst of hearing, it had transpired that while Writ Petition No.3222 of 2007 and Civil Application No. 7285 of 2007 therein were heard, certain facts were not disclosed by the Writ Petitioner, which, if disclosed, this Court may not have finally disposed of the petition on that date, , particularly about steps taken by the Commissioner of Co-operation. These steps were, in fact, going to result in attempts of revival of Respondent no.3 as well recovery of a every good part of otherwise a bad debt. 7 7. Learned Advocate for the Writ Petitioner does not dispute that even if entire assets are liquidated barely around ten per cent of actual dues claimed by the Writ Petitioner could be recovered, and it is in this background in which State Govt. appears to have intervened and sought to revive the factory of the Society under liquidation by giving it on long lease by auction, and the offer of “TKW-SSKL”, the applicant in Misc. Civil Application No. 1463 of 2008 was highest. 8. It is an admitted fact that the writ petitioner-Bank was throughout involved in the process of auctioning through the Recovery Officer. Present Writ Petition No.3222 of 2007, however, was affirmed/sworn by the the petitioner – Bank's Manager at Nagpur, and all these collateral facts were not disclosed in the writ petition. 9. In aforesaid background, present applications have come up for hearing. 10. It is an admitted fact that notice of Writ Petition No. 3222 of 2007 was not issued to “TKW-SSKL”, 8 the applicant in Misc. Civil Application No. 1463 of 2008, as it was not arrayed as respondent, and this was done by the petitioner despite knowledge of collateral facts – developments, and involvement of interest of said applicant. 11. Moreover, Writ Petitioner even did not prevent the investments etc., by the “TKW-SSKL”. 12. Even the Civil Application No. 7285 of 2007 was taken out without disclosing all these facts. 13. On 12th December, 2008, this Court had, therefore, adjourned the hearing for enabling the Writ Petitioner to consider whether it would concede for recalling the order disposing of the Writ Petition and for re-hearing of the Writ Petition No. 3222 of 2007 on merit, and according to law, if necessary upon disclosure of all these facts by amending the Writ Petition, and by adding TKWSSK Ltd. as respondent. 14. Today, learned Adv. Mr. A.B. Patil, after taking instructions from the Writ Petitioner-Bank, states that the 9 Bank is ready and willing for re-hearing of the Writ Petition by conceding for recalling the order of disposal thereof passed by this Court on 30th October, 2008. Mr. Patil agrees that though the order has been passed below Civil Application No. 7285 of 2007, the order disposing of the Civil Application will be automatically recalled, and the Civil Application would be heard with the writ petition. 15. Learned Adv. Mr. A.B. Patil for the Writ Petitioner submits that substantial amount, which had come in the hands of the Liquidator towards premium of lease, is substantially spent by him, as is apparent from the affidavit filed by him. In view that the Writ Petition will be re-opened for hearing, the Liquidator be put under restraint from spending the amount, however, he would be free to remit such amount, as permissible in law, to the Bank, who is a secured creditor. 16. In view of the statement of Adv. Mr. A.B. Patil and the applicants in both applications agreeing for revival, hearing and disposal of the Writ Petition No. 3222 of 2007 on recalling the order dated 30th October, 2007, we pass the following order :- 10 [a] Misc. Civil Application Nos. 1463 of 2008 and 109 of 2008 are partly allowed. [b] Rule is made absolute and the order passed by this Court on 30th October, 2007 in Writ Petition No. 3222 of 2007 disposing of the Writ Petition is recalled. [c] Writ Petition be listed for admission-hearing and for disposal according to law, when circulated. [d] Civil Application No.7285 of 2007 shall revive. [e] Till the petition is taken up for hearing, Liquidator shall be free to remit such amount out of proceeds in his hands, or which may come to his hands, as permissible by law, to the petitioner-Bank, however, he shall not, without orders from the Court hearing the Writ Petition, deal with the amount in his hands received either on account of lease amount, or recovery, whatsoever. 17. In the circumstances, parties are directed to bear own costs. JUDGE JUDGE -0-0-0-0- |hedau| 11