1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.527 of 2010 WITH Writ Petition No.526 of 2010 Shriram Tyre Works Pvt. Ltd. through its Directors & ors. .. .. Petitioners v/s. The Special Recovery & Sale Officer & ors. .. .. .. Respondents Mr.Amit Borkar for Petitioners. Mr.Sameer S. Tambekar for Res.No.1. Ms.P.S. Cardozo, AGP for Res.No.3. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 12th March, 2010 P.C. : Rule, returnable forthwith. 1.The Petitioners have challenged the auction notice issued pursuant to the recovery certificate obtained by Respondent No.2-Bank. Respondent No.3-Divisional Joint Registrar, Co-operative Societies, Kolhapur Division, Kolhapur in Revision Application No.250 of 2009 filed by the Petitioners, rejected the Application as the Petitioners had not deposited 50% of the recoverable dues under the recovery certificate obtained by 2 Respondent No.2-Bank. 2.It is the Petitioners case that the Petitioners have not challenged the recovery certificate but the notice of auction sale and the order of attachment obtained by Respondent No.2-Bank. These are derivative actions taken consequent upon the recovery certificate obtained by the Bank. 3.In the judgment of Justice Khanwilkar in the case of Greater Bombay Co-operative Bank Ltd. vs. Dhillon P. Shah & ors., 2004 (1) Mh. L.J. 996, it has been held since the year 2004 that for all derivative actions the mandatory requirement of Section 154(2A) of the Maharashtra Co-operative Societies Act would apply and 50% amount of the total dues on the recovery certificate as on that date would have to be deposited. The Petitioners, whilst challenging the impugned order requiring such deposit, have relied upon the order of Justice Marlapalle in the case of Pravin Yashwant Dhanawade in Writ Petition No.810 of 2005, dated 16th March 2005. In that order it has been held that when the Petitioner has challenged the compliance of Rule 107(6) of the Rules and nothing further the scope of the Revision Application is limited. The order of Justice Marlapalle dated 16 th March 2005 has been rendered after the judgment of Justice Khanwilkar. The 3 judgment of Justice Khanwilkar laid down the law with regard to the aforesaid aspect on the date of its pronouncement. The Co-ordinate Court was required to follow that judgment. It appears that the judgment was not brought to the notice of Justice Marlapalle when he passed the order dated 16 th March 2005. The order of Justice Marlapalle is, therefore, to that extent per incuriam. The earlier judgment would have to be followed by the Co-ordinate Court. 4.The Petitioners relied upon the judgment of the Supreme Court in the case of State of Bihar vs. Kalika Kuer @ Kalika Singh & ors., AIR 2003 SC 2443. In that judgment what is the decision per incuriam is set out upon considering in extensio the English and the Indian precedents relating to that aspect. In that case the second Judge did not agree with an earlier judgment. The earlier judgment was stated to be per incuriam. It has been observed that it would be incorrect for a Bench of Co-ordinate jurisdiction considering the question later, not to rely upon and follow the earlier judgment which has a binding effect unless that Judge refers that matter, upon he disagreeing with the judgment, to a larger Bench. In this case, Justice Marlapalle has not disagreed with the judgment of Justice Khanwilkar. He has not referred the point of law to a larger Bench. He has not followed the judgment 4 of Justice Khanwilkar, perhaps because his attention was not drawn to it. It cannot, therefore, be said that the Justice Marlapalle disagreed with the view of Justice Khanwilkar. It cannot, therefore, also be said that he could have given a judgment against the law which was laid down by the judgment of Justice Khanwilkar. His judgment was only per incuriam. Following the judgment of Co-ordinate Bench would, therefore, require to follow the earliest judgment on the issue as that settled the law relating to the aspect decided in the first judgment until, of course, it was set aside by a judgment of the Division Bench. The Supreme Court has observed in the case of Kalika Kuer (supra) that whatever might have been held in the earlier judgment, even if it does not appear to be correct or appears to be against the provisions of any law, it would not be a valid ground to hold that the earlier judgment was rendered per incuriam or that that decision would not be binding on a Bench of Co-ordinate jurisdiction. It is further observed thus:- The earlier judgment may seem to be not correct, yet it will have the binding effect on the later bench of co-ordinate jurisdiction. Hence the Supreme Court observed that if a later Bench does not agree with the earlier judgment, there are only two 5 courses open to it viz. (i) to refer the matter to a larger Bench, or (ii) to follow it. 4.In this case, the second judgment has been rendered contrary to the view expressed in the law laid down in the first judgment. It is thereafter that Justice Bobde in his order dated 19 th July 2005 passed in the case of Shri Pradip Gajananrao Golangade & ors. vs. The Divisional Joint Registrar, Co-op. Societies, Kolhapur Region, Kolhapur & ors. in Writ Petition No.4372 of 2005, has referred the matter to a larger Bench and refused interim relief. The Petition has appeared thereafter for admission from time to time before several Division Benches. It remains undecided. 5.A reading of the orders and notings shows the presence of the Petitioners Advocate, AGP as well as the Advocate for Respondent No.2-Bank therein. None of these Advocates has brought to the notice of the various Division Benches the fact of the reference. None of the Advocates has sought the determination of the question of the reference. The parties have not brought to the notice of the Division Benches the question of law involved which was required to be determined in the Writ Petition. The Writ Petition has remained pending before the Division Bench since 2005 for admission and hearing. 6 6.Mr.Borkar seeks to rely upon the judgment of Justice Marlapalle and the fact of reference to the Division Bench and contends that stay against the impugned order be granted pending the decision of the Division Bench. It must be noted that in the order of reference itself Justice Bobde has refused interim relief as the 50% statutory amount was not deposited. 7.It would be rather improper to rely upon the order of Justice Bobde in the Writ Petition to claim an adjournment or stay of the Writ Petition or to claim not to place reliance upon the first judgment of the learned Single Judge by any other Single Bench of this Court when interim relief was refused in that case also. Of course, as and when the Division Bench of this Court hears Writ Petition No.4372 of 2005 and passes an order thereon, the Single Bench of this Court would be bound by such order. 8.Until that time, the earlier view would have to prevail. 50% of the amount of the total dues on the recovery certificate would have to be deposited by the Petitioners in Respondent No.2-Bank. 9.The Petitioners shall deposit 50% of the total dues recoverable under the recovery certificate obtained by 7 Respondent No.2-Bank within 4 weeks from today, failing which the Writ Petition shall stand dismissed. If the amount is deposited, Respondent No.3-Divisional Joint Registrar, Co-operative Societies, Kolhapur Division, Kolhapur, shall hear the parties and consider the Revision filed by the Petitioners on merits. 10.Both the above Writ Petitions are disposed of and Rule is granted accordingly. 11.No order as to costs. (SMT.ROSHAN DALVI, J.)