1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8640 OF 2009 Rajiv S/o Arvind Nair } Prop. of Midas Enterprises, } Age : 41 Years, Occ. Business } R/o : RH-1, Sector 8, Vashi, } Navi Mumbai. } .... PETITIONER V E R S U S 1. Special Recovery Officer and } Sales Officer, Grade – I, } Office at Deogiri Nagari Sahakari } Bank Ltd., Aurangabad } Arth Complex, Kesharsingpura, } Adalat Road, Aurangabad. } 2. Deogiri Nagari Sahakari Bank Ltd. } Arth Complex, Kesharsingpura, } Adalat Road, Aurangabad. } through its Manager. } .... RESPONDENTS Mr. S.B.Gorde Patil, Advocate for petitioner. Mr. S.K.Kadam, Assistant Govt. Pleader for State. Mr. A.R.Joshi, Advocate for respondent no. 1 & 2. CORAM : P.V.HARDAS & S.V.GANGAPURWALA, JJ. DATE OF JUDGMENT : 27/04/2010 2 ORAL JUDGMENT : ( PER – P.V.HARDAS, J.) 1. Rule. Rule made returnable forthwith. With the consent of the parties, this petition is heard finally at the stage of admission. 2. This is a petition under Article 226 of the Constitution of India, by which the petitioner challenges the notice issued in local news-paper dated 19/11/2009 putting the property of the petitioner to auction for recovery of the amount, which is said to be owed by the petitioner to the respondent – Bank. 3. We need not dilate much on the factual aspect of the case as it would suffice it to state that the respondent – Bank had obtained recovery certificates under Section 101 of the Maharashtra Co-operative Societies Act, 1960 ( For short, ‘ the Act ’ ). The petitioner being aggrieved by the said recovery certificates, had filed Revision under Section 154 of the Act challenging the said recovery certificates. As a mandate of law, an applicant invoking the revisional jurisdiction, is required to deposit certain amount of the recovery certificates. The petitioner had submitted applications seeking exemption from depositing of the said amount which came to be rejected by the revisional authority. The petitioner thus being aggrieved by the aforesaid order, had filed Writ Petition before the learned Single Judge, which also came to be dismissed. In the mean while, thereafter the 3 respondents have issued notice in daily news-paper of auction of the property of the petitioner, which is subject matter of the challenge in the present petition. 4. The principal contention of the petitioner in this petition is that the petitioner had not availed the loans in respect of which the property of the petitioner has been put to auction. The petitioner also states that as he had not availed the said loans, the petitioner could not have been called upon to deposit the amount by the revisional authority. According to us, the aforesaid challenges can not be gone into by this Court in the exercise of the writ jurisdiction as all these are disputed questions of facts. The fact remains that the challenge to the recovery certificates has now terminated and the steps for auction are steps taken pursuant to the issuance of the recovery certificate. 5. The petitioner also contends that the respondents have not followed the procedure which is set out under Rule 107 of the Act dealing with the issuance of the auction notice. We have heard the learned counsel for the petitioner in detail in respect of various objections which the petitioner has taken to the notice of auction. The petitioner also stated before us that the petitioner has submitted objections before the recovery officer and the aforesaid objections are ad-verbatim reproduction in the petition. Since the petitioner has already taken objections before the Recovery Officer and as Mr. Joshi, 4 the learned counsel for respondents states that the aforesaid objections are pending, according to us, it would be appropriate that the objections are decided by the Recovery Officer. 6. In rejoinder affidavit, the petitioner contents that as this petition was initially filed before the learned Single Judge, the learned counsel for the respondent had stated before the learned Single Judge that the objections have been decided. The learned counsel for respondents states that in affidavit the respondents have stated that the aforesaid objections are pending. The statement alleged to have been made by the learned counsel for the respondent is not reflected in the order. It is not open to a party to submit affidavit and contend as to what transpired at the time of hearing before the learned Single Judge which is not reflected in the order. Since it is a disputed question, it can not be decided by us. Suffice it to state that we accept the statement made on behalf of the respondents that the aforesaid objections are pending and the respondents would decide the objections, in accordance with law. 7. We, therefore, allow this petition to the limited extent of directing the respondents to decide the objections of the petitioner, in accordance with law, and communicate the decision thereon to the petitioner before proceeding with the auction, since the petitioner has alternate remedies available in law for challenging the order of the 5 Recovery Officer, if adverse to the interest of the petitioner, we direct that in the event the Recovery Officer rejects the objections of the petitioner, the said order shall not be enforced for the period of 15 days from the date of receipt of the said order to enable the petitioner to avail the alternate remedies available in law. 8. Rule is thus made absolute on the above terms with no order as to costs. The parties may act upon copy of this Judgment duly authenticated by the Court Shirastedar. [ S.V.GANGAPURWALA ] [ P.V.HARDAS ] JUDGE JUDGE knp/WP 8640.2009 ( J )