1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR LETTERS PATENT APPEAL NO.368 OF 2010 IN WRIT PETITION NO.2455 OF 1997 (Smt. Keshardevi wd/o Diwansingh Khanuja and others vs. Kantilal w/o Dhanrajji Ostwal and others) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri S.P. Hedaoo, Advocate for appellants. Shri P.C. Madkholkar, Advocate for respondent no.1. -------- CORAM : J.P. DEVADHAR AND A.B. CHAUDHARI, JJ. DATED : SEPTEMBER 21, 2010 In support of the present letters patent appeal, Shri Hedaoo, learned Counsel for the appellants, raised the following two contentions : 1) The proclamation that was said to have been issued on 10/2/1988 fixing the date for auction as 14/3/1988 was changed insofar as date of auction is concerned inasmuch as the date 14/3/1988 was changed to 24/3/1988. According to the learned Counsel, as per Rule 107 (11)(f) - second proviso of 2 the Maharashtra Cooperative Societies Rules, 1961, the change being longer than seven days, a fresh proclamation was required to be issued. That having not been done, there is violation of this provision and, therefore, sale could not have been confirmed. 2) Inviting our attention to ground no. xii of the memo of letters patent appeal, the learned Counsel for the appellants argued that 85% amount required to be deposited by the auction purchaser was not deposited within time and, therefore, sale could not have been confirmed in favour of the auction purchaser. Per contra, Shri Madkholkar, learned Counsel for the respondent no.1, supported the impugned judgment and prayed for dismissal of the appeal. We have heard learned Counsel for the rival parties for quite sometime. Perusal of Rule 107 (11)(f) second proviso of the Maharashtra Cooperative Societies Rules, 1961 shows that 3 requirement of issuance of fresh proclamation of auction in the event of adjournment thereof for a period longer than seven days can be dispensed with, if the defaulter consents to it. In our opinion, the proviso makes a clear-cut provision for dispensing with the requirement. Perusal of the document (Annexure “F” to Civil Application No.527/2010) shows that change in the date of auction was duly notified to defaulter Shri Wasudeo Sambshiv Bokilwar and he had consented to such change without any objection. There is nothing on record to show that the defaulter had objected to the change of date. We thus find that the first contention raised by learned Counsel Shri Hedaoo is without any merit. As regards the second contention, we find that this ground about non payment of 85% amount within time was never raised before the learned Single Judge. It is not possible for us to consider the factual aspect for the first time in the letters patent jurisdiction. Shri Hedaoo, learned Counsel for the appellants, relied on the decisions of the Apex Court in Shilpa Shares and Securities and others vs. 4 National Cooperative Bank Ltd. and others (2007 (4) Mh.L.J. 184) and Manilal Mohanlal Shah and others vs. Sardar Sayed Ahmed Sayed Mahmad and another (AIR 1954 SC 349) to contend that non-payment of the price as required by the Rule would wipe out the sale. The aforesaid judgments have no application in view of the reason given by us that the said ground was never raised before the learned Single Judge. In the result, we find no merit in the letters patent appeal. The same is, therefore, dismissed. JUDGE JUDGE khj