1 wp4159-11j rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION WRIT PETITION NO. 4159 OF 2011 Miss Gauri Prashant Shahane through her natural guardian Father Mr. Prashant Shahane .. Petitioner V/s. Arun B. Gaikwad Special Recovery Officer & Sales Officer, Malad Sahakari Bank Ltd. & Ors. .. Respondents ..... Mr. S. S. Patwardhan for the petitioner. Mr. Bhupesh Samant for respondent No.2. Mr. S. D. Rayrikar, AGP for respondent No.3. ..... CORAM : A.S.OKA, J. DATE : SEPTEMBER 12, 2011. ORAL JUDGMENT : Considering the narrow controversy involved in the petition, the same is taken up for final disposal. 2. The second respondent – Bank obtained a Recovery Certificate under Section 101 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as “the said Act”). In the execution of the Recovery Certificate, a flat being flat No. A 204 situated at Veena Classic Co-operative Housing Society, Iraniwadi, Road No.3, Kandivali (West) Mumbai was attached 2 wp4159-11j and was put to sale. The present petitioner who is a minor raised an objection to the attachment in terms of Sub Rule 19 of Rule 107 of the Maharashtra Co-operative Societies Rules, 1961 (hereinafter referred to as “the said Rules”). After considering the objections, the first respondent Special Recovery Officer passed an order rejecting the objection. The Special Recovery Officer observed thus: “ I have gone through the aforesaid Objections, reply and rejoinder. It appears that the objectioner can have 25% share in the aforesaid flat in view of her being legal heir of Smt. Jayshree Shahane. However, in view of the specific objection of the Bank regarding proof of the deceased mother of the objectioner, such 25% share can be considered only after verifying the factual position. The defaulter Mr. Prashant Shahne has 75 % share in the above flat. As on today huge amount is due from defaulter for which no arrangement has been made by him. The aforesaid flat is already put for public auction on 11th March, 2011. The defaulter is guardian and father of the Objectioner who is minor. It cannot be ruled out that the aforesaid Objection has been filed by defaulter to obstruct the execution proceedings as alleged by the bank. In any case the interest of the Objectioner can be secured by providing for share in sale proceeds of the flat. For protecting her 25% share if the bank is denied recovery action against the flat, the same would result in blocking recovery of more public money than the value of share of the Objectioner. Therefore, the balance of convenience is in favour of the Bank. Therefore the present Objection is rejected. It is however provided that in case the attached flat is sold in public auction, the share of the objectioner will be kept separately and the objectioner will be entitled to apply for getting the same, subject to her furnishing necessary proof regarding the ownership or right of her deceased mother and her inheritents.” 3 wp4159-11j 3. A Revision Application was preferred by the petitioner under Section 154 of the said Act for challenging the order of the first respondent. The Revision Application has been dismissed by the impugned order by holding that it is not necessary to prove the ownership of mother of the petitioner. The Revisional Authority observed that the auction of the said flat can be carried out and 75% share in the price will go to the second respondent- Bank, while 25% shall be paid over to the petitioner. 4. The learned counsel appearing for the petitioner submitted that the petitioner has established that she has an undivided share in the flat subject matter of attachment and after finding that the petitioner has an undivided share, the Authorities under the said Act cannot compel the petitioner to accept money in terms of her share. The learned counsel appearing for the second respondent submitted that the petitioner has been set up by her father who is the guarantor of the second respondent Bank against whom the Recovery Certificate has been issued. His submission is that though the petitioner is claiming right, title and interest in the said flat by inheritance, she has not placed on record letters of administration obtained from the competent Court. He submitted that under the impugned order, the petitioner has been adequately protected. 4 wp4159-11j 5. I have given careful consideration to the submissions. The objection raised to the attachment by the petitioner was on the ground that the said flat was purchased by the petitioner's father and mother jointly and on the demise of the mother, the share of the mother has devolved on the petitioner under the Law of Succession. 6. It is not the case of the first and second respondents that the petitioner is liable to satisfy the Recovery Certificate either as a borrower or a guarantor. Thus, it follows that if the petitioner has an undivided share in the said flat, her undivided share cannot be sold without her consent. However, the perusal of the impugned orders shows that there is no finding recorded by the Special Recovery Officer or the Revisional Authority regarding the existence of undivided share claimed by the petitioner. While deciding the objection to the attachment, the Special Recovery Officer ought to have decided the issue whether the petitioner is entitled to claim undivided share in the flat. The Revisional Authority has observed that it is not necessary for the petitioner to prove the joint ownership of her mother. 7. Under Sub Rule 19 of Rule 107 of the said Rules, the first respondent was under an obligation to investigate the claim or objection raised by the petitioner and to dispose of the same on 5 wp4159-11j merits. Only in the event, if the first respondent finds that the claim or objection is frivolous, it is not necessary to make any investigation/adjudication. In the present case, it is obvious that the claim or objection cannot be said to be frivolous and, therefore, the first respondent was duty bound to make investigation as contemplated by the Sub Rule. As stated earlier, the issue whether the petitioner can claim undivided share has not been decided by the first respondent. Therefore, the only option available to this Court is to send back this matter to the Special Recovery Officer. 8. Hence, I pass the following order: :: O R D E R :: i. The impugned orders are quashed and set aside. ii. The first respondent is directed to decide the objection filed by the petitioner in accordance with the law by making proper investigation as contemplated by Clause (a) of Sub Rule 19 of Rule 107 of the said Rules. iii. The first respondent shall pass a fresh order after giving an opportunity of being heard to the 6 wp4159-11j parties concerned, within a period of three months from the date on which an authenticated copy of the Judgment is produced before him. iv. All contentions of the petitioner and second respondent on merits are kept open. v. Petition is partly allowed on the above terms with no orders as to costs. (A.S.OKA, J.)