-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.5382 of 2007 NM/s Golfadevi Constructions Pvt.Ltd. ..Petitioner vs. Murali Manohar Nagari Patsanstha Maryadit ..Respondent Shri S.M.Oak i/b Shri Sagar Joshi for petitioner. Shri Rakesh R.Bhatkar for respondent. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 15th January, 2008 15th January, 2008 15th January, 2008 P.C. P.C. P.C. 1. This is a petition by the petitioner who is aggrieved by the order dated 3rd July, 2007 in Appeal no. 93 of 2007. The petitioner is the original disputant whereas the appellant before the lower Appellate Court is the original opponent. The petitioner filed a dispute being RTN No.237 of 2006 wherein he had questioned the action of the first respondent society in attaching the immovable property. In fact, a declaration was claimed in the dispute that after attachment and sale of the mortgaged properties there is nothing due and payable by the petitioner to the first respondent and it be declared that there is due and complete discharge of the debt or liability. -2- 2. An application for interim injunction was made to restrain the first respondent from attaching and/or selling the immovable so also movables which are not covered by the mortgage or hypothecation. 3. In that dispute while the application for interim injunction was being considered, the first respondent raised an issue of jurisdiction of the Cooperative Court. The preliminary objection raised was that since the first respondent has in its favour a certificate under sec.101 of the Maharashtra Cooperative Societies Act, 1960, then, all actions in pursuance thereof could not be questioned by resorting to section 91 of the said Act. In other words, whether the dispute under sec.91 would be maintainable to question the recovery certificate or action in pursuance thereof including execution proceedings. 4. That objection was over ruled by the Trial Court on 12th April, 2007. Aggrieved by that order an appeal was preferred by the first respondent society which has been allowed by the impugned judgment. In other words, the -3- objection to maintainability of the dispute has been held. It has also been upheld that the Cooperative Court has no jurisdiction to try and entertain the dispute in question. 5. The petitioner/original disputant is questioning the legality and validity of this judgment. 6. After the matter was argued for some time and attention of the petitioner’s Counsel Shri Oak was invited to Rule 107(19) of the Maharashtra Cooperative Societies Rules, 1961. Shri Oak sought time on the last occasion to take instructions from the petitioners. 7. Shri Oak has today placed reliance upon a decision of Hon’ble Supreme Court in the matter of Patel Roadways Ltd. Vs. Birla Yamaha Ltd. reported in (200)4 S.C.C.91. In my view, it is prima facie doubtful as to whether the said decision could be of any assistance in resolving the controversy. That apart, considering the phraseology of Rule 107(19) of the Maharashtra Cooperative Societies Rules, 1961, in my view, remedy of the petitioner is not to file the subject dispute and question the action of the -4- first respondent. 8. After this opinion was expressed by me Shri Oak requests that the objection which was raised to the attachment and sale by filing the dispute be now referred to the Special Recovery Officer for his decision under Rule 107(19) of the M.C.S.Rules 1961. Shri Oak states that he has been instructed by the petitioner to state that no separate objection would be raised and the petitioner has nothing to add to the pleas that are already incorporated in the dispute application. 9. The learned Counsel for the first respondent has left the matter to Court. In my view, request of Shri Oak deserves acceptance. The Special Recovery Officer concerned to now treat the dispute application and pleas raised therein as objections to the attachment and sale to the immovable property and treating them as such as proceedings under Rule 107(19) of the M.C.S.Rules, 1961, pass appropriate orders sin accordance with law after hearing both sides. It is directed that no coercive measures would be initiated against the respondents for a period of two weeks from today. Needless to -5- state that I have not expressed any opinion on merits of the objections and pleas on merits are kept open. Petition is disposed of. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)