1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8222 OF 2009. 1) Sau.Harshala Pravin Raut & Ors. - PETITIONERS VERSUS 1) The Rahuri Peoples Co-op.Bank Ltd. Rahuri and Ors. - RESPONDENTS ***** Mr.VS Badakh, Advocate for Petitioners; Mr.RR Karpe, Adv. for Resp.No.1; ----- CORAM : K.U.CHANDIWAL,J. DATE : 7th October,2010. PER COURT: 1) Heard. 2) Reply is tendered by Mr.Karpe, learned Counsel appearing for Respondent No.1-Bank, copy of which is received by counsel for petitioner. Mr.Karpe informs, during pendency of the proceedings before the Cooperative Court at Shrirampur, the property, which is referred in para 5 of the reply, is alienated, which is a fraud played by the Respondent No.2/borrower, alienating the property to his wife and his son aged 3 years. 2 3) Respondent No.2 – Pravin obtained financial facility from the cooperative bank, having entered into mortgage of several properties, as is referred in para 7 of the dispute filed by the Respondent No.1-Bank. The Respondent/Bank moved the learned Judge, Cooperative Court for attachment of the property, by application (Exhibit-6); and the learned Judge has attached the property bearing Gut No.386/2- A/1/2 situated at Rahuri (Bk.) village, under the pretext that the principal borrower is to alienate the property. 4) It was brought to the notice of the learned Judge subsequently that, indeed prior to said attachment of the property, by virtue of a suit filed by wife and son of Respondent No.2 being RCS No.326/2007, (the plaintiffs) i.e. wife and son of Respondent No.2, indeed received separate share based on the compromise decree dated 9.8.2007. Apparently, by virtue of the dates in the application, which were referred in the order dated 28.3.2008, such directions to attach the property could not have been issued since the property, in terms of compromise arrived at between the parties as reflected in the Compromise decree dated 9.8.2007, has already transferred the hands and reached to the doors of the petitioners, wife and her son. It may be a 3 collusive decree, as Mr. Karpe points, however, this is not a forum to address the controversy. 5) The learned Member of the Maharashtra State Cooperative Appellate Court, Mumbai, Bench Aurangabad, by order dated 2nd May, 2009, dismissed the appeal as it was short of application for condonation of delay. There cannot be any controversy pointing illegality in the order passed by the learned Member, as the challenge to the order below Exh.6 was dated 28.3.2008, while the appeal before the authority was presented on 24.10.2008. There was no application, seeking condonation of delay and consequently, to repeat, no mistake in the order of the learned Member of the Cooperative Appellate Tribunal. 6) Now reverting back to the controversy, as is explicit appearing below Exhibit-6, also below Exh.41 and 52, it was expected of learned Judge to have considered the factual details narrated herein above, which demonstrated that the property was already partitioned in favour of the petitioners well before the orders could be passed in terms of Exhibit-6. 7) In spite of all these odds in favour of Respondent no.1-Bank, power as referred above 4 cannot be obliterated that there was description of the property, which was under lien of the bank. 8) Mr.Karpe submits, by virtue of payment of Rs.6,00,000/- few of the properties are released by the Bank. This may be correct, however, bank’s right to re-attach, even released property, is not taken away, as Mr.Karpe points that filing of the suit between the wife and husband is collusive. 9) With these observations, the order of the learned Judge below Exhibit-6 and rejection of Exhibits- 41 and 52, is set aside. The Bank is at liberty to exhaust the remedies available to it under the law. No costs. (K.U.CHANDIWAL) JUDGE bdv/