1 NMS1990.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION kj NOTICE OF MOTION NO.1990 OF 2010 IN SUIT NO.1932 OF 2010 Atulkumar P. Sakhidas ..Plaintiff Vs The Kapol Co-op. Bank Ltd., & Anr. ..Defendants ---- Mr.S.K. Jain i/by R.D.Vora for the plaintiff. Mr.K. M. Sanghani for the defendants. ---- Coram : S.C.DHARMADHIKARI,J Date : 19TH OCTOBER, 2010. PC 1 Pursuant to the order passed on 25.8.2010, the motion was placed before me. At that stage, both sides prayed that issue of jurisdiction be decided as a preliminary issue only on the basis of the allegations and averments in the plaint and on demurer. 2 NMS1990.10.sxw 2 It is in such circumstances that Mr.Sanghani appearing for defendant no.1 argues on the point of jurisdiction. During the course of his argument, he invites my attention to the order of the Assistant Registrar, copy of which is annexed to the paper book at pages-31 to 37. He submits that the Assistant Registrar, Co- operative Society refused a certificate under Section 101 of the Maharashtra Co-operative Societies Act 1960 by his order dated 31.1.1997. That order was challenged in revision before Divisional Joint Registrar, being Revision Application No.266 of 1997. That revision application has been disposed of and the Divisional Joint Registrar while setting aside the order of the Assistant Registrar, remanded the matter back to him. A writ petition was filed in this court to challenge this order of remand but this Court dismissed that writ petition by order dated 3.8.2001. 3 Mr.Sanghani submits that after remand, Assistant Registrar held that he has jurisdiction to grant recovery certificate under Section 101 of the Maharashtra Co-operative Societies Act 1960. That finding on jurisdiction came to be reversed in a revision at the 3 NMS1990.10.sxw instance of the plaintiff by the Divisional Joint Registrar. Aggrieved by the order of the Divisional Joint Registrar, 1st defendant has filed a writ petition in this court which is pending in civil appellate jurisdiction. It is in such circumstances, Mr.Sanghani submits that much would depend upon the outcome of the writ petition filed by the defendant. Therefore, the issue of jurisdiction may be kept alive and pending till the writ petition of the 1st defendant is finally disposed off. Alternatively, the issue of jurisdiction be decided along with other issues. 4 Mr.Jain appearing on behalf of the plaintiff has no objection to this course. Accordingly, it is directed that issue of jurisdiction of this court shall be framed as one of the issue along with other issues, after a written statement is filed by the defendant no.1 which shall be filed within six weeks from today. Therefore, the issue of jurisdiction was to be tried as a preliminary issue would now be tried along with other issues. 5 That leaves the Notice of Motion and it is placed for hearing 4 NMS1990.10.sxw and final disposal before me. That seeks a restraint against the proposed auction of the pledged goods. The plaintiff stated in the affidavit in support that the 1st defendant has given a notice for public auction of the pledged goods. It is clear that the inspection of the pledged goods has been taken. The goods could not be identified as they were stacked one upon the other. The auction of pledged goods if allowed, that would completely take away the right of the plaintiffs in the same. It is brought to my notice by Mr.Jain that in the plaint, serious allegations have been made by the plaintiff. There is a question of accountability of the 1st defendant. That duty of the 1st defendant on account of the relation with the plaintiff has been breached and violated because substantial part of the material has been permitted to be removed under forged signature of the plaintiff. It is alleged that 45 metal sheets have been allowed to be removed and this is an act of collusion between officers of defendant no.1 and one Jitendra, brother of the plaintiff. 6 On the other hand, Mr. Sanghani invites my attention to the 5 NMS1990.10.sxw affidavit in reply and submits that same allegations have been made during the course of the proceedings before the authorities under Co-operative Societies Act. There is no substance in these allegations because the auction of pledged goods is in accordance with the authority given to the 1st defendant under the contract. It is pointed out by the 1st defendant that far from any collusion, the pledged goods have been stored in the warehouse with the knowledge of the plaintiffs and there is no substance in any of the allegations. My attention is invited to the demand notice dated 23.12.1992 and the reply to this demand notice wherein according to the 1st defendant, no issue was raised with regard to the alleged collusion by the bank. It is stated that goods have been allowed to be removed in terms of the understanding between parties. The brother of the plaintiff has also attended the bank along with the plaintiff Therefore, when he and his brother has confirmed the balance of the goods in the warehouse, by signing the confirmation letter, this court should not stay the auction. 7 After having heard both sides and perusing with their 6 NMS1990.10.sxw assistance the relevant material, I am of the opinion that interest of justice would be served if the 1st defendant, without prejudice to the rights and contentions including on the issue of jurisdiction of this Court, is permitted to auction the goods but the sale proceeds from the said auction shall be deposited by the 1st defendant in this court. Prothonotary & Senior Master (O.S) on such deposit, to invest the proceeds/sums in a fixed deposit in a nationalised bank initially for a period of two years and thereafter to abide by further orders of this court. This order is passed without prejudice to the rights and contentions of the parties as well on account of the fact that pledged goods are coated colour steel and lying for considerable period in warehouse. This course of action would be most appropriate and by which no prejudice would be caused to the parties as well. Notice of Motion is disposed of with a direction that 1st defendant is at liberty to auction the goods but the sale proceeds thereof shall thereafter be deposited in this court and to be invested in terms of the aforesaid direction. Needless to say that it is only when the auction is finalized and the approval is granted by the appropriate authorities that the 1st defendant shall 7 NMS1990.10.sxw deposit the sale proceeds in this court. The power of the Competent Authority to take a decision in matters arising out of the public auction shall not be prejudiced or affected by this order. (S.C.DHARMADHIKARI,J)