1 W.P.No.1757.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 1757 OF 2010 M/s Sunil Oil Industries (Partnership Firm) High School Road, Pachora, District Jalgaon, Throughits partner Rajendra S/o Radhesham Mor, Age 50 years,Occupation Nil, R/o Rangar Galli, Pachora, Taluka Pachora, District Jalgaon. ... PETITIONER V E R S U S The Pachora Peoples Co-Operative Bank Ltd Pachora,District Jalgoan, Through its Manager. ... RESPONDENT ... Mr. P.M.Shah,Sr. Advocate for the Petitioner. Mr. P.P.Chavan, Advocate for the respondent. CORAM : V.R.KINGAONKAR, J. DATE : 30th APRIL, 2010. ORAL JUDGMENT: 1] Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, the present petition is being heard and finally disposed of at the stage of admission. 2] Though, initially, counsel for the respondent -bank expressed requirement to file reply affidavit, subsequently, Mr. Chavan, learned counsel for the respondent-bank stated that he was ready to argue the matter on merits and no interim relief may be granted. 2 W.P.No.1757.10 Hence, I have heard the learned counsel for both the sides. 3] By this petition, the petitioner challenges the judgment and order dated 14th September, 2009 rendered by the Co-operative Court, Jalgaon in Misc. Application No. 48 of 2007, and judgment and order dated 27.10.2009 rendered by the Co-Operative Appellate Court, Aurangabad in Appeal No. 222 of 2009. By impugned judgments, the application of the petitioner for restoration of possession of the godown, on which respondent-bank has put up lock, during pendency of earlier Dispute No CC/J-384 of 1998, came to be dismissed. 4] It is not necessary to elaborately set out the rival pleadings. Suffice it to say that, the respondent-bank filed the dispute against the petitioner (Dispute No. CCJ 384 of 1998) for recovery of certain amount. In the meanwhile, five agricultural lands, which were mortgaged by the petitioner were attached as per the application filed by the respondent-bank for attachment before judgment. It is undisputed that the said attachment order is still continued and remained in force and those properties are yet not attached. In addition to the said mortgaged property, the goods stored in the godown in question were hypothecated and therefore, respondent-Bank had put up lock to the godown. The respondent-bank submitted an application to the Co-operative Court for sell of the goods stored in the godown by public auction. It appears that on 15th September, 2006, the goods were sold by way of public auction. The amount recovered (Rs.2,86,982/-) was also appropriated. The dispute was decided by the Co-operative Court on 17.10.2007. The final outcome of the decision of 3 W.P.No.1757.10 the Co-operative Court was that, the claim of the bank was found unacceptable due to legal flaws. The dispute was, therefore, dismissed. 5] The respondent-bank preferred appeal, it was also dismissed. It is admitted fact that the respondent bank has filed Writ Petition against such orders of the Co- operative Court and the same is pending. In the meanwhile, the petitioner filed an application dated 12.11.2007 before the Co-operative Court and urged to release possession of the godown in its favour by removal of lock, which was allegedly put by the respondent-bank without following recourse of law. The co-operative Court dismissed the application on the ground that the claim for release of such property could not be entertained because adjudication of the dispute was made earlier and there was no cross objection or cross appeal filed by the petitioner. The Co-operative Appellate Court also confirmed such dismissal of the application on the ground that co-operative Court became Functous Officio and hence respondent-bank could not be directed to re-open the lock and release the possession of the godown in favour of the petitioner. 6] The clinching question is whether the respondent Bank can be permitted to continue with the unlawful possession of the godown though there was no cross appeal or counter claim, preferred by the petitioner in the original dispute. It is important to notice that the godown was not subject matter of attachment before judgment when initial application was filed by the respondent bank under order 38 Rule 5/10 of the Code of Civil Procedure. The five agricultural lands of the petitioner 4 W.P.No.1757.10 were the only properties which were subjected to attachment before judgment of the Co-operative Court. It appears that the respondent-Bank, without obtaining any order from the Co-operative Court straightaway went to the godown and locked the same. It was only thereafter that the goods stored in the godown were sold by way of public auction as per the orders of the Co-operative Court. It is true, no doubt, that the petitioner did not take immediate action by filing counter claim for recovery of possession of the godown in the dispute raised by the bank i.e. Dispute No. 384 of 1998. That does not give license to the respondent-bank to take over the possession of godown. 7] Mr. Chavan, learned counsel would submit that rightly or wrongly the petitioner bank came in possession of the godown and unless appropriate relief is sought by the petitioner within a period of limitation prescribed, it was not permissible to re-claim possession by opening lock of the godown, after the dispute was decided by the Co- operative Court. He argued that the petitioner was not entitled to re-open the entire issue because the co- operative Court had become Functous Officio. He further submitted that in the exercise of extra ordinary jurisdiction available to this Court under Article 226 and 227 of the Constitution of India, the issue may not be decided on merits, when both the Courts have held that the claim of the petitioner is unacceptable. 8] I find it strange and difficult to countenance the submissions of Mr. Chavan. In my opinion, both the Co- operative Courts have utterly failed to properly appreciate the nature of the proceedings which were initiated by the 5 W.P.No.1757.10 petitioner. It is pertinent to note that the application was submitted for removal of the lock, which was put by the bank in earlier dispute. As such, in-fact, it could be termed as proceedings under section 144 of the Code of Civil Procedure. It was not an independent proceeding. As such the Appellate Court committed patent error while treating the application as independent proceedings. The Courts have ample power to set right the wrong which occurred during the pendency of the proceedings. It is improper to say that the error will not be rectified when it was brought to the notice of the Court. The dismissal of the application of the petitioner on a wrong footing that it was separate dispute, is rather improper and therefore the impugned judgments and orders deserve to be interfered with. If at all the respondent -bank was interested in continuing with so-called taking of possession of godown, then at least further orders could have been obtained from the Court. 9] In view of the foregoing discussion, I have no hesitation in holding that the impugned judgments and orders are unsustainable. The restitution ought to have been allowed in the interest of justice. Hence, the petition is allowed. The impugned judgments and orders are set aside. The respondent-bank shall remove the lock, which was put on the godown in question within a period of three weeks and make inventory of the articles in the godown in presence of the petitioner. If the lock is not removed in the given time frame, the petitioner will be at liberty to get it removed under the Police protection. The bank shall pay costs of Rs.10,000/- (Rs.Ten Thousand) to the petitioner. Rule is made absolute accordingly. The petition is disposed of. 6 W.P.No.1757.10 10] The learned Counsel Mr. Chavan submits that effect of this order may be stayed for four weeks. The request is granted subject to depositing of above referred costs, within a period of one week from today. Sd/- ( V.R.KINGAONKAR ) JUDGE MTK