1 905wp10243-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY spb CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10243 OF 201o Shri Balbhim Cooperative Bank Ltd., Kolhapur, office at 2402/2 ‘A’­Ward, Shivaji Peth, Kolhapur ... Petitioner. (Org.Revn.Applicant) V/s. Special Recovery Officer, Shir Panchganga Nagari Sahakari Bank Ltd., Kolhapur and Ors. ... Respondents. ­­­­ Mr. S.S. Patwardhan for the Petitioner. Mr. Nitin Deshpande for the Respondent No.1. Mr. S.D. Rayrikar, AGP for the Respondent No.3. ­­­­­ CORAM : G.S.GODBOLE, J. DATE : 09th NOVEMBER, 2011. P. C. : 1 Heard Mr. Patwardhan, Advocate appearing for the Petitioner, Mr. Nitin Deshpande, Advocate appearing for the Respondent No.1 and Mr. Rayrikar, learned AGP for the Respondent No.3. 2 By order dated 20th June, 2011 notice was directed to be issued and the notice was to indicate that the Petition will be disposed of on the returnable date. Respondent No.2 is served but has not entered appearance. 2 905wp10243-10.sxw Hence, the Petition is being disposed of finally. 3 Rule. Rule is made returnable forthwith and heard finally by consent of the parties. 4 The Petitioner Bank advanced loan to the Respondent No.2 against the security of immovable property being ½ portion of the eastern side of the Building No.3 in C.S.No. 702 “A” Ward Kolhapur. Respondent No.1 also claims to have advanced loan to the Respondent No.2 against the security of the same property. Special Recovery Officer of Respondent No. 1 Society has attached the property on 23.08.2004 and the notice of that attachment was sent to City Survey Officer and accordingly, an entry was made in the Revenue Record. However, there is nothing to indicate that the Petitioner was informed about the said attachment order either by Respondent No.1 or Respondent No. 2 or by the City Survey Officer. The Petitioner claims that it learnt about the attachment only on 24th June, 2009 and that it was advised to file proceedings under the MLR Code, 1966 before the Superintendent of Records Kolhapur, which was dismissed by order dated 26th October, 2009, by observing that mutation entry made was only a consequence of of the order of attachment and the remedy of the Petitioner Bank was to file appropriate proceedings for challenging the order of attachment dated 23.08.2004. 3 905wp10243-10.sxw 5 In view of this, the Petitioner Bank filed Revision Application No. 215 of 2010 before the Divisional Joint Registrar, Co­operative Societies, Kolhapur since there was delay an Application for condonation of delay was filed which was opposed by the Respondent No.1 and also by Respondent No.2, who disputed the loan transaction claimed by the Petitioner. 6 By the impugned order dated 15.09.2010 learned Divisional Joint Registrar, Kolhapur Division, Kolhapur has dismissed the Application for condonation of delay on the ground that the delay was not of 5 months and 15 days as claimed by the Petitioner but the delay has to be computed from the year 2004 and on the ground that there was no sufficient reasons for condonation of the delay. 7 Aggrieved by this order, the present Writ Petition has been filed. Affidavit in­reply has been filed by the Respondent No.1, who strongly opposed the Writ Petition. 8 I have heard Mr. Patwardhan, appearing for the Petitioner. He submitted that there was absolutely no communication of the attachment order passed in the year 2004 to the Petitioner and the Petitioner learnt about the said Order for the first time on 24th June, 2009. He further 4 905wp10243-10.sxw submitted that instead of immediately filing a Revision Application against the original attachment order, a wrong remedy was adopted by filing the proceedings under the MLR Code, 1966 before the SLR, Kolhpaur which was disposed off on 26.10.2009 and thereafter, because of the administrative delay, there is a delay in filing of the Revision Application which should be considered to be the delay of only 5 months and 15 days. 9 On the other hand, Mr. Deshpande supported the impugned order and vehemently contended that absolutely no explanation for the delay had been given. He submitted that the claim of the Petitioner that the delay is of 5 months and 15 days is ex­facie wrong in as much as the limitation has to be computed from date of the original order of attachment, namely, 23rd August, 2004 and hence, the last date for filing the Revision Application under Section 154 of the MCS Act, would be 22nd October, 2004 and computing this, the delay was of more than 5 years and 8 months. He further submitted that even otherwise, no explanation is given for the delay from 4th November, 2009 till 19th May, 2010. 10 I have considered the submissions. The submission of Mr. Patwardhan that the delay is only of 5 months and 15 days cannot be accepted and Mr. Deshpande is right in his submission that the delay is more than 4 years and 8 months. The limitation will start from the date of 5 905wp10243-10.sxw the order and not from the date of the knowledge of the order. However, one cannot lose sight of the fact that according to the Petitioner the knowledge of the order was firstly received only on 24th June, 2009. Immediately thereafter, the Petitioner Bank filed the proceedings under the MLR Code, 1966 before the SLR, Kolhapur. This was obviously a wrong remedy before a wrong forum. The time which has been spent in prosecuting the said remedy, under a belief that it was a right remedy will have to be excluded by applying the provisions under Section 14 of the Indian Limitation Act, 1963. Similarly, the time from 22nd August, 2004 to 23rd June, 2009 will have to be considered as delay explained in as much as there is nothing to indicate that the Petitioner Bank was either informed about the order of attachment, either by the Respondent No.1 or by the Respondent No.2. That order was intimated to the City Survey Officer and that the entry of mutation was made. This cannot be sufficient to hold that the Petitioner had knowledge of the said order. In so far as the delay after 4th November, 2009 is concerned, the same has also been duly explained; though the explanation may not be very elaborate. It is well settled that while considering the Application for condonation of delay, every day’s delay need not be explained and the Court has to be conscious of the fact that rejection of the Application for condonation of delay would result in denial of an opportunity to a party to have its claim decided on merits. Mr.Deshpande is justified in submitting that the 6 905wp10243-10.sxw delay after 4th November, 2009 is not elaborately explained. However, according to me there is some explanation which has been offered and in the absence of any malafides being shown on the part of the Petitioner that explanation deserves to be accepted. Prejudice, if any, caused to the Respondent No.1 society will have to be compensated by awarding costs. The delay deserves to be condoned subject to the payment of costs of Rs. 5000/­ (Rs.Five thousand) to the Respondent No.1. 11 Hence, I pass the following order. (a) Rule is made absolute in terms of prayer clause (a) and (b) subject to the payment of costs of Rs. 5000/­ to be paid by the Petitioner to the Respondent No.1 within a period of six weeks from today. (b) Respondent No.3 is directed to consider the Revision Application on its own merits without being influenced by any observations made in this order. (G.S.GODBOLE, J.) ....