1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. LETTERS PATENT APPEAL NO.94 OF 2009. IN WRIT PETITION NO.843 OF 2007. WITH CIVIL APPLICATION NO.5608 OF 2009. Karbhari s/o Nagorao Chavre. ... APPELLANT. VERSUS The State of Maharashtra & ors. ... RESPONDENTS. ... Shri R.T. Nagargoje, Advocate for appellant. Shri K.S. Patil, A.G.P. for R.Nos.1 & 2. ... CORAM : S.B. DESHMUKH AND S.S. SHINDE, JJ. DATE : 12th JUNE, 2009. PER COURT: 1. We heard learned Counsel Shri R.T. Nagargoje who appears for the appellant – applicant and the learned A.G.P. Shri K.S. Patil for R.Nos.1 and 2. The appellant takes an exception to the judgment and order passed by the learned Single Judge of this Court in Writ Petition No.843 of 2007 dated 9.4.2009. The learned Counsel for the appellant has invited our attention to the auction notice, published in Daily Newspaper Sakal dated January 2 20, 2007 (page No.38 of the compilation). This publication shows that the property owned by the petitioner whose status is mentioned as guarantor, was put to auction. Description of the property shows that it is Plot No.24(P), Survey No.8, CTS No.15298, Sheet No.304, Garkheda, Near CADA Office, area 74.625 Sq.ft. The auction was scheduled on 26.2.2007 at 11 a.m. On our query, the learned Counsel for the appellant makes a statement that this auction was stayed by the learned Single Bench in Writ Petition No.843 of 2007 on February 12, 2007. The copy of the said order is marked as “X” for identification purposes and taken on record. It is true that the learned Single Bench of this Court initially was pleased to issue notice returnable in four weeks with ad interim relief in terms of prayer clause (D) in Writ Petition No.843 of 2007 and waiver of notice by the learned A.G.P. On behalf of the State and its authorities has been recorded. The fact remains that the auction sought by the Bank concerned on February 26, 2007 has been stayed by this Court. The Counsel for the petitioner raised two fold 3 contentions. Firstly; according to the learned Counsel for the petitioner, the property owned by the borrower i.e. Respondent no.5 needs to be proceeded for recovery of the amount of loan at the first instance and if loan could not be satisfied, then only the co-operative Bank concerned or the financial institution concerned can take recourse for the recovery of the loan against guarantors’ property. It is not in dispute that the respondent no. 5 is original borrower. The present petitioner - appellant is a guarantor and respondent no.6 is also guarantor. Undisputedly, respondent no.4 is Urban Co-operative Bank registered in view of the provisions of Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the Act of 1960 for short). It seems that the proceedings under Section 101 of the Act of 1960 was initiated against the principal borrower and guarantor for recovery of the loan amount and interest etc. Certificate seems to have been issued by the competent authority for recovery of the specific amount. In view of issuance of 4 the certificate, the Special Recovery Officer initiated proceedings under Rule 107 of the Rules of 1961. Publication of notice, for auction of the property of one of the guarantor i.e. the Present appellant, was a step taken by the Special Recovery Officer in the case on hand. This point was also canvassed before the learned Single Bench that instead of auctioning the property of the appellant first, the property of the principal borrower should be put to auction. The learned Single Bench considered this point in detail. It has been observed by the learned Single Bench that stock from the business of respondent no.5 original borrower had been seized and auctioned and an amount of Rs.20,500/- could be recovered by way of such auction sale. The said amount is not sufficient to satisfy the loan to be recovered from the principal borrower and the guarantors. The learned Single Bench thereafter has considered the submission of the learned Counsel for the present appellant that immovable property i.e. Plot owned by Respondent No.5 should have been auctioned. The learned Counsel for the appellant – petitioner invited 5 out attention to the agreement, the copy of which is at page 31. According to the learned Counsel for the appellant, this is the agreement of sale of the property owned by the principal borrower respondent no.5. Needless to mention, sale and agreement to sale are defined under the provisions of Transfer of Properties Act. The document at page 31 is an agreement on the Bond Paper of Rs.20/-. Agreement does not convey or pass on title regarding immovable property from one person to another person. For transfer of the ownership, pertaining to immovable property, registered document has to be there if property is valued for more than Rs.100/-. In our view, page 31 i.e. Agreement on Bond paper cannot be termed as a sale within the parameters of Section 54 of the Transfer of Properties Act. Agreement of sale under Section 54 of the T.P. Act does not create right, title and interest so far as ownership is concerned. The learned Single Bench has justifiably observed that the said agreement cannot be considered to be a sale deed and, therefore, did not accept the contentions of the learned Counsel for the appellant – petitioner 6 that respondent no.5 is owner of plot allegedly agreed to be purchased by respondent no.5. Second point canvassed by the learned Counsel for the appellant is in respect of proceeding against another guarantor. During the course of the submissions, the learned Counsel for the appellant submits that there are two guarantors and one principal borrower. At the most, the appellant can be fastened with the liability of one-third amount under the certificate i.e. Amount to be recovered in the case in hand. It is not possible to countenance the submission. It is joint and several liability of principal borrower and guarantors. It is the choice of the decree holder to proceed against either principal borrower or the guarantors. We do not find any merit in this Letters Patent Appeal. Letters Patent Appeal stands dismissed along with civil application. No costs. [ S.S. SHINDE, J ] [ S.B. DESHMUKH,J ] ... PLK/*