SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6061 OF 2008 Mr.Raj Kapoor Baburam Yadav & Anr. ...Petitioners Versus M/s.Janakalyan Sahakari Bank Ltd. & Ors. ...Respondents ...... Mr.M.S.Menon for Petitioners. Mr.Birendra Saraf with Mr.Ashish Kamat and Mr.Nikhil Rajani i/b M/s.V.Deshpande & Co. for Respondent No.1. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. SEPTEMBER 10, 2008. SEPTEMBER 10, 2008. SEPTEMBER 10, 2008. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Saraf waives notice for Respondent No.1, who is the contesting Respondent. For the purpose of present Writ Petition, it is agreed that notice to other Respondents can be dispensed with, as the issue to be addressed in this Petition is only concerning Respondent No.1. : 2 : 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the City Civil Judge, Borivli Division, Dindoshi, Mumbai dated 30th July 2008 in Chamber Summons No.377 of 2008 in S.C.Suit No.1220 of 2008. The said Chamber Summons was essentially filed for amendment of the pleadings by the Plaintiffs. The original Suit filed before the City Civil Court is for the following reliefs: "25. The Plaintiffs therefore pray: a) The auction which is published in the newspaper dated 27.5.2008 for selling the flat of the Plaintiffs is baseless illegal and bad in law give no legal rights to the Defendant. b) Permanent order and injunction of this Hon’ble Court permanently restraining the defendants, their agents and servants by an order and injunction of this Hon’ble Court from in any manner disturbing the possession of Plaintiffs and also selling the same in auction without following the due process of law as directed by the Hon’ble High Court as well as Govt. of Maharashtra. : 3 : c) Pending the hearing and final disposal of the suit the Defendants may be temporarily restrained by an order and injunction of this Hon’ble Court from in any manner disturbing the possession of Plaintiffs and also selling the same in auction without following the due process of law as directed by the Hon’ble High Court as well as Govt. of Maharashtra. (d) Interim and ad-interim relief in the terms of prayer (c) above. (e) Cost of the suit; (f) Any other and further relief as the nature and circumstances of the case may require." 5. During the pendency of the Suit, the Petitioners moved the Chamber Summons for amendment of the Plaint. Besides praying for incorporating statements of facts in the Plaint, the amendment sought further relief which reads thus: "(C) Add the following prayer clauses after prayer clause (b) on page No.10 of the plaint: (bi) That the Hon’ble Court be pleased to declare the 3 recovery certificates bearing reference Nos.(1) 101/JSB/1751/1998 for Rs.21,54,868/- (2) 101/JSB/1752/1998 for Rs.15,65,859/- and (3) 101/JSB/1753/1998 for Rs.2,15,564/- all dated 29th March 2008 respectively issued by Respondent No.1 in favour of the Defendants for the recovery of the alleged loan amounts together with the interest : 4 : thereon being Exhibit "K" to the plaint as illegal, bad in law and ipsi facto null and void and the same cannot be enforced against the suit flat viz.flat No.A/3, building No."A" first floor Mukund Nagar Co-operative Hsg.Society Ltd.Plot No.1 Andheri Kurla Road, Andheri (E) Mumbai - 400059 nor the suit flat can be attached and sold by Respondent No.2 in fulfilment of the total decreetal amount thereunder. (bii) That the Hon’ble Court be pleased to declare that the attachment of the suit flat by Defendants and Respondent No.2 on 13/2/2007 is illegal, bad in law and ipsi facto null and void. (biii) That the Hon’ble Court be pleased to by a mandatory order direct the Respondent No.2 his servants and agents to forthwith remove themselves with all their belongings from the suit flat and restore the possession thereof to the Plaintiffs. (biv) That the Hon’ble Court be pleased to declare that the sale of the suit flat by auction sale under the public notice dated 27/5/2008 is illegal, bad in law and the acceptance of the bid from Defendant No.3 stands cancelled, revoked, terminated and rescinded. (bv) That the Hon’ble Court be pleased to restrain the Defendants and Respondent No.2 their servants and agents from any in any manner proceeding with the auction sale of the suit flat to Respondent No.3 and or any other person/persons. (bvi) That the Hon’ble Court be pleased to restrain the Defendant No.4 their servants and agents by an order of injunction from entertaining any applications/claims for the transfer of the suit flat from Defendants, Respondents 2 and 3 and any other person/persons till the claim of the Plaintiffs are finally adjudicated upon. : 5 : (bvii) That pending the hearing and final disposal of the suit the Hon’ble Court be pleased to order the suspension of recovery certificate Nos.(1) 101/JSB/1751/1998 (2) 101/JSB/1752/1998 and (3) 101/JSB/1753/1998 all dated 29/3/2008 respectively and restrain the Defendants and Respondent No.2 from acting any further in enforcing the same in any manner against the suit flat viz.A/3, building No."A" first floor, Mukund Nagar Co-operative Hsg.Socy.Ltd., plot No.1, Andheri Kurla Road, Andheri (E) Mumbai - 400059. (bviii) That pending the hearing and final disposal of the suit the Hon’ble Court be pleased to restrain the Defendants and Respondent No.2 from and in any manner conducting the auction sale in respect of the suit flat as described in prayer clause (bvii). (bix) That pending the hearing and final disposal of the suit the Hon’ble Court be pleased to restrain the Respondent No.4 from entertaining any applications and claim/s from Respondent Nos.2 and 3 for the transfer of the suit flat and the share certificate in favour of Respondent No.3/or any other person/persons. (bx) That pending the hearing and final disposal of the suit the Hon’ble Court be pleased to direct the Defendants and Respondent No.2 by a mandatory order to restore back the possession of the suit flat as described in prayer clause (bvii) to the Plaintiffs forthwith. (bxi) Ad-interim and interim reliefs in terms of prayer clause (bvii) to (bx) by way of temporary injunction." 6. The Court below has rejected the : 6 : application for amendment preferred by the Petitioners, amongst others, on the ground that if the amendment is to be granted in favour of the Plaintiffs, the City Civil Court will have no jurisdiction to consider the reliefs claimed therein, as it would be subject matter to be addressed before the Cooperative Court/Registrar of Cooperative Societies under the provisions of Maharashtra Co-operative Societies Act. Indeed, the Court below has recorded other reasons for rejecting the Application. In my opinion, the above reason will have to be upheld as it is, for which, the present Writ Petition should fail. 7. To get over this position, Counsel for the Respondent No.1 would contend that even the provisions of Maharashtra Cooperative Societies Rules, 1961 recognises filing of civil Suit praying for reliefs claimed by way of amendment. For that, reliance is placed on Rule 107 (19)(c) of the Rules, 1961. This argument is devoid of merits. Inasmuch as the said provision [Rule 107(19)(c)] postulates that where a claim or an objection is preferred to the party against whom an order is : 7 : made may institute a suit to establish the right, which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be final. 8. In the present case, the Recovery Certificate is not issued against the Petitioners but their father who was the owner in respect of the disputed premises. The father has allegedly gifted the said premises by way of Gift Deed dated 4th December 2006, which, however, is registered on 13th February 2007. Even if this case of the Petitioners is to be accepted as it is, the fact remains that the recovery proceedings against the Petitioners’ father commenced as back as in the year 2002. The Petitioners’ father was admittedly guarantor. The Authorities have proceeded against the Petitioners’ father for recovery of the outstanding dues payable by the original borrower. It is not necessary for this Court to enter into controversy whether the auction is concluded and the suit property has already been sold to third party by the Authorities. That is a matter which : 8 : will have to be addressed in appropriate proceedings. 9. For the time being, suffice it to observe that the further relief claimed by the Petitioners, in no way, seek declaration as to the fact that the Petitioners had become owner of the suit property. In absence of such declaration, no further relief can be granted. Rule 107(19)(c) would come into play only if the Petitioners were to seek declaration that they have right, title and interest in the suit property and that their father has no subsisting right therein. No such declaration has been asked by the Petitioners. 10. Assuming that the Petitioners were to ask for declaration that they have become owner in the suit property, that Suit would obviously not lie before the City Civil Court for want of pecuniary jurisdiction. 11. Thus understood, the relief claimed by the Petitioners by way of amendment, would be governed by the procedure provided under the Maharashtra : 9 : Cooperative Societies Act and Rules framed thereunder, which is the view taken by the Trial Court. 12. Having realised this position, Counsel for the Petitioners fairly submits that in that case, the Petitioners may take out necessary application before the Trial Court for withdrawal of the present Suit so as to file a fresh Suit seeking appropriate reliefs as may be advised. 13. Accordingly, this petition is disposed of with liberty to the Petitioners to take out such application as may be advised before the Trial Court for withdrawal of the Suit so as to pursue suitable remedy as may be permissible by law. All questions in that behalf are left open. A.M.KHANWILKAR, J.