1 wp9329­09 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION WRIT PETITION NO. 9329 OF 2009 Vadgaon Saraf Vyapari Nagari Sahakari Patsanstha Maryadeet & Another .. Petitioner V/s. Rajkumar Hari Gadgil & Ors. .. Respondents ..... Mr. A. M. Kulkarni for the petitioner. Mr. Amit Borkar for respondent Nos.1 & 2. Mr. S. N. Bhosale, AGP for respondent Nos. 4 and 5. ..... CORAM : A.S.OKA, J. DATE : JULY 22, 2011. ORAL JUDGMENT : Heard the leaned counsel appearing for the petitioner and the learned counsel appearing for the first and second respondents. 2. On application made by the petitioner, a recovery certificate under Section 101 of the Maharashtra Co Operative Societies Act, 1960 (hereinafter referred to as “the said Act”) was issued against the first and second respondents. As there was no compliance with the recovery certificate, the mortgaged property was attached and was put to auction. On 12th May, 2008, the property was notified for re­auction. The property was 2 wp9329­09 purchased by the third respondent in the auction. A Revision Application was preferred by respondent Nos.1 and 2 under Section 154 of the said Act for challenging the auction sale which was confirmed on 20th June, 2008. The Revision Application was dismissed by the Revisional Authority on account of non compliance with Sub Section 2(A) of Section 154 of the said Act. The said order was challenged by the first and second respondents by filing Writ Petition No.5056 of 2008. By the judgment and order dated 7th October, 2008, the petition filed by the first and second respondents was partly allowed. Paragraph Nos. 3 and 5 of the Judgment and order passed by this Court on 7th October, 2008 reads thus: “3. In the present case, the challenge of the petitioners is to the auction sale which has taken place. In such a situation, the petitioner would have to comply with Rule 107(13) and (14). The petitioner has not complied with either Rule 107(13) or (14). ..... 5. In my opinion, once the amount has been admittedly reduced to Rs.16,50,000/­, the petitioners will have to deposit Rs.16,50,000/­ and not Rs. 20,00,000/­. In any event, Rs. 7 lacs have already been deposited with the respondent. The petitioner shall deposit the balance amount payable under Rule 107(14) within four weeks from today. If such deposit is made within the stipulated period, the revision shall be entertained on merits.” 3. On 21st October, 2008, the said order was clarified by 3 wp9329­09 substituting Rule 107 (13) instead of Rule 107(14) in paragraph No. 5 of the said order. On 23rd October, 2008, time to deposit the amount in terms of the said order was extended by a further period of six weeks. 4. On 20th December, 2010 i.e. during the pendency of this petition, this Court further clarified the order dated 7th October, 2008. This Court modified paragraph No. 5 of the said order. Clauses 2 and 3 of the said order reads thus: “2. A dispute has arisen whether the petitioner, i.e. The applicant herein, is required to deposit the balance amount payable under Rule 107(14) besides the amount of Rs.9,50,000/­. 3. After hearing the parties for some time, in my view, it is obvious that the sentence “The petitioner shall deposit the balance amount payable under Rule 107(14) within four weeks from today.” has been wrongly been inserted and it should read as “the petitioner shall deposit the balance amount payable as aforesaid within four weeks from today.” 5. According to the case of the first and second respondents, they deposited the requisite amount within the time extended by this Court. The Revision Application was heard a fresh and the same has been allowed by the impugned order. 6. The learned counsel appearing for the petitioner submitted that though under a compromise, the amount 4 wp9329­09 recoverable from the first and second respondents was reduced to Rs.16,50,000/­, as per the compromise, interest was payable on the said amount in case there was a delay in payment of the said amount. He submitted that for making compliance with Sub­Clause (b) of Clause (i) of Sub­Rule 13 of Rule 107 of the Maharashtra Co Operative Societies Rules, 1961 (hereinafter referred to as “the said Rules), the first and second respondents ought to have deposited interest and the costs and expenses of attachment and sale. He submitted that as the said amounts were not deposited, there is no compliance made with the said Sub­Clause (b). Therefore, the Revisional Authority could not have set aside the auction sale. 7. I have carefully considered the submissions. The orders passed by this Court in Writ Petition No.5056 of 2008 have been already reproduced above. If paragraph No. 5 as modified by subsequent order dated 20th December, 2010 is perused, this Court has clearly held that balance amount payable out of Rs.16,50,000/­ shall be deposited by the first and second respondents in compliance with Rule 107(13) within the time stipulated under the said order. This Court also noted that a sum of Rs.9,50,000/­ was payable by the first and second respondents. Thus, as per the order of this Court, the liability of first and second respondents was to deposit only the balance 5 wp9329­09 amount payable out of sum of Rs.16,50,000/­. In the impugned order, the Divisional Joint Registrar held thus: “.... In this respect I relied on the order of Hon'ble High Court and according to the order of Hon'ble High Court the applicant has deposited balance amount of Rs.9.50 lacs and 5% amount of bid amount as contemplated under Rule 107(13). Therefore, it is crystal clear that the society has accepted the said amount as per the order of Hon'ble High Court. Also as per the contentions raised by the applicant regarding the issue of upset price fixed by the authority, it is clear that the property put for auction on the basis of upset price fixed on 29.08.2007. Which shows that according to the order of this authority the portion of the property to the extent of recoverable dues needs to be put for auction a fresh. But on the face of record it is crystal clear that no current upset price is fixed of the portion of the property which society intended for auction.” 9. Thus, in the light of the order of this Court in Writ Petition No.5056 of 2008, the Revisional Authority could not have taken any other view especially when compliance is made with the order of this Court by depositing the balance amount payable as per modified Clause (5) of the order of this Court. 10. Hence, no interference can be made in writ jurisdiction. Writ Petition is accordingly rejected. (A.S.OKA, J.)