Bombay High Court
Rashid Khudadad Khan And Anr vs Sangli Sahakari Bank Ltd. And Ors on 15 February, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:7547-DB
901-wp-1744-2020.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1744 OF 2020
Digitally
signed by
SHABNOOR
SHABNOOR AYUB
AYUB PATHAN
PATHAN Date:
2024.02.15
Rashid Khudadad Khan & Anr ... Petitioners
17:40:55
+0530
V/s.
Sangli Sahakari Bank Ltd. & Ors ... Respondents
Mr. Subhash Bane with Ms. Neha Bane, for Petitioners.
Mr. Ashish Dubey, for Applicant.
CORAM : AMIT BORKAR, J.
DATED : FEBRUARY 15, 2024
P.C.:
1. The petitioners are essentially challenging an order passed by the Chief Metropolitan Magistrate in exercise of power under Rule 107 of the Maharashtra Cooperative Societies Rules, 1961.
2. The proceedings under Rule 107 of the Maharashtra Cooperative Societies Rules, 1961 are initiated by the respondent/ bank based on certificate issued by the Assistant Registrar under Section 101 of the Maharashtra Cooperative Societies Act, 1960. Under the scheme of Act, the Special Recovery Officer is empowered under Section 156 of the Act to execute the certificate. The powers of the Special Recovery Officer are enumerated under Rule 107 of the Maharashtra Cooperative Societies Rules, 1961. If the property is not attached by the bank in whose favour certificate 1 ::: Uploaded on - 15/02/2024 ::: Downloaded on - 28/02/2024 08:44:42 ::: 901-wp-1744-2020.doc under Section 101 of the Maharashtra Cooperative Societies Act, 1960 is issued, it is mandatory that such bank shall attach the property in exercise of power under Rule 11 of the Maharashtra Cooperative Societies Rules, 1961. Once, the property is attached before holding auction, it is for the Special Recovery Officer to request the Chief Metropolitan Magistrate to issue an order of handing over the possession from the borrower or against whom certificate under Section 101 is issued.
3. Amendment of Rule 107 of the Maharashtra Cooperative Societies, Rules 1961 in the form of Clause (d-1) (vi) was necessitated because the auction purchaser after completion of the auction proceeding, it was the experience of the societies/banks and the Legislature that even after entire payment made by the auction purchaser, there was delay in handing over the possession to obviate such contingency sub-Rule (d-1) of Rule under Rule 107 of the Maharashtra Cooperative Societies Rules, 1961 has been introduced. It is, therefore, necessary that the Chief Metropolitan Magistrate while exercising power under clause (d-1) is obligated to issue the possession warrant based on the satisfaction that either certificate under Section 101 of the MCS Act or the award under Section 91 of the Maharashtra Cooperative Societies Act, 1960 is issued in favour of bank seeking possession. Therefore, in the facts of the case, it is not in dispute that the petitioner has not paid recoverable dues contained in certificate issued under Section 101 of the Maharashtra Cooperative Societies Act, 1960. Sub- Section (3) of Section 101 confers status of conclusive proof as regards contains of certificate under Section 101 and, therefore, 2 ::: Uploaded on - 15/02/2024 ::: Downloaded on - 28/02/2024 08:44:42 ::: 901-wp-1744-2020.doc the Chief Metropolitan Magistrate has rightly entertained proceedings for issuance of possession warrant. Hence, no fault can be found with the proceeding initiated before the Chief Metropolitan Magistrate. Therefore, there is no merits in the present writ petition. The writ petition is dismissed. No costs.
4. At this stage, learned Advocate for the petitioner request for stay. Considering the facts that the petitioner has failed to pay the amount; therefore, the request for continuation of stay is rejected.
(AMIT BORKAR, J.) 3 ::: Uploaded on - 15/02/2024 ::: Downloaded on - 28/02/2024 08:44:42 :::