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6887.14wp etc

15. In order to highlight his submissions on the entitlement of the Society to recover additional amounts by way of costs, compensatory costs, travelling allowance, litigation expenses, etc., he has relied upon the following case laws, and while referring to few paragraphs from these judgments, he has submitted that the Society was required to spend huge amount for recovering its own dues and therefore, by applying the analogy of the principles laid down in the judgments, the additional amounts in the nature of compensatory costs and other expenses need to be awarded to the Society. He has relied on the following judgments :-

17. Advocate Mr Sanket Kulkarni, learned counsel for the legal representatives of the original borrower (petitioners in Writ Petition No.9663/2014 and respondent Nos.3 to 5 in Writ Petition No.6887/2014) strongly opposed the contentions raised by learned counsel for the Society. His primary contention for opposing the petition filed by the Society (Writ Petition No.6887/2014) is that, when the impugned order passed by the Divisional Joint Registrar records categorical findings about irregularity/illegality in the auction sale, there is no question of ordering any other recovery against the legal representatives of the borrower. He has vehemently submitted that the borrowers have paid the entire amount of outstanding dues and the proclamation of re-auction sale dated 27/12/2012 is itself set aside by the Divisional Joint Registrar and therefore, there is no question of even directing payment of surcharge. He has submitted that, although the impugned order observes that the Society is entitled to approach 6887.14wp etc the appropriate forum/Court for seeking recovery of all the additional amounts in the nature of costs, litigation expenses, travelling expenses and other amounts, the same cannot be recovered by way of instant petition. By inviting attention to the prayer clause in Writ Petition No.6887/2014, he vehemently submitted that there is no prayer for recovery of any amounts in this petition and the only prayer is to quash and set aside the order dated 20/05/2014, passed by the Divisional Joint Registrar. He, therefore, would submit that this petition under Article 227 of the Constitution of India cannot be treated to be in the nature of civil suit for recovery and the Society cannot claim any relief beyond scope of Article 227 of the Constitution of India.

22. Although the parties have advanced their elaborated arguments, the controversy revolves around the entitlement of the Society to claim any amount over and above the recovery certificate. It is pertinent to note that the Society has claimed its entitlement for amount for costs/litigation expenses, future interest, travelling 6887.14wp etc expenses, etc. as stated in paragraph No.29 of Writ Petition No.6887/2014, however, the prayer clause contains prayer about challenge to the impugned order only. There is no prayer seeking award of any amounts towards compensation or costs or litigation expenses as orally claimed.

23. While narrating the sequence of events and the background facts of the instant petitions, it is pointed out that the Society and the legal representatives of the borrower have contested a series of litigations involving challenge to the recovery certificate under Section 101 of the MCS Act, auction sale, maintainability of proceedings, etc. It cannot be forgotten that the proceedings were contested by both the sides. The orders passed in these litigations also show that there were certain irregularities and illegalities on the part of both the sides, and accordingly, the orders were passed in favour of either of the parties at various stages. The recovery certificate issued against borrowers were found to be erroneous and the legal representatives were required to initiate proceedings and the Society was also required to contest the litigations for recovering its own debts. In these petitions under Article 227 of the Constitution of India, the illegality of the impugned order passed by the Divisional Joint 6887.14wp etc Registrar is required to be examined. Even the challenge in Writ Petition No. 9663/2014 is limited to the direction to pay surcharge and consequent direction for release of the land. As such, the scope of these writ petitions is limited to examine the challenge to the impugned award and need not be enhanced to delve deep into area of calculating the amount of compensation or costs to be awarded. It is pertinent to note that, although learned counsel for the Society has referred to various provisions on various Statutes dealing with award of costs in MCS Act, CPC and Civil Manual, however, apart from the chart mentioned in paragraph No.29 in Writ Petition No.6887/2014, there is no material in the nature of evidence to establish these entitlements. Although it may be true that the Society was required to contest series of litigations for the purposes of recovering its own dues, most crucial issue arises, as to whether while entertaining the petition under Article 227 of the Constitution of India, claim for costs, which is not even prayed, need to be granted. Although the learned counsel for the Society has relied upon various case laws as mentioned above, however, none of the judgments deal precisely with the issue of award of costs, litigation expenses for recovery under Section 107 of the MCS Act, while deciding the petition under Article 227 of the Constitution of India. The judgments relied upon by the learned 6887.14wp etc counsel for the Society deal with general principles of law with respect to award of costs, however, it has to be noted that principles related to award of general damages while deciding the civil suit need not be applied while deciding the petition under Article 227 of the Constitution of India, which raises challenge only to the impugned order. It is also crucial to note that the provisions with respect to award of costs can be invoked by successful party at any given case. In the instant cases, the impugned order is passed in the revision application which is filed by the legal representatives of the borrower, which is allowed and while raising challenge to this order, the Society has claimed entitlement for award of costs. In the peculiar facts of the instant cases, and considering the entire contentions, I am of the considered view that the claim raised by the Society for award of costs, litigation expenses, travelling expenses, etc, is unsustainable.