RAMCHANDRA MAHADEORAO MAHANKAL Vs. COLLECTOR

JUDGEMENT

(1.) THE two petitioners, Ramchandra son of Mahadeorao Mahankal and Sharadchandra son of Ramchandra Mahankal, seek quashing of a certificate issued by respondent No. 4, the District Deputy Registrar, Co -operative Societies, Nagpur, under Section 137(1) of the Maharashtra Co -operative Societies Act, 1960, in favour of respondent No. 5, the Nagpur District Land Development Bank, Ltd., Nagpur, and as a consequence the sale of Khasra No. 78/1 of village Narayanpur at an auction and purchase by respondent No. 6 Shaliram. The petitioners have also impleaded respondents Nos. 7 to 11 who are said to be subsequent transferees of interest in the property, and respondent No. 12 who is alleged to be a lessee of the field. The petitioners, as members of their joint Hindu family, were share -holders of respondent No. 5 Co -operative Bank originally incorporated under the Co -operative Societies Act, 1912. By virtue of the provisions of the Maharashtra Co -operative Societies Act, 1960, respondent No. 5 Bank is now deemed to be a Society within the meaning of that Act. It is to be deemed a Co -operative Bank and registered as such under the Maharashtra Co -operative Societies Act, 1960.

(2.) THE petitioners, along with one Haribhau who was also a member of their joint Hindu family, borrowed a loan for agricultural purposes and for payment of certain Government dues, from respondent No. 5 Bank against mortgage of their properties. Respondent No. 5 Bank made an advance of Rs. 8,000 and the transaction was witnessed by a duly executed and registered document dated May 11, 1954. The petitioners have filed a copy of that mortgage deed as Annexure 5 to the petition. Under the terms of the mortgage, the loan was to be repaid in 12 equal instalments each of Rs. 1,007 -8 -3. The rate of interest was agreed to be 7 per cent, per annum and there was a clause under which the borrowers were liable to pay interest at the rate of 9 per cent, per annum if the amount was required to be realized compulsorily. There are other terms usually to be found in such transactions of mortgage. It may be mentioned that there is a specific agreement in Clause (7) of the mortgage disabling the mortgagors from alienating the property until full repayment of the loan has been made either by sale, gift, re -mortgage, transfer or theka. There is also a default Clause (9) giving the mortgage bank a right to recover the entire amount due together with interest and other dues by selling the mortgaged property. The mortgagors also agreed to be personally liable in case of a short -fall after the sale of the mortgaged property.

(3.) IT appears that respondent No. 5 Bank had already taken steps and obtained a certificate under Section 137 of the Maharashtra Co -operative Societies Act, and on the basis of that certificate which was apparently for recovery of a sum of Rs. 2,014 -42 P a revenue case (Rev. Case No. 288/115 of 55 -56) was already pending for recovery of the amount from the petitioners pertaining to the instalments due for a prior period. After the decision of the civil Court against the petitioners, respondent No. 5 Bank sent a notice on or about December 21, 1966 to the petitioners calling upon them to pay the amount under the mortgage which had become due. A copy of that notice has been filed and the demand made in this notice is for a sum of Rs. 5,891.26 P. together with penal interest and costs up to date. The amount of Rs. 5,891.26 P. is made up of Rs. 4,800.94 P. as principal and Rs. 990.32 P. as interest. The notice also states that if the amount is not paid, the Bank will be compelled to make recovery as arrears of land revenue as per Section 137 of the Act and that for that purpose an application for revenue recovery certificate will be made to the Deputy Registrar, Co -operative Societies, Nagpur.