Judgment 1) Rule, with the consent of the learned Counsel appearing for the parties, except the Respondent Nos. 21 and 22, made returnable forthwith and heard. The Respondent Nos. 21 and 22 are formal parties. 2) The Writ Jurisdiction of this Court under Article 226 and 227 of the Constitution of India is invoked against the order dated 13th December, 2011 passed by the learned Civil Judge, Junior Division, Kankavali, by which order, the application Exhibit-41, filed by the Petitioner, the original Defendant No1, for framing of a preliminary issue as regards the jurisdiction of the Civil Court, came to be rejected. 3) The facts giving rise to the filing of the above Petition can, in brief, be stated thus: The Petitioner herein is the Special Recovery Officer of the Cooperative Bank known as Dr. Annasaheb Chougule Urban Co-operative Bank Ltd. (hereinafter referred to as “the Petitioner Bank”). It appears that one Sattana Pawar had obtained a loan from the said Dr.Annasaheb Chougule Urban Co-operative Bank Ltd. On default being committed, the Petitioner Bank initiated proceedings under Section 101 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as “the said Act”), which culminated in a certificate being issued under the said provision against the borrower Sattana Pawar and the guarantor, who is the Respondent No. 22. For recovery of the amount mentioned in the said certificate, the Petitioner, as a Special Recovery Officer, attached the properties of the Respondent No. 22. Pursuant to the said attachment, a proclamation for auction sale was issued by the Petitioner, which resulted in the Suit being filed by the Respondent Nos. 1 to 20, challenging the said auction sale. It was the case of the Respondent Nos. 1 to 20 that they have not borrowed any loan from the said Bank and therefore, they are not concerned with the recovery proceedings, which have been adopted by the Petitioner Bank. However, since they are affected by the proclamation of auction sale by the Petitioner Bank in respect of the suit properties that they have filed the Suit in question. It is their case that since they have no concern with the Petitioner Bank, their properties i.e. shops purchased by them are not liable for attachment and sale. The Respondents have therefore filed the Suit for restraining the said Bank from auctioning and selling the suit property. It is their case that since they have no concern with the Petitioner Bank, their properties i.e. shops purchased by them are not liable for attachment and sale. The Respondents have therefore filed the Suit for restraining the said Bank from auctioning and selling the suit property. On summons being served upon the Petitioner Bank, it filed its Written Statement, wherein, a plea was taken that since the Petitioner Bank is a Co-operative Bank and the Respondents having filed the Suit in question for perpetual injunction and declaration, without following the mandatory provision of issuance of notice in terms of Section 164 of the said Act the same was not maintainable. The Petitioner, therefore, filed an application Exhibit-41 for framing of a preliminary issue. The said application was founded on Section 162, 163 and 164 of the said Act. It was the case of the Petitioner Bank in the said application that the Suit as filed is not maintainable in terms of Section 163 of the said Act, as the same is filed against the Petitioner, who is having immunity in terms of the said provision, as no Suit can be filed challenging his action. It was further the case of the Petitioner Bank that the mandatory compliance of Section 164 in the matter of issuance of notice has not been done by the Plaintiffs and therefore, the Suit is not maintainable. The Respondent Nos. 1 to 20 i.e. the original Plaintiffs filed their reply to the said application. It was their case that they are neither the members of the Petitioner Bank nor they have anything to do with the recovery proceedings. It was further their case that the claim made in the Suit is not touching the business of the Society and is therefore not one which would come within the ambit of Section 91 of the said Act. It was their case that the Petitioner Bank, taking advantage of the certificate issued under Section 101 of the said Act, is seeking to dispose of the property, which, it is not entitled to do, as the property belongs to third parties. The Trial Court considered the said application Exhibit-41 and, as indicated above, has by the impugned order dated 13th December, 2011, rejected the same. The Trial Court considered the said application Exhibit-41 and, as indicated above, has by the impugned order dated 13th December, 2011, rejected the same. The gist of the reasoning of the Trial Court was that the Suit has been filed by the Plaintiffs to assert their independent civil rights. The Trial Court observed that since the Defendant No. 1 i.e. the Petitioner herein is auctioning a specific property, it was its duty to see whether the said property is belonging to the Defendant No. 3 or not. The Trial Court observed that the Defendant No. 1 seems to be auctioning the property of third parties, who have nothing to do with the loan transaction and therefore, the recovery proceedings. The Trial Court further observed that the claim in the Suit has nothing to do with the business of the Society and that the Plaintiffs are neither borrowers nor guarantors of the Defendant No. 1 Society. Insofar as compliance of Section 164 of the said Act is concerned, the Trial Court observed that in view of the fact that the Suit had to be filed on an urgent basis in view of the proclamation of auction sale of the commercial shops of the Plaintiffs, the notice under Section 164 of the said Act is deemed to have been waived. The Trial Court has further observed that if the Plaintiffs were to issue notice and were to wait for a period of two months as contemplated by Section 164 of the said Act, the Suit would then have been rendered infructuous. The Trial Court, therefore, overruled the objection of the Petitioner on the basis of Section 164 of the said Act. The Trial Court lastly observed that the issuance of notice under Section 164 of the said Act is curable and the Plaintiffs may give notice and claim the benefit of exemption for the period of limitation. The Trial Court, therefore, held that the objection raised on behalf of the Defendant No. 1 at the preliminary stage is not maintainable and the Suit is not one covered under the said Act and accordingly rejected the said application. As indicated above, it is the said order dated 13th December, 2011, which is taken exception to by way of the above Petition. 4) Heard the learned Counsel appearing for the parties. As indicated above, it is the said order dated 13th December, 2011, which is taken exception to by way of the above Petition. 4) Heard the learned Counsel appearing for the parties. The principal contention of the learned Counsel appearing for the Petitioner Shri. Tambekar is that in the absence of notice issued under Section 164 of the said Act, the Suit is not maintainable. The learned Counsel, in support of the said contention, would seek to rely upon the Judgment of a learned Single Judge of this Court in the case of NoorMohd. Shami Shaikh and Anr. vs. Maharashtra Housing and Development Board and Ors. (2014(1) Bom. C. R. 860) and on the Judgment of a Division Bench of this Court in the case of Mohan Meakin Limited vs. The Pravara Sahakari Sakhar Karkhana Ltd. (1987 Mh. L. J. 503). It is the submission of the learned Counsel that compliance of Section 164 of the said Act in the matter of giving notice is mandatory and cannot be waived. The learned Counsel would further contend that if it is the case of the Plaintiffs i.e. the Respondent Nos. 1 to 20 that the property is theirs and is not liable for attachment, then, the remedy for them is provided by Rule 107 (19) of the Maharashtra Co-operative Societies Rules, 1961 (hereinafter referred to as “the said Rules”), where, an objection could be raised to the attachment of the said property, which, according to the Applicant, is not liable for attachment. The learned Counsel would contend that without invoking the said provision, the Plaintiffs have directly filed the Suit and that too without giving a notice under Section 164 of the said Act. 5) Per contra, the learned Counsel appearing for the Respondent Nos. 1 to 20 Shri. Karnik would support the impugned order and would contend that since the Plaintiffs are neither members nor borrowers of the Defendant No. 1 Bank, they are entitled to invoke the jurisdiction of the Civil Court questioning the attachment and sale of the property i.e. the shops belonging to them. 1 to 20 Shri. Karnik would support the impugned order and would contend that since the Plaintiffs are neither members nor borrowers of the Defendant No. 1 Bank, they are entitled to invoke the jurisdiction of the Civil Court questioning the attachment and sale of the property i.e. the shops belonging to them. The learned Counsel would next contend that the objection regarding Section 164 of the said Act is curable and that the notice under Section 164 can be deemed to have been waived in the instant case, as the Plaintiffs had to rush to the Civil Court in view of the issuance of the proclamation of sale issued by the Petitioner Bank. In support of the said contention, the learned Counsel relied upon the Judgment of a learned Single Judge of this Court in the case of B. Y. Chavan and Anr. vs. Association of Tenants of the Bombay Catholic Housing Society and Ors. (1022(4) Mh. L. J. 935) as also the Judgment of another learned Single Judge of this Court in the case of RameshchandraRamkishan Sarda vs. Shankarrao Chavan and Anr. (2009(3) All MR 541). The learned Counsel would contend that notwithstanding the availability of a remedy by way of Sub-Rule 19 of Rule 107 of the said Rules, the right to file a Suit is still available even if the parties take recourse to the said remedy in support of the said contention, the learned Counsel sought to rely upon the Judgment of a learned Single Judge of this Court in the case of SangliSahakari Bank Ltd., Bombay vs. Divisional Joint Registrar, Bombay and Ors. (2002 (2) Mh. L. J. 948). 6) Having heard the learned Counsel appearing for the parties, I have bestowed my anxious consideration to the rival contentions. The issue which arises for consideration in the above Petition is whether the objection raised on behalf of the Petitioner, as regards the maintainability of the Suit is sustainable and whether the Suit filed challenging the proclamation of sale is maintainable. To answer the said issues, the following facts are required to be noted. It is an undisputed fact that the Defendant No. 1 has a certificate under Section 101 of the said Act in its favour, against the borrower Sattana Pawar and, the Respondent No. 22 herein who is the guarantor. To answer the said issues, the following facts are required to be noted. It is an undisputed fact that the Defendant No. 1 has a certificate under Section 101 of the said Act in its favour, against the borrower Sattana Pawar and, the Respondent No. 22 herein who is the guarantor. It is towards recovery of the amount covered by the certificate that the attachment of the property and thereafter the proclamation of sale has been issued. It is an undisputed position that the land bearing Survey No. 203 is of the ownership of the Respondent No. 22, who had given the development rights in respect of the said land to the Respondent No. 21, who has accordingly developed the said land and sold the shops to the Plaintiffs, i.e. Respondent Nos. 1 to 20 herein. Though the Plaintiffs are not the members or borrowers of the Petitioner Bank in the context of whether the Suit is maintainable, it would be apposite to refer to the remedy provided under the said Rules and especially Sub-Rule 19 of Rule 107, which, for the sake of convenience, is reproduced herein under: “107 [Procedure for attachment and sale of property under Section 156] ….............. (19) (a) Where any claim is preferred to, or any objection is made to the attachment of, any property attached under this rule on the ground that such property is not liable to such attachment, the Sale Officer shall investigate the claim or objection and dispose it of on merits: (b) Where the property to which the claim or objection relates has been advertised for sale, the Sale Officer may postpone the sale pending the investigation of the claim or objection. (c) Where a claim or an objection is preferred to the party against whom an order is 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.” The aforesaid provision therefore can be invoked against the attachment of the property. In the instant case, since the Plaintiffs have filed the Suit at the stage when the proclamation of sale is issued, hence, it is the said provision which would be applicable. In the instant case, since the Plaintiffs have filed the Suit at the stage when the proclamation of sale is issued, hence, it is the said provision which would be applicable. A reading of the said provision, therefore, discloses that any claim is preferred, or any objection is made to the attachment of, any property attached under this rule on the ground that such property is not liable to such attachment, the Sale Officer shall investigate the claim or objection and dispose it of on merits. Clause (b) of the said Sub Rule 19 provides that where the property to which the claim or objection relates has been advertised for sale, the Sale Officer may postpone the sale pending the investigation of the claim or objection. By Clause (c), it is provided that where a claim or an objection is preferred to the party against whom an order is 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. The said Sub Rule 19(a) to 19(c), therefore, provides a regime, under which, the claim or objection can be adjudicated and also provides what has to happen pending and post the adjudication. In Clause (c) of the said Sub Rule 19, the avenue to file a Suit to establish a right, which a person claims to the property in question, is provided, but subject to the result of such Suit, the order passed by the Sale Officer shall be final. Hence, the eventuality to file a Suit would arise only after the order has been passed by the Sale Officer and not prior thereto. In the instant case, the Plaintiffs, without availing of the said remedy under Sub Rule 19 of Rule 107 of the said Rules, have filed the Suit, especially when it is their case that the shops owned by them are not liable for attachment. The instant case is therefore not a case where an adjudication has taken place under Rule 107 and then the need to file the Suit arose. In my view, under the regime encompassed in Rule 107, the remedy against the attachment of a property, which is not liable for attachment, is available. The instant case is therefore not a case where an adjudication has taken place under Rule 107 and then the need to file the Suit arose. In my view, under the regime encompassed in Rule 107, the remedy against the attachment of a property, which is not liable for attachment, is available. The said Rule, as can be seen, also provides for interim measures pending the adjudication of the said claim or objection. 7) The requirement to issue notice under Section 164 of the said Act is enunciated by the Apex Court in the case of Mohan Meakin Limited (supra) and the learned Single Judge of this Court in the case of NoorMohd. Shami Shaikh and Anr. (supra). The case of the Plaintiffs that in the facts of the present case, the notice under Section 164 of the said Act is deemed to have been waived cannot be accepted. The reliance placed by the Plaintiffs on the Judgments of the two learned Single Judges of this court in the case of B. Y. Chavan and Anr. (supra) and in the case of Rameshchandra Ramkishan Sarda (supra) would not aid the Plaintiffs to contend that the said notice has been waived. Insofar as the first Judgment i.e. B. Y Chavan's Case (supra) is concerned, the notice was held to be waived in the facts and circumstances of the case, where, pursuant to the resolution passed by the Society for sale of the Society’s property and for redevelopment of Society's property that the cause for filing the Suit in question arose. It is in the fact situation of the said case wherein the Resolution was passed and the conveyance in favour of the developer was executed, on the very day that the urgency to file the Suit arose. It is in the said fact situation that a learned Single Judge of this Court held that the notice is deemed to have been waived in the said case. In the Judgment of RameshchandraRamkishan Sarda (supra), the learned Single Judge held that the non issuance of notice under Section 164 of the said Act was not fatal to the Suit and the Suit was maintainable. In the Judgment of RameshchandraRamkishan Sarda (supra), the learned Single Judge held that the non issuance of notice under Section 164 of the said Act was not fatal to the Suit and the Suit was maintainable. This conclusion, the learned Single Judge arrived on the basis that though the object and business of the Society concerned was to manufacture the PVC pipes and sell them, it cannot be said that construction of the factory for manufacturing the PVC pipes or making allied construction is the business of the Respondent Society. Hence, the learned Single Judge held that the notice was not necessary in view of the fact that the Suit filed was not in respect of any matter relating to the business of the Society. However, the instant case is a case where the Plaintiffs have a remedy by way of invoking Sub Rule 19 of Rule 107 of the said Rules to assert their case that their property i.e. the shops are not liable for attachment and sale. Once the said provision is invoked, the authority i.e. the Recovery Officer is obligated to adjudicate upon the claim made by the applicants. It is after the adjudication by the Recovery Officer, if need so arises that a Suit could be filed. The filing of the Suit, therefore, cannot be justified on the ground that even after the adjudication has taken place under Rule 107 of the said Rules, a Suit could be filed, as contemplated by Clause (c) of Sub Rule 19 of Rule 107 of the said Rules. However, as indicated above, the filing of the Suit can be resorted to only after an adjudication has taken place and not prior thereto, may be after the adjudication, the requirement of a notice under Section 164 of the said Act would then not arise, as there would already been an adjudication by the Recovery Officer, which has taken place prior thereto. In my view, the reliance placed by the learned Counsel appearing for the Petitioner on the Judgment of the learned Single Judge of this Court in the case of SangliSahakari Bank Ltd. (supra) is misplaced. The issue in the said case was whether the Revisional Jurisdiction under Section 154 could be invoked against an order passed under Sub-Rule 19 of Rule 107. A learned Single Judge held that the remedy by way of revision under Section 154 is available. The issue in the said case was whether the Revisional Jurisdiction under Section 154 could be invoked against an order passed under Sub-Rule 19 of Rule 107. A learned Single Judge held that the remedy by way of revision under Section 154 is available. It is further held that even if after filing a revision under Section 154 of the said Act, the party is not satisfied, it could still file a Suit. It is further held that a party may also, without invoking the revisional powers under the said Act, file a Suit. However, the said Sub-Rule 19 of Rule 107 itself contemplates that the Suit can be filed only after an adjudication has taken place, as subject to the orders passed in the Suit, the order passed by the authority under Sub Rule 19 of Rule 107 of the said Rules is made final. 8) In my view, therefore, the impugned order, insofar as it rejects the application of the Petitioner i.e. the original Defendant to the Suit that the suit is not maintainable, is required to be quashed and set aside and is accordingly quashed and set aside. In view of the specific remedy provided under Sub-Rule 19 of Rule 107, the Suit filed challenging the proclamation of auction sale is not maintainable at this stage and therefore the need to give notice and waive notice would not arise. However, it would open for the Plaintiffs to invoke the remedy under Sub-Rule 19 of Rule 107 of the said Rules by filing an appropriate application before the Recovery Officer and also pray for condonation of delay in filing the said application on such grounds as are available in law, including the ground that they were prosecuting the Suit in the Trial Court and thereafter the Writ Petition in this Court. If such an application is filed, the concerned authority i.e. the Recovery Officer would consider it on its own merits and in accordance with law. In the event, after the adjudication of the application under Sub-Rule 19 of Rule 107, the need arises for the Plaintiffs to file the Suit, the Plaintiffs would then be entitled to do so. The Petition is allowed to the aforesaid extent. Rule is accordingly made absolute with parties to bear their respective costs of the Petition.