Special Recovery Officer,Through Shri. Sushant v. Wadile,R
Case Details
2025:BHC-AUG:18726 6887.14wp etc(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6887 OF 2014Shri Mumbadevi Zilla SahakariPat Sanstha Maryadit, Kopargaon,Through its Manager,At Shivaji Putala, Kopargaon,Dist. Ahmednagar….PETITIONERVERSUS1.The Divisional Joint Registrar,Co-operative Societies, Nashik,Division Nashik, 3rd Floor,Gruha Nirman Bhavan, Gadkari Chowk, Nashik2.Shri. Sushant Hiraman Wadile,The Recovery and Sale Officer,Shri. Mumbadevi Zilla SahakariPat Sanstha Maryadit, Kopargaon,Tq. Kopargaon, Dist. Ahmednagar3.Vijay s/o Shamrao Bhokare,Age: 56 years, Occu: Service,R/o. Shradha Nagari, Indirapath,Tq. Kopargaon, Dist. Ahmednagar4.Sanjay s/o Shamrao Bhokare,Age: 54 years, Occu: Service,R/o. Bhokare Building, Parvati Sadan,Tq. Kopargaon, Dist. Ahmednagar5.Satish s/o Shamrao Bhokare,Age: 52 years, Occu: Service,R/o. Shrushti Apt., Vivekanandnagar,Tq. Kopargaon, Dist. Ahmednagar ….RESPONDENTS ….
Legal Reasoning
6887.14wp etc(2)Mr S. V. Adwant, Advocate for petitioner Ms A. S. Mantri, A.G.P. for respondent No.1Mr C. V. Korhalkar, Advocate for respondent No.2Mr Sanket S. Kulkarni, Advocate for respondent Nos.3 to 5ANDWRIT PETITION NO.9663 OF 20141)Vijay s/o Shamrao Bhokare,Age: 56 years, Occu: Agriculture,R/o. Shradha Nagari, Indirapath,Tq. Kopargaon, Dist. Ahmednagar4.Sanjay s/o Shamrao Bhokare,Age: 54 years, Occu: Agriculture,R/o. Bhokare Building, Parvati Sadan,Tq. Kopargaon, Dist. Ahmednagar5.Satish s/o Shamrao Bhokare,Age: 52 years, Occu: Service,R/o. Shruti Apt., Vivekanand nagar,Tq. Kopargaon, Dist. Ahmednagar….PETITIONERSVERSUS1)Shri Mumbadevi Zilla SahakariPat Sanstha Maryadit, Kopargaon,Through its Manager,At Shivaji Putala, Kopargaon,Dist. Ahmednagar2)Special Recovery Officer,Through Shri. Sushant V. Wadile,R/o : Shri. Mumbadevi Jilha NagariSahakari Pat Sanstha, At Kopargaon,Tq. Kopargaon, Dist. Ahmednagar3)Divisional Joint Registrar,Co-operative Societies, Nashik Division, Nashik ….RESPONDENTS 6887.14wp etc(3)….Mr Sanket S. Kulkarni, Advocate for petitionersMr S. V. Adwant, Advocate for respondent No.1Mr C. V. Korhalkar, Advocate for respondent No.2Ms A. S. Mantri, A.G.P. for respondent No.3 CORAM : PRAFULLA S. KHUBALKAR, J. RESERVED ON : 30th April, 2025 PRONOUNCED ON : 18th July, 2025JUDGMENT :-1.Heard. Rule. Rule made returnable forthwith. Heardfinally by consent of the parties.2.The petitioner in Writ Petition No.6887/2014 has raisedchallenge to the order dated 20/05/2014, passed by respondent No.1/Divisional Joint Registrar, Co-operative Societies Nasik and the sameorder is the subject matter of challenge in Writ Petition No.9663/2014to the extent of challenge to the direction of payment of ‘surcharge’ ofRs.2,46,000/- to the respondent/Society. The entire controversyinvolved in these two petitions is with respect to the recoveryproceedings initiated by Shri Mumbadevi Zilla Sahakari PatsansthaMaryadit, Kopargaon, Dist. Ahmednagar (hereafter referred to as theSociety) against the borrowers who are the legal representatives of onelate Smt. Indumati Shamrao Bhokare. Since both these petitions arise 6887.14wp etc(4)out of same factual backgrounds, although raising challenge to theimpugned order from different perspectives, the petitions are decidedby way of a common judgment and order.3.The factual background leading to the filing of the instantpetitions is briefly stated as under :-(i)On 25/02/2003, one Smt. Indumati Shamrao Bhokare hadavailed loan of Rs.6,00,000/- from the Society againstsecurity of her property bearing land Survey No.57/21 byway of registered mortgage executed in favour of the saidSociety.(ii)On 12/09/2005, original borrower Indumati died leavingbehind Vijay Shamrao Bhokare, Sanjay Shamrao Bhokareand Satish Shamrao Bhokare, who are arrayed as respondentNos.3 to 5 in Writ Petition No.6887/2014 (and are petitionersin Writ Petition No.9663/2014) and also one daughter who isnot arrayed as a party.(iii)The Society initiated proceedings under Section 101 of theMaharashtra Co-operative Societies Act, 1960 (for short ‘theMCS Act’) for recovery of amount of Rs.11,79,631/-. 6887.14wp etc(5)(iv)On 10/09/2007, the Assistant Registrar, Co-operativeSocieties, Kopargaon issued a recovery certificate in favourof the Society and against the legal representatives of theborrower.(v)In the year 2007, the said legal representatives filed SpecialCivil Suit No.112/2007 before the Civil Judge JuniorDivision, Kopargaon, seeking declaration and injunction. On13/02/2007, the Trial Court granted temporary injunction andrestrained the Society from executing the recoverycertificate. Feeling aggrieved by this, the Society preferredWrit Petition No.1356/2008 before this Court, wherein byorder dated 25/11/2008, the special civil suit was ordered tobe disposed of and the Assistant Registrar, Co-operativeSocieties was directed to decided the matter afresh.(vi)On 18/02/2009, the Assistant Registrar, Co-operativeSocieties, Kopargaon issued a fresh recovery certificate infavour of the Society. (vii)The legal representatives of the borrower thereafter filedDispute No.163/2009 before the Co-operative Court, 6887.14wp etc(6)Kopargaon, raising challenge to the recovery certificate. On07/04/2009, the Cooperative Court, Kopargaon grantedinterim injunction, restraining the Society from recoveringloan amount.(viii)The Society then filed Writ Petition No.2776/2009 beforethis Court, which came to be allowed. Simultaneously, thelegal representatives of the borrower had filed a separate writpetition bearing Writ Petition No.3457/2009, which wassummarily dismissed on 18/09/2009.(ix)The legal representatives of the borrower then filed LettersPatent Appeal No.194/2009 before this Court, which came tobe dismissed by order dated 11/03/2010. (x)In this background, Mrs Vaishali Gharge, who is one of thelegal representatives of the borrower (sister of respondentNos.3 to 5 in Writ Petition No.6887/2014) filed a suit bearingSpecial Civil Suit No.98/2010 seeking a share in themortgaged property and for partition and separate possessionof her share, in which the Society was impleaded as a partydefendant. An injunction application filed in this suit was 6887.14wp etc(7)rejected by order dated 03/12/2010. In this background, themortgaged property was put to auction, which waschallenged by the legal representatives of the borrower videWrit Petition No.85/2011 and by orders passed by this Court,the Society was allowed to recover an amount ofRs.24,45,778/-. The Society thereafter filed Letters PatentAppeal No.219/2011 which was allowed by the DivisionBench of this Court by order dated 03/08/2011. Thereafter,on 07/02/2012, the recovery officer conducted plot-wise saleof the mortgaged property.(xi)Raising challenge to the reserve price of the mortgagedproperty, the legal representatives of the borrower filed WritPetition No.1348/2012 which was later on withdrawn bythem seeking liberty to file proceedings under Rule 107 (13)of the Maharashtra Co-operative Societies Rules 1961 (forshort ‘the MCS Rules’).(xii)On 16/07/2012, an order came to be passed by the AssistantRegistrar rejecting the objection of the legal representativesof the borrower for sale of plot Nos.16 and 18. 6887.14wp etc(8)(xiii)On 27/11/2012, the legal representatives of the borrower thenfiled a Revision Application No.163/2012 before theDivisional Joint Registrar, Co-operative Societies,Nashik/respondent No.1, which came to be partly allowed byorder dated 15/10/2013 and the matter was remanded torespondent No.2/Recovery Officer.(xiv)Feeling aggrieved by the order passed by the Divisional JointRegistrar, the Society filed Writ Petition No.10259/2013which was disposed of, by which the order of remand was setaside and the Divisional Joint Registrar was directed todecide the matter finally after considering all the claims. (xv)After remand, the Divisional Joint Registrar passed finalorder dated 20/05/2014, by which, the revision applicationfiled by the legal representatives of the borrower came to beallowed. By this order the proclamation of re-auction sale ofthe mortgaged property issued by the Special RecoveryOfficer of the Society came to be set aside and the legalrepresentatives of the borrower were directed to pay anamount of Rs.2,46,000/- as ‘surcharge’ to the Society. 6887.14wp etc(9)(xvi)Feeling aggrieved by this order, the Society has filed instantWrit Petition No.6887/2014 and the legal representatives ofthe borrower (Vijay Shamrao Bhokare, Sanjay ShamraoBhokare and Satish Shamrao Bhokare) filed Writ PetitionNo.9663/2014 raising challenge to the direction for paymentof ‘surcharge’.4.In the backdrop of this factual setup, the controversyabout challenge to the order passed by the Divisional Joint Registrar,falls for consideration of this Court.5.The Society has filed Writ Petition No.6887/2014 on28/07/2014, in which the following prayer clauses are put forth :-“[A] Writ Petition may kindly be allowed by making the ruleabsolute[B] By issuing an appropriate writ, order and direction, theorder dated 20.5.2014 passed by the respondent No.1 inRevision Application No.163/2012 be quashed and set asideand the revision filed be dismissed.[C] During the pendency of this writ petition, furtherproceedings the operation and implementation of the orderdated 20.5.2014 passed by the respondent No.1 in RevisionApplication No.163/2012, be kindly stayed.[D] Any other relief to which the petitioner is entitled in thecircumstances of the case be granted and oblige.”
Decision
6887.14wp etc(10)6.The legal representatives of the borrower have filed WritPetition No.9663/2014 on 22/09/2014, in which following prayers areput forth :“A) Call record and proceedings of the matter.B) By issuing appropriate writ order, direction, quash andset aside the order dated 20.05.2014 to the extent directingpayment of surcharge of Rs. 2,46,000/- to the respondentsociety passed by the learned Divisional Joint Registrar, Co-Operative Society Nashik, Division Nashik by way ofsurcharge.C) By issuing appropriate writ, order, direction, therespondent no.1 & 2 may kindly be directed to release theland of the petitioner i.e. Survey no.57(1A+2A)/2admeasuring 9057.5 square meters at Jeur Patoda, TalukaKopargaon from attachment as the petitioner has paid theentire amount under award alongwith the costs and interest.D) By issuing appropriate writ, order, direction, it may bedeclared that as per the judgment of the Hon’ble DivisionBench in LPA No.219/2009, the petitioner has paid the entireamount as per the recovery certificate and the respondentno.1 society has no right to recover any further amount.E) Pending hearing & final disposal of the writ petition therespondent no.1 & 2 may kindly be directed to release theland of the petitioner i.e. Survey no.57(1A+2A)/2admeasuring 9057.5 square meters at Jeur Patoda, TalukaKopargaon from attachment.F) Pending hearing & final disposal of the writ petition stayto the order dated 20.05.2014 to the extent directing paymentof surcharge of Rs. 2,46,000/- to the respondent society 6887.14wp etc(11)passed by the learned Divisional Joint Registrar Co-Operative Society Nashik, Division Nashik.G) Grant ad-interim relief in terms of prayer clause "E" &"F" as above.(H) Award cost to the petitioner.I) And pass any other order this court fits deem and properin the peculiar facts and circumstances of the case.”7.It has to be noted that the impugned order is passed by theDivisional Joint Registrar after elaborately considering the contentionsraised by the Society as well as the legal representatives of theborrower, wherein the Society raised claim for recovery of all theexpenses incurred by it in the entire process of recovering the amountsthrough the series of litigations, whereas the legal representatives ofthe borrower raised contentions refuting the claim of the Society forrecovery of any additional amount and took a specific stand that theentire outstanding loan amount was already paid from time to time andthe claims for other ancillary amounts cannot be raised videproceedings under Section 101 of the MCS Act. On giving elaborateconsideration to all these aspects, the Divisional Joint Registrardirected the legal representatives of the borrower to pay only theamount of surcharge. 6887.14wp etc(12)8.It is significant to note that the Divisional Joint Registrar,after referring to all the contentions of the parties has specificallyinferred that the claims sought to be raised by the Society are not partand parcel of the recovery and the Society was never agitated beforethe Assistant Registrar, Co-operative Society earlier, specificallyobserving that the Society has recovered all the money as per therecovery certificate and still the society has shown an amount ofRs.13,00,000/-to be recovered by way of expenses. In this regard, it isultimately concluded that, if at all the Society wants to recover thisamount, it can approach appropriate forum/Court. These inferencesare found in paragraph No.54 of the impugned order, which isreproduced below :-“54.Except the surcharge RS. 2, 24, 843/-, the above expensesshown are not included in recovery certificate. These are allnew issues can not be decided under section 154 of theMaharashtra Cooperative Societies Act, 1960 before me asthese are not at all part & parcel of recovery certificate issuedand they never agitated these issues before Assistant Registrar,Cooperative Societies, Kopargaon, Taluka Kopargaon, DistrictAhmednagar. As per the recovery certificate, the respondent No.1 society has recovered all the money. The society has shownRS. 13, 00, 000/- lakh to be recovered is all expenses shownabove which is not included in recovery certificate. And if at allsociety want to recover this amount they can approach theappropriate forum/Court. It is further observed that whileissuing letter dated 16/07/2012 respondent No. 1 has notscrupulously followed the provisions of Rule 107 (13) (i) (a) (b), 6887.14wp etc(13)(ii) and Rule 107 (15) of the Maharashtra Cooperative SocietiesRules, 1961. In this view of the aforesaid discussions, the othercontentions as raised by respondents during the course ofhearing in the present matter can not be accepted andconsidered, since respondents have not properly justified thesame. Therefore, I think it proper to interfere with the letterdated 16/07/2012 issued by respondent No. 2 Special RecoveryOfficer of respondent No. 1 cooperative credit society.”9.As such, it is clear that, all the claims raised by theSociety on the pretext of expenses towards litigation/travelling/auctionwere not claimed before the Assistant Registrar, Co-operativeSocieties, and there is no justification of the quantified amounts. It ispertinent to note that, in view of the claims being admitted to be raisedbefore the Divisional Joint Registrar for the first time, which werefound to be unjustified, the Divisional Joint Registrar has kept openthe claims by observing that, if at all Society wants to recover thisamount, then it can approach the appropriate forum/Court. Under thisbackground, the Society has filed writ petition (Writ PetitionNo.6887/2014), thereby raising challenge only to the impugned order,without mentioning any prayer for award of compensation, much lessby paying any Court fees for alleged claim for recovery for money.10.Pertinent to note that, in the petition filed by the Society(Writ Petition No.6887/2014), a challenge is raised to the impugned 6887.14wp etc(14)order dated 20/05/2014 vide prayer clause (B), with a prayer to quashand set aside the said order. While narrating the factual aspects, theSociety has elaborately stated certain amounts, alleged to have beenspent at various stages during the process of recovery proceedings andby categorically mentioning certain figures, it is stated that the Societyhas spent total amount of Rs.39,62,755/- and after recovery of variousamounts from time to time, the net recovery as on 02/04/2013 isRs.16,12,755/-. It is pertinent to note that the petition simply raises achallenge to the impugned order and there is no prayer for recovery ofany amount, much less, the alleged amount of Rs.16,12,755/-.11.Advocate Mr Adwant, learned counsel for the Society(petitioner in Writ Petition No.6887/2014 and respondent No.1 in WritPetition No.9663/2014) made elaborate submissions to demonstratethat the Society was required to spend huge amount from time to timein the series of litigations for recovering its own dues. He invitedattention of the Court to the entire sequence of events narrating thedetails of each of the litigations and submitted that the Society isentitled for recovery of all the costs, expenses, court fees, travellingexpenses, advocate’s fees, auction expenses alongwith interest,surcharge and commission, since the Society was compelled to spend 6887.14wp etc(15)all these amounts, as it was compelled to contest these litigations. Insupport of his submissions that the society is entitled to recover allthese expenses in the proceedings under Section 101 of the MCS Act,he invited attention of the Court to various provisions of MCS Act,Code of Civil Procedure, Civil Manual, etc., particularly Sections 103,131, 133,135, 135, 138, 155, 156 and 165 of MCS Act and provisionsof Sections 35, 35-A, 35-B, Order XX Rule 6(2) and 6(3), Order XX-Aof the Code of Civil Procedure alongwith clause 283 and 284 of theCivil Manual.12.Apart from referring to these provisions, he has referred tothe commentaries of various authorities on the subject of concept ofcosts as stated in Black’s Law Dictionary, commentaries by P.Ramanatha Aiyar’s the Major Law Lexicon and a few judgments of theCanadian Court of Appeal and Halsbury’s Law of England, which arealso mentioned in the notes for consideration dated 04/04/2025,submitted by him.13.Although learned counsel for the Society has referred tothe above mentioned provisions and the judicial trends on the subjectof imposition of costs, it has to be noted that the controversy involvedin the petition is with respect to entitlement of the Society for award of 6887.14wp etc(16)costs/expenses of litigation/travelling allowance, etc in the proceedingsunder Section 101 of the MCS Act. 14.Advocate Mr Adwant, learned counsel for the Societyvehemently argued that there is an utter non compliance with Sub Rule13 of Rule 107 of the MCS Rules 1961 and the Society was deprivedfrom recovering its dues. He further submitted that the Society isempowered according to its bye-laws to recover each and everyamounts towards its dues and there is no restriction to recover onlyprincipal amounts. He vehemently submitted that the borrowersutilized the loan amounts and the Society was compelled to spend hugeamounts only for the purpose of recovery of its dues, whichundisputedly involved huge expenses towards litigation costs,travelling expenses, expenses for conducting auction and many otherancillary amounts. Referring to the bye-laws of the Society, he hassubmitted that the Society is empowered and the borrowers are dutybound to compensate all the expenses. He also submitted that the legalrepresentatives of the original borrower who have inherited theproperty are under a pious obligation to repay the debts of originalborrower i.e. late Smt. Indumati Shamrao Bhokare. 6887.14wp etc(17)15.In order to highlight his submissions on the entitlement ofthe Society to recover additional amounts by way of costs,compensatory costs, travelling allowance, litigation expenses, etc., hehas relied upon the following case laws, and while referring to fewparagraphs from these judgments, he has submitted that the Societywas required to spend huge amount for recovering its own dues andtherefore, by applying the analogy of the principles laid down in thejudgments, the additional amounts in the nature of compensatory costsand other expenses need to be awarded to the Society. He has reliedon the following judgments :-(I)Akar Plastics Vs. Rajgurunagar Sahakari Bank Ltd. &others, (2003) 105 BOMLR 339(II)Shri. Dilipkumar Hirachand Jain Vs. Dena Bank,WP/1787/2008 Bombay High Court, Bench at Aurangabad(III)Dnyandeo Sabaji Naik and Anr. Vs. Pradnya PrakashKhadekar and others, (2017) 5 SCC 496(IV)Union of India and others Vs. Pirthwi Singh and others,(2018) 16 SCC 363(V)Charu Kishore Mehta Vs. Prakash Patel and others, 2022SCC OnLine SC 1962 6887.14wp etc(18)(VI) Vijay Shivaji Kokate Vs. Divisional Joint Registrar, Co-operative Societies, Nashik and others, 2007 SCC OnLine Bom27(VII) Shiv Kumar Sharma Vs. Santosh Kumari, (2007) 8 SCC600(VIII)Salem Advocate Bar Association T.N. Vs. Union Of India,(2005) 6 SCC 344(IX)Ashok Kumar Mittal Vs. Ramkumar Gupta, (2009) 2 SCC656(X)Vinod Seth Vs. Devinder Bajaj and anr. (2010)8 SCC 1(XI)Sanjeev Kumar Jain Vs. Raghubir Saran Charitable Trustand others, (2012) 1 SCC 455(XII)Ramrameshwari Devi and others Vs. Nirmala Devi andothers, (2011) 8 SCC 249(XIII)National Textile Corporation Limited Vs. Kunj Bihari Lal,2010 (118) DRJ 543.These judgments deal with various situations in which theCourts have awarded costs in the facts of those cases and some of thejudgments also deal with the factors which need to be considered whileawarding costs. However, the issue involved in these petitions is withrespect to claim for costs/compensation on account of the series of 6887.14wp etc(19)litigations contested by the parties with respect to recovery certificateunder Section 101 of the MCS Act. The general principles of law laiddown in these judgments are not disputed, however, in view of thepeculiar facts of the case in hand and in view of the prayers of thesepetitioners, the citations relied upon are of no assistance to thepetitioner/Society. 16.As regards Writ Petition No.9663/2014, which is filed bythe legal representatives of the original borrower challenging theaward of surcharge, Advocate Mr Adwant appearing for the Societymade vehement submissions to oppose the petition. He submitted thatthe petitioners have failed to raise any substantial grounddemonstrating any illegality in the order directing payment ofsurcharge of Rs.2,46,000/-. He submitted that the Society is entitledfor award of the amount of surcharge in accordance with variousGovernment Resolutions and Circulars and in particular, he reliedupon the Government Resolution dated 06/11/1985, which hasprovided that, a Society is empowered to recover outstanding amountof loan and additionally in accordance with Section 156 of the MCSAct, the Society is empowered to recover the amount for execution ofthe award. While referring to this Government Resolution, hesubmitted that the Society is entitled for surcharge at different rates 6887.14wp etc(20)depending upon the stages at which the amount is recovered. In orderto justify the direction for grant of surcharge, he also relied on otherGovernment Resolutions including Government Resolution dated18/07/1985 and 27/02/1992, which are tendered across the bar. He,therefore, submitted that the direction to grant surcharge @ 6% on theactual recovered amount is absolutely justified.17.Advocate Mr Sanket Kulkarni, learned counsel for thelegal representatives of the original borrower (petitioners in WritPetition No.9663/2014 and respondent Nos.3 to 5 in Writ PetitionNo.6887/2014) strongly opposed the contentions raised by learnedcounsel for the Society. His primary contention for opposing thepetition filed by the Society (Writ Petition No.6887/2014) is that,when the impugned order passed by the Divisional Joint Registrarrecords categorical findings about irregularity/illegality in the auctionsale, there is no question of ordering any other recovery against thelegal representatives of the borrower. He has vehemently submittedthat the borrowers have paid the entire amount of outstanding dues andthe proclamation of re-auction sale dated 27/12/2012 is itself set asideby the Divisional Joint Registrar and therefore, there is no question ofeven directing payment of surcharge. He has submitted that, althoughthe impugned order observes that the Society is entitled to approach 6887.14wp etc(21)the appropriate forum/Court for seeking recovery of all the additionalamounts in the nature of costs, litigation expenses, travelling expensesand other amounts, the same cannot be recovered by way of instantpetition. By inviting attention to the prayer clause in Writ PetitionNo.6887/2014, he vehemently submitted that there is no prayer forrecovery of any amounts in this petition and the only prayer is to quashand set aside the order dated 20/05/2014, passed by the DivisionalJoint Registrar. He, therefore, would submit that this petition underArticle 227 of the Constitution of India cannot be treated to be in thenature of civil suit for recovery and the Society cannot claim any reliefbeyond scope of Article 227 of the Constitution of India.18.As regards the contentions of the learned counsel for theSociety to claim amounts over and above the amounts of recoverycertificate, Advocate Kulkarni, counsel for borrowers relied on theGovernment Circular in the nature of order under Section 156 readwith Rule 107 of the 1961 Rules, dated 06/04/2018 and submitted thatthe maximum amount that could be claimed by way of costs of processis quantified at Rs.1,50,000/- and in no case the Society can claim anyamount over and above this. He thus submitted that, if at all theSociety can establish its entitlement to claim an amount towards costsof process, this Circular dated 06/04/2018 can serve as a guidelines in 6887.14wp etc(22)the proceedings initiated by the Society before appropriateforum/Court. He submitted that, although the Divisional JointRegistrar has observed that the Society is entitled to recover the costsby way of appropriate proceedings, the same cannot at all be claimedby way writ petition under Article 227 of the Constitution of India. 19.As regards Writ Petition No.9663/2014, which is filed bythe legal representatives of the borrower, primary contention ofAdvocate Mr Sanket Kulkarni is that the Society is not entitled foraward of any surcharge, since the auction sale itself has been set asideby the Divisional Joint Registrar. He submitted that the impugnedorder is passed in the revision application which was filed by theborrower and the Society is not entitled to claim any relief in thoseproceedings and the award of surcharge by way of the impugned orderis beyond jurisdiction of the Divisional Joint Registrar. This apart, hesubmitted that the impugned order does not mention any provision oflaw on the basis of which the surcharges were to be paid. On thestrength of these submissions, he submitted that, in view of thepayment of entire dues of the Society, which is not disputed,respondent Nos.1 and 2 in Writ Petition No.9663/2014 i.e. Shri.Mumbadevi Zilla Sahakari Patsanstha Maryadit, Kopargaon and theSpecial Recovery Officer need to be directed to release the land of the 6887.14wp etc(23)petitioners i.e. Survey No.57(1 Acre + 2 Acre)/2 admeasuring 9057.5sq. mtrs. at Jeur Patoda, Tq. Kopargaon from attachment. Hesubmitted that, in absence of any entitlement of the Society to recoverany additional amount, there is no impediment to release this land ofthe petitioners.20.In support of his submissions, Advocate Mr SanketKulkarni relies upon the judgments in the matters of SatguruConstruction Co. Pvt. Ltd. and others Vs. Greater Bombay Co-operative Bank Ltd., 2007 (5) BCR 810 and Kranti AssociatesPrivate Limited and another Vs. Masood Ahmed Khan and others,(2010) 9 SCC 496.21.In the light of above mentioned submissions advanced bythe learned counsel for the Society and learned counsel for the legalrepresentatives of the borrower, the controversy now falls for myconsideration.22.Although the parties have advanced their elaboratedarguments, the controversy revolves around the entitlement of theSociety to claim any amount over and above the recovery certificate. Itis pertinent to note that the Society has claimed its entitlement foramount for costs/litigation expenses, future interest, travelling 6887.14wp etc(24)expenses, etc. as stated in paragraph No.29 of Writ PetitionNo.6887/2014, however, the prayer clause contains prayer aboutchallenge to the impugned order only. There is no prayer seekingaward of any amounts towards compensation or costs or litigationexpenses as orally claimed.23.While narrating the sequence of events and thebackground facts of the instant petitions, it is pointed out that theSociety and the legal representatives of the borrower have contested aseries of litigations involving challenge to the recovery certificateunder Section 101 of the MCS Act, auction sale, maintainability ofproceedings, etc. It cannot be forgotten that the proceedings werecontested by both the sides. The orders passed in these litigations alsoshow that there were certain irregularities and illegalities on the part ofboth the sides, and accordingly, the orders were passed in favour ofeither of the parties at various stages. The recovery certificate issuedagainst borrowers were found to be erroneous and the legalrepresentatives were required to initiate proceedings and the Societywas also required to contest the litigations for recovering its owndebts. 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(25)Registrar is required to be examined. Even the challenge in WritPetition No. 9663/2014 is limited to the direction to pay surcharge andconsequent direction for release of the land. As such, the scope ofthese writ petitions is limited to examine the challenge to theimpugned award and need not be enhanced to delve deep into area ofcalculating the amount of compensation or costs to be awarded. It ispertinent to note that, although learned counsel for the Society hasreferred to various provisions on various Statutes dealing with awardof costs in MCS Act, CPC and Civil Manual, however, apart from thechart mentioned in paragraph No.29 in Writ Petition No.6887/2014,there is no material in the nature of evidence to establish theseentitlements. Although it may be true that the Society was required tocontest series of litigations for the purposes of recovering its own dues,most crucial issue arises, as to whether while entertaining the petitionunder Article 227 of the Constitution of India, claim for costs, which isnot even prayed, need to be granted. Although the learned counsel forthe Society has relied upon various case laws as mentioned above,however, none of the judgments deal precisely with the issue of awardof costs, litigation expenses for recovery under Section 107 of theMCS Act, while deciding the petition under Article 227 of theConstitution of India. The judgments relied upon by the learned 6887.14wp etc(26)counsel for the Society deal with general principles of law with respectto award of costs, however, it has to be noted that principles related toaward of general damages while deciding the civil suit need not beapplied while deciding the petition under Article 227 of theConstitution of India, which raises challenge only to the impugnedorder. It is also crucial to note that the provisions with respect toaward of costs can be invoked by successful party at any given case.In the instant cases, the impugned order is passed in the revisionapplication which is filed by the legal representatives of the borrower,which is allowed and while raising challenge to this order, the Societyhas claimed entitlement for award of costs. In the peculiar facts of theinstant cases, and considering the entire contentions, I am of theconsidered view that the claim raised by the Society for award of costs,litigation expenses, travelling expenses, etc, is unsustainable. 24.Although the Divisional Joint Registrar has observed thatthe Society is entitled to raise the claim for these amounts beforeappropriate forum/Court, I am of the considered view that the claimraised by the Society in Writ Petition No.6887/2014, when consideredin the light of the prayers made by the Society, cannot at all be granted.The Society can have independent cause of action to raise claim for 6887.14wp etc(27)costs or compensation, however, in this petition, raising challenge tothe order passed by the Divisional Joint Registrar, the requests foraward of costs, without any prayer in the petition cannot beentertained. 25.Although Circular dated 06/04/2018 issued by theCommissioner of Co-operative Societies and Registrar of Co-operativeSocieties, Maharashtra providing for outer limit of Rs.1,50,000/- isplaced on record, it is pertinent to note that this can be a guiding factorin case where the claim is raised by the Society by way of civil suit orsimilar such proceedings. The Society has not even raised any claimon the basis of this Circular in its petition and as such, this circular isof no assistance in the peculiar facts of this case. 26.The issue about entitlement of the Society for claiming ofthe amounts spent towards litigation expenses, costs, travellingexpenses and other ancillary amounts is indeed of vital importance,since the Society is required to spend these amounts for recovery of itsown dues and the litigations are required to be contested on account offailure of the borrower to pay the loan amounts. However, this issuewill have to be decided on the basis of pleadings and evidence in anappropriate case, either in a civil suit or in similar such proceedings. 6887.14wp etc(28)The case in hand being the writ petitions under Article 227 of theConstitution of India, cannot be considered to be appropriate forum toaward costs, expenses, that too, in absence of any prayer in that regard.As such, the entitlement of the Society for raising of these claims isthough not disputed, the same cannot be granted in this petition. 27.As regards Writ Petition no.9663/2014 is concerned, it ispertinent to note that, by this petition, the legal representatives of theborrower have challenged the impugned order to the extent ofdirecting payment of surcharge of Rs.2,46,000/- to the Society. Asregards the claim for surcharge is concerned, it has to be noted that thepolicy of the Government is reflected in various GovernmentResolutions, including Government Resolution dated 06/11/1985,which provides the percentage of surcharge according to the stages atwhich it can be claimed. This Government Resolution and similarsuch resolutions are purported to have been issued in accordance withprovisions of Section 156 of the MCS Act. Pertinent to note that, asregards the order of granting surcharge, there is a foundation in thenature of Government Resolution based on a provision of law. Itprovides for award of surcharge at the specific rates. It has to be notedthat this amount by way of surcharge is over and above the amount 6887.14wp etc(29)claimed by way of recovery of loan and while considering the claimsraised by the Society, the Divisional Joint Registrar has consequentlyawarded surcharge @ 6% on actual recovered amount. The petitioners(borrowers) have raised challenge to the direction to pay the amount ofsurcharge, however, the grounds mentioned in the petition are generalin nature, simply questioning the provisions of law on the basis ofwhich surcharge is directed to be paid. The impugned order recordsthat the surcharge is directed to be paid in accordance with theGovernment Resolution in force, which is issued in tune with thepolicy of the Government. As such, the challenge to the award ofsurcharge is not substantiated. 28.In the light of above mentioned factual and legal aspects, Iam of the considered opinion that the petitioner/Society has failed toestablish its entitlement for claiming the additional amount by way ofcosts, litigation expenses, travelling expenses and other ancillarycharges in the petition under Article 227 of the constitution of Indiavide Writ Petition No.6887/2014 and the petition is liable to bedismissed.29.Having regard to the submissions with respect tochallenge to the award of surcharge, it has to be inferred that the 6887.14wp etc(30)petitioners in Writ Petition No.9663/2014 have also failed todemonstrate any illegality and therefore, their petition also needs to bedismissed. However, in view of the fact that the amount recoverablepursuant to recovery certificate under section 101 of MCS Act isalready recovered by the Society as a consequence thereof, the legalrepresentatives of the borrower (petitioners in Writ PetitionNo.9663/2014) are entitled for release of their property, if it is underattachment, by way of appropriate proceedings.30.In the light of above, Writ Petition No.6887/2014 isdismissed. Pending civil application also stands disposed of. No orderas to costs.31.Similarly, Writ Petition No.9663/2014 is dismissed. Noorder as to costs. 32.Rule is discharged. (PRAFULLA S. KHUBALKAR, J.)sjk