N.V. Anjaria, J. - (1.) Heard learned advocate Mr.Rajan Shah for the petitioner, learned Assistant Government Pleader Mr.Utkarsh Sharma for respondent Nos.1,3,5,6 and 7, learned advocate Ms.Yogini Parikh for respondent No.2 and learned advocate Mr.Kuldeep Vaidya for respondent No.4.
(2.) By filing the present petition, the petitioner has prayed to declare the public auction conducted on 28th January, 2016 and also subsequent proceedings as illegal having been vitiated by irregularities. It is further prayed to set aside the sale certificate dated 29th February, 2016 issued by respondent No.1-Special Recovery Officer and respondent No.2-Ukhrala Seva Sahakari Mandli in favour of respondent No.4.
(3.) The relevant facts may be highlighted. The land bearing Survey Nos.122 and Khata No.136, admeasuring about Hector 5-15-98 situated at Village Ukhrala, Taluka Ghodha, District Bhavnagar, for which auction was held, was originally running in the name of one Hiraba Natvarsinh Vala. After the death of Hiraba, name of present petitioner was mutated in the revenue records by Entry No.1485. It appears that the petitioner obtained agriculture loan of Rs.25,45,285/- from the second respondent-Ukhrala Seva Sahakari Mandli on 27th May, 2003. The petitioner at that time was also a Secretary of the said Mandli. It is also an admitted position that the present petitioner and his sons named Aniruddhsinh and Chitanyasinh had obtained as many as seven loans from the said Mandli during the period 2003 to 2005. While the petitioner was the Secretary, the sons were members of the society. 3.1 The second respondent-society went into liquidation. The liquidator came to be appointed on 24th December, 2009. After the society's liquidation, the District Registrar, Bhavnagar, initiated proceedings for recovery of loan under Section 106(1) of the Gujarat Co-operative Societies Act, 1961. The said authority issued a Certificate dated 20th August, 2009 about petitioner's liability to pay Rs.25,88,691/- along with interest in respect of the loan taken. It appears, as stated by respondent No.2 in his affidavit, that the loans taken by the sons of the petitioner were also not repaid. 3.2 A notice under Section 152 of the Bombay Land Revenue Code came to be served on 01st April, 2010 to the petitioner-borrower who was a defaulter. Thereafter on 13th October, 2011 notice for attachment under Sections 154 and 155 of the Code were served. On different dates though notices under the Code were served, petitioner did not pay the loan amount which was outstanding as per the Certificate. The auction was announced and was to be held on 15th October, 2012. It appears that the petitioner paid an amount of Rs.03,95,000/-, thereafter preferred Special Civil Application No.17101 of 2012 before this Court. The said petition came to be withdrawn. As per the direction given by this Court, petitioner paid further amount of Rs.02,90,000/-. 3.3 The auction was again kept on 24th November, 2014. The petitioner offered to pay and paid Rs.02,50,000/-. His sons also paid part of the amount. At their request, auction was postpone. The auction was for the third time announced and scheduled to take place on 28th January, 2016. Against the order of the competent authority announcing auction to take place on 28th January, 2016, the petitioner preferred Revision Application Nos.01 of 2016 and 02 of 2016 before the Additional Registrar (Appeals). The same was kept after sometime to enable the petitioner to pay amount but he did not pay. 3.4 The third auction took place on 28th January, 2016 in which six parties participated. Pursuant to the said auction held on 28th January, 2016, Sale Certificate came to be issued on 29th February, 2016. In that auction held for property at Survey No.122 mortgaged for the loan in question, amount of Rs.57,72,333/- was recovered. 3.5 It is born out from the record, in particular from the contents of the affidavit-in-reply on behalf of the second respondent Co-operative Bank, that the petitioner and his son Aniruddhsinh Vala had received loan of Rs.25,45,285/-, Rs.15,00,000/- and Rs.04,67,000/-. The procedure was that the loan was to be sanctioned from the second respondent Bank only, which was not observed and the procedure was not followed. The auditors recommended the inquiry under Section 93 of the Gujarat Co-operative Societies Act, 1967. Upon the said inquiry, petitioner and his son were held liable to pay the loan amount with interest as per the said report dated 01st August, 2015 of the auditors. It is stated that the respondent authority is required to recover Rs.79,09,480/- and an amount of Rs.21,37,147/- is still due and payable.;