Case Note & Summary
The petitioner, Rakeshkumar, owner of a flat in Nagpur, challenged the attachment of his flat by seizure memo dated 30.3.1998 issued by respondent no.3 (Naib Tahsildar) under Section 98 of the Maharashtra Cooperative Societies Act. The attachment was made due to a recovery certificate in favor of respondent no.4 (Maharashtra State Cooperative Housing Finance Corporation Limited) for dues of Rs.80,000. The petitioner's sole grievance was that he was not given an opportunity of hearing before the attachment. The petitioner agreed to deposit the amount of Rs.80,000 without prejudice to his rights and contentions, subject to the order of respondent no.3. The court, taking an overall view, ordered that the petitioner deposit Rs.80,000 with respondent no.4 within six weeks, upon which the attachment would cease. The court further directed the petitioner and respondent no.4 to appear before respondent no.3 on 3.4.2006, and respondent no.3 to hear them and decide whether the flat is liable to be attached, in accordance with law. The rule was made absolute with no order as to costs.
Headnote
A) Cooperative Law - Attachment of Property - Section 98 Maharashtra Cooperative Societies Act - Natural Justice - Petitioner's flat was attached by seizure memo without prior hearing - Court held that attachment without opportunity of hearing is improper - Directed petitioner to deposit Rs.80,000 with respondent no.4 within six weeks, upon which attachment would be lifted - Further directed respondent no.3 to hear parties and decide on attachment afresh (Paras 1-3).
Issue of Consideration
Whether the attachment of the petitioner's flat by seizure memo without granting him an opportunity of hearing is valid.
Final Decision
The court ordered that the petitioner deposit Rs.80,000 with respondent no.4 within six weeks from the date of order, without prejudice to his rights and contentions. Upon deposit, the attachment of the flat by seizure memo (Annexure A) would come to an end. The petitioner and respondent no.4 were directed to appear before respondent no.3 on 3.4.2006, and respondent no.3 shall hear them and decide whether the flat is liable to be attached, in accordance with law. The rule was made absolute with no order as to costs.
Law Points
- Natural justice
- Attachment before hearing
- Section 98 Maharashtra Cooperative Societies Act
- Conditional deposit
- Right to be heard
Case Details
2006 LawText (BOM) (01) 53
Writ Petition No.1161 of 1998
Mr. N. C. Phadnis for the petitioner
Rakeshkumar s/o Surendrakumar
State of Maharashtra, Tahsildar, Nagpur, Naib Tahsildar, Nagpur, Maharashtra State Cooperative Housing Finance Corporation Limited
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Nature of Litigation
Writ petition challenging attachment of flat by seizure memo without prior hearing.
Remedy Sought
Petitioner sought quashing of attachment and opportunity of hearing.
Filing Reason
Petitioner's flat was attached by seizure memo dated 30.3.1998 without granting him an opportunity of hearing.
Issues
Whether attachment of property without affording opportunity of hearing is valid under Section 98 of the Maharashtra Cooperative Societies Act.
Submissions/Arguments
Petitioner argued that before attaching his flat by seizure memo, respondent no.3 did not grant him opportunity of hearing.
Petitioner also stated that he was not given exact details of the amount due.
Petitioner agreed to deposit Rs.80,000 without prejudice to his rights and contentions.
Respondent no.4's counsel stated that dues are Rs.80,000.
Ratio Decidendi
Attachment of property without affording an opportunity of hearing is improper; however, the court may direct conditional deposit to balance interests, and the authority must hear the parties before deciding on attachment.
Judgment Excerpts
The only grievance made by the petitioner is that before attaching his flat by seizure memo dated 30.3.1998 the respondent no.3 did not grant him opportunity of hearing.
Without prejudice to the rights and contentions of the petitioner and subject to the orders that respondent no.3 may pass, the petitioner shall deposit within a period of 6 weeks from today the amount of Rs.80,000/- with respondent no.4.
The petitioner and respondent no.4 shall appear before the respondent no.4 on 3.4.2006 and respondent no.3 shall hear them and decide whether the flat of the petitioner is liable to be attached and make order in accordance with law.
Procedural History
The petitioner filed Writ Petition No.1161 of 1998 in the Bombay High Court, Nagpur Bench, challenging the attachment of his flat by seizure memo dated 30.3.1998 issued by respondent no.3 under Section 98 of the Maharashtra Cooperative Societies Act. The court heard the matter and passed the final order on 31.1.2006.
Acts & Sections
- Maharashtra Cooperative Societies Act: Section 98
