THE MALKAPUR URBAN CO-OPERATIVE BANK LTD. (UNDER LIQUIDATION )versusSTATE OF MAHARASHTRA AND ORS

                                                                        WP- 4734-2026.doc

                                                                           Rohit Ghuge

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
       Digitally
       signed by
                              CRIMINAL APPELLATE JURISDICTION
       ROHIT
ROHIT  RAMDAS
RAMDAS GHUGE
GHUGE Date:
       2026.10.01
       11:08:36
       +0530
                              CRIMINAL WRIT PETITION NO. 4734 OF 2026

                    The Malkapur Urban Co-operative Bank Ltd.
                    (under liquidation),
                    Head Office at “Dhanashri”, Buldhana Road,
                    Malkapur, Tah. Malkapur, Dist. Buldhana,
                    Through its Authorised officer,
                    Pravin S/o Sudhakar Lashkare,
                    Age: 50 years, Occ. Service.                        …Petitioner

                         Versus

                    1.   State of Maharashtra,
                         Through Department of Home,
                         Mantralaya, Mumbai

                    2.   Dhanshree Developers,
                         Having its principal place of business at Office No.101, Plot
                         No. 30, Jeevandeep Apartment, Suryodaya Chs, S.P.
                         Mukharji Road, Ambarnath (East), Thane 421501.
                         Though its Partners
                         a.     Sunil s/o Waman Chaudhari,
                         b.     Gunvantkumar S/o Sohanlal Kherodiya.

                    3.   Sunil S/o Waman Chaudhari,
                         Age: Major, Occu :- Business,
                         Partner of Dhanshree Developers,
                         R/o Flat No. 502/A, Trinetra Apartment,
                         Near Sibbu Place Hotel, Ambarnath (E), Thane,

                    4.   Gunvantkumar Sohanlal Kherodiya,
                         Age: Major, Occu. Business,
                         R/o Flat No. 504, A-3 Wing Indraraj Apartment, Sai Section
                         Road, Swami Dev Prakash Garde, Near Batale Hospital,
                         Ambarnath East, Thane.



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5.   M/s Shreenath Developers
     Office No. 101, Plot No. 30, Jeevandeep
     Apartment, Suryodaya CHS, S.P, Mukharji Road,
     Ambarnath (East), Thane-421501.

     a.    Sunil S/o Waman Chaudhari,
     b.    Gunvatkumar Sohanlal Kherodiya

6.   Nirmala Gunvantkumar Kherodiya
     Age: Major, Occu. Business,
     R/o Flat No. 504, A-3 Wing Indraraj Apartment, Sai Section
     Road, Swami Dev Prakash Garde, Near Batale Hospital,
     Ambarnath East, Thane.

7.   Nikhil Sunil Chaurdhari
     Age: Major, Occu. Business,
     R/o Flat No.502/A Trinetra Apartment, Shiv Dham Complex,
     Near Sibbu Palace Hotel, Ambarnath (East), Thane.

8.   Janardhan Namdeo Gawali
     Age: Major, Occ. Business,
     R/o Pale, Tq. Ambarnath (East), Dist. Thane.

9.   Jagdish Dinkar Bhoir
     Age: Major, Occ. Business,
     R/o Newali, Tq.Ambarnath (East), Dist.Thane.
                                                     …Respondents


Mr. Sanjeev Deshpande, a/w Mr. Avinish Deshpande a/w Mr.
Akshay Bhalerao for the Petitioner.

Ms. Sangeeta D. Shinde, A.P.P. for Respondent No.1-State.

                             CORAM : BHARATI DANGRE &
                                   ASHISH S. CHAVAN, JJ.

                            DATE      : 24th SEPTEMBER 2026




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JUDGMENT [Per Ashish S. Chavan J.]:

1.         Rule.    Rule is made returnable forthwith with the

consent of the parties and is taken up for final disposal. Learned

counsel appearing for the Respondents waive notice on behalf of

the respective Respondents.



2.   The Petitioner, a Co-operative Bank registered under the

Maharashtra Co-operative Societies Act,1960 has filed the aforesaid

Writ Petition impugning two concurrent orders dated 02.01.2026

and 22.07.2026 both passed by Joint Civil Judge, Senior Division

and ACJM, Thane, (“Trial Court”) inter alia directing the Petitioner

to deposit Commission fee payable to the Court Commissioner to

the extent of Rs. 15,00,000/- in an action of recovery initiated by

the Petitioner under the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest Act, 2002

(“SARFAESI Act, 2002”), by approaching the Trial Court u/s 14 of

the SARFAESI Act, 2002 to obtain possession of the secured assets.



3.   Heard Mr. Deshpande for the Petitioner, and Ms. Shinde, APP

for Respondent No.1-State




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4.    On behalf of the Petitioner bank it is submitted that the

Respondent Nos. 2-9 are the borrowers and guarantors who have

defaulted in repayment of financial assistance availed by them from

the Petitioner Bank. Upon filing an application u/s 14 of SARFAESI

Act, 2002 the Trial Court vide the impugned order dated

02.01.2026 allowed the same appointing an advocate as the Court

Commissioner for taking possession of the secured assets and

directed the Petitioner to deposit an amount of Rs. 15,00,000/-

[Rupees Fifteen lakhs] towards the Commissioner’s fee. The

Petitioner once again approached the Trial Court seeking

modification of the earlier impugned order on the ground that the

amount was excessive and arbitrary. The Application seeking

modification also came to be rejected vide impugned order dated

22.07.2026. The Ld. Counsel for the Petitioner Bank contends that

the impugned order dated 22.07.2026 is arbitrary, irrational and

exorbitant since the only justification given by the Trial Court for

such high remuneration seems to be that possession of 167 flats is

required to be taken by the Court Commissioner without

appreciating that number of flats by itself cannot constitute a

criterion   for   fixation   of   the   remuneration   of   the   Court

Commissioner. The Trial Court did not appreciate whether the flats



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were situated in the same project, the time likely to be consumed in

taking possession and most importantly the fact that the Petitioner

Bank being under liquidation was not in a position to deposit an

amount of Rs. 15,00,000/- towards the Court Commissioner’s

remuneration.



5.    The Respondent No. 1 - State has opposed grant of any relief

to the Petitioner Bank justifying the impugned orders.



6.    In the light of the fact that the Petitioner has assailed the

impugned orders only to the limited extent of the quantification of

the remuneration of the Court Commissioner, the core issue that

arises for our consideration is whether the order quantifying the

Court Commissioner’s fees is a reasoned order and whether the fees

are exorbitant and excessive as contended by the Petitioner Bank.

Although, the SARFAESI Act, 2002 does not prescribe any schedule

of fees to be paid to the officer who is authorized to take possession

of assets to aid the District Magistrate or the CJM, it would be

necessary for the Trial Court to take into consideration several

factors including the financial capacity of the Applicant Bank while

quantifying the fees of the Court Commissioner. The only



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justification that the Learned CJM gives in the impugned order

dated 02.01.2026 is that the remuneration is commensurate to the

efforts required by the Court Commissioner to take possession of

167 flats and hence, the quantum of remuneration is higher. We also

note that the Petitioner had sought modification of the impugned

order placing on record the financial constraint of the Petitioner and

pointing out that the Petitioner bank is under liquidation and an

official liquidator has been appointed since 2023 by the Competent

Authority. The total liability payable to depositors under liquidation

is approximately Rs 404 Crores. However, despite this submission

of the Petitioner-Bank, the Trial Court refused to revisit the

impugned order or to modify the same. We are of the view that out

of the several factors to be taken into consideration while

quantifying the remuneration of the Court Commissioner, the Trial

Court must certainly pay heed to the financial position of the

Applicant Bank and balance it with the efforts required by the Court

commissioner to take possession of the secured assets. In the facts of

the present case, we are of the view that the amount of Rs.

15,00,000/- is rather excessive and requires to be modified to Rs.

2,00,000/- [Rupees Two Lakhs].




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     We must also clarify that in the event that Smt. Sneha Vinod

Kamble, Advocate, who is appointed as the Court Commissioner

expresses   inability   to   discharge   her   function   as   a   Court

Commissioner, the Trial Court is at liberty to appoint another

competent person as the Court Commissioner to give effect to the

Application u/s 14 of SARFAESI Act, 2002 preferred by the

Petitioner Bank.



7.   With these observations, the Petition is allowed. Rule is made

absolute.




ASHISH S. CHAVAN, J.                           BHARATI DANGRE, J.




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