1 of 3 909-wp-13635-23 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 13635 OF 2023 Suresh Pandurang Pansare & Ors. ..Petitioners Versus The State of Maharashtra, Department of Co- operative & Ors. ..Respondents __________ Mr. Kishor Patil a/w. Kapil P. Shetye for Petitioners. Mrs. V. R Raje, AGP for State/ Respondent Nos.1,2 & 6. Mr. Sarang S. Aradhye a/w. Gauri Velankar for Respondent Nos.3 & 4. __________ CORAM : AMIT BORKAR, J. DATE : 14 NOVEMBER 2025 PC : 1. The present writ petition calls for examination of a narrow but important question. The petitioners have invoked Sub Rule 19 of Rule 107 of the Maharashtra Cooperative Societies Rules. Their case is that the attachment ordered by the Special Recovery Officer exceeds the limits of the interest held by the borrower. They submit that the borrower is the developer. They contend that the attachment cannot travel beyond the restricted rights conferred on the developer under the development arrangement between the parties. 2. The Revisional Authority did not accept the objection raised by the petitioners. It rejected the application without considering the true nature of the rights created under the Gokhale VINOD BHASKAR GOKHALE Digitally signed by VINOD BHASKAR GOKHALE Date: 2025.11.14 15:06:52 +0530 2 of 3 909-wp-13635-23 development agreements and the corresponding limits on the developer’s title. The petitioners have therefore approached this Court. 3. I have examined the record. The parties executed a Development Agreement dated 1 October 2008. The petitioners agreed to permit development of the property described in paragraph 1 of that agreement. The agreement created a limited right in favour of the developer. The clause dealing with mortgage is clear. It allows the developer to raise funds. It restricts the mortgage to the extent of the developer’s share. The petitioners retained their entitlement to 21 units in Wing E on the first to fourth floors. Each unit measures 600 square feet. The Development Agreement dated 26 February 2015 further affirms this position. Schedule B of the said agreement describes these 21 units with precision. These rights are definite. They are not dependent on any contingency. They form part of the consideration for permitting development. 4. The Power of Attorney dated 26 February 2015 authorises the developer to mortgage the property for raising funds for construction. This authority is not absolute. The petitioners have not divested their underlying rights. Their right to seek specific performance of the obligations under both development agreements survives. No clause in the Power of Attorney defeats their right to receive the 21 units. No clause 3 of 3 909-wp-13635-23 enlarges the developer’s share beyond what was contractually agreed. 5. The law recognises that a mortgagee steps into the shoes of the mortgagor. The bank can claim only what the developer could lawfully offer. The developer could offer a mortgage only to the extent of his share in the project. The bank can therefore claim attachment only to that extent. The attachment cannot encroach upon the petitioners’ earmarked units. It cannot override their proportionate share in the land which flows from the agreements. This principle is well settled. A mortgage cannot transfer a higher right than what the mortgagor holds. 6. In view of the above, the petition deserves to be disposed of with a clarification. The attachment under Sub Rule 19 of Rule 107 shall operate only to the developer’s share. It shall not affect the petitioners’ contractual right to receive the 21 units described in Schedule B of the Development Agreement dated 26 February 2015. Their proportionate right in the land shall also remain intact. Their right to seek specific performance of the development agreements remains unaffected by the attachment. The authority executing the attachment shall confine its action to the developer’s share alone. 7. The petition stands disposed of in these terms. (AMIT BORKAR, J.)