WP- 4734-2026.doc Rohit Ghuge IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION 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. 1/7 ROHIT RAMDAS GHUGE Digitally signed by ROHIT RAMDAS GHUGE Date: 2026.10.01 11:08:36 +0530 WP- 4734-2026.doc 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 2/7 WP- 4734-2026.doc 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 3/7 WP- 4734-2026.doc 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 4/7 WP- 4734-2026.doc 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 5/7 WP- 4734-2026.doc 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]. 6/7 WP- 4734-2026.doc 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. 7/7