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OJCA/116/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 116 of 2010
In
COMPANY
PETITION No. 252 of 2008
=========================================================
BHAGYALAXMI
CO-OPERATIVE BANK LTD ( IN LIQUIDATION ) - Applicant(s)
Versus
TRIBHUVAN
RASAYAN LIMITED & 1 - Respondent(s)
=========================================================
Appearance :
MR
NV GANDHI for
Applicant(s) : 1,
MR UDAYAN P VYAS for Respondent(s) : 1,
MR TS
NANAVATI for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 08/03/2010
ORAL ORDER
Heard
Shri Sunit Shah, learned advocate appearing on behalf of the
applicant- third party and Shri Udayan P.Vyas, learned advocate
appearing on behalf of respondent No.1- original respondent-Company
and Shri Bomi Shethana, learned advocate for Shri T.S.Nanavati,
learned advocate appearing on behalf of respondent No.2- original
petitioner. With the consent of learned advocates appearing on
behalf of the respective parties, present application is taken up
for final hearing today.
Present
Summons has been taken out by applicant- Bhagyalaxmi Co. Op. Bank
Ltd. (in liquidation) for an appropriate clarification and/or
direction that orders passed by this Court from time to time in
present petition do not come in the way of applicant to take
physical possession of the property being Plot No.1/14 GIDC, Near
Saij Railway Crossing Tal. Kalol, District: Gandhinagar with the
help of Police protection.
It
is the case on behalf of the applicant that learned Board of
Nominees at Ahmedabad has passed an award in favour of the
applicant-Bank and against respondent No.1-Company in Lavad Case
No.617 of 1998 awarding a sum of Rs.36,20,762/- and interest @ 23%
with the cost of Rs.5000.00. It is submitted that while passing the
said award, learned Board of Nominees also confirmed the injunction
and attachment (granted earlier) vide order dated 22.12.1998 till
satisfying the said amount of award by the applicant-Bank. It is
further submitted that learned Board of Nominees at Ahmedabad has
also passed an award in favour of applicant-Bank in Lavad Case
Nos.618 of 1998 and 619 of 1998 also. It is submitted that
subsequently the said Bank went into liquidation. It is the case on
behalf of the applicant-Bank that Recovery Officer of the Bank
excising her powers U/s.159 of the Gujarat Co.Op. Societies Act
pursuance to the said award passed in Lavad Case No.617 of 1998
passed an attachment order of the said property on 17.11.2008 and
had taken symbolic possession of the said property and issued public
notice for taking symbolic possession in Gujarati Daily Newspaper on
17.5.2009. It is submitted that only due to pendency of the present
winding up petition being Company Petition No.252 of 2008, applicant
is not in a position to get physical possession of the property in
question. Therefore, it is requested to clarify and/or modify the
earlier order and permit the applicant-Bank to take symbolic
physical possession of the property in question without prejudice to
the rights and contentions of the respective parties and/or other
creditors and without claiming any equity.
Shri
Udayan P.Vyas, learned advocate appearing on behalf of the
respondent No.2 original respondent-Company has stated that if
by making suitable observations and protecting the rights of the
respective parties, if suitable order is passed, he has no
objection.
Shri
Bomi Shethana, learned advocate appearing on behalf of the original
petitioner has requested to pass appropriate order.
Having
heard the learned advocates appearing for the respective parties and
considering the fact that the Company Petition No.252 of 2008 has
been admitted which is for winding up of respondent No.1-Company and
is fixed for final hearing, and considering the fact that in the
meantime, i.e. there is already award in favour of the
petitioner-Bank and against respondent No.1-Company passed by the
learned Board of Nominees passed in Lavad Case No.617 of 1998
awarding the sum of Rs.36,20,762/- along with interest @ 23% and
further award have been passed in favour of the applicant-Bank in
Lavad Case No.618 of 1998 and 619 of 1998, and in view of the order
of attachment passed by the learned Board of Nominees earlier,
applicant-Bank is hereby permitted to take possession of the
disputed property in question in accordance with law and on merits
and after following due procedure of law and pendency of the present
Company Petition shall not come in the way of applicant-Bank in
taking such a possession. However, it is observed and clarified and
as agreed by the learned advocate appearing on behalf of the
applicant that such a taking over of the possession by the applicant
shall be symbolic physical possession only and the same shall be
without prejudice to the rights and contentions of the respective
parties, more particularly, other creditors of the respondent
No.1-Company, and on getting such possession, the petitioner shall
not claim any equity solely on getting the symbolic physical
possession and/or preferential claim over the other secured creditor
and/or other creditors. At the time of taking over the possession,
the applicant-Bank shall inform the Official Liquidator attached
with the Gujarat High Court as well as the representative of the
respondent No.1-Company and necessary panchnama / inventory be made
at the time of taking over possession of the applicant-Bank in
presence of the representative of the Official Liquidator attached
with this Court and as well as representative of respondent
No.1-Company and the aforesaid would be subject to the further order
that may be passed by this Court.
With
this present application is disposed of and/or allowed to the
aforesaid extent.
(M.R.SHAH,
J.)
(ashish)
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