Dainik Tarun Bharat Pvt. Ltd. vs Shree Shahu Co-Op. Bank Ltd. And … on 30 July, 2004

Bombay High Court
Dainik Tarun Bharat Pvt. Ltd. vs Shree Shahu Co-Op. Bank Ltd. And … on 30 July, 2004
Equivalent citations: 2005 (1) BomCR 359
Author: A Khanwilkar
Bench: A Khanwilkar


JUDGMENT

A.M. Khanwilkar, J.

1. Heard Counsel appearing for the parties. Rule. Rule made returnable forthwith by consent.

Mr. Kumbhakoni waives notice for Respondent No.

1. Mr. Godbole waives notice for Respondent No.

2. Mr. Dalvi waives notice for Respondent No.

3. Mr. Desai waives notice for Respondents Nos.

4, 5 and 6. As short question is involved, petition taken up for final disposal forthwith by consent.

2. Briefly stated, Respondent No. 2 filed dispute in the Co-operative Court for recovery of certain amounts from Respondents Nos. 4 to 6. In that dispute, it was asserted that the immovable property in question owned by Respondents Nos. 4 to 6 was mortgaged to Respondent No. 2 disputant. During the pendency of the dispute. therefore, Respondent No. 2 prayed that Respondents Nos. 4 to 6 be restrained from creating third party rights in respect of the said property. That injunction was granted at the instance of and in favour of Respondent No. 2. However, during the pendency of the dispute, Respondents Nos. 4 to 6 were able to persuade Respondent No. 2 Bank to permit them to dispose of the said property so that the sale proceeds can be made over to Respondent No. 2 Bank for discharging the liability to the extent of sale proceeds so recovered. Respondent No. 2 Bank agreed for that arrangement. It is only thereafter Respondents Nos. 4 to 6 proceeded to dispose of the said godown in favour of one Dainik Tarun Bharat Pvt. Ltd.- Petitioner herein. After the transaction was virtually concluded, the said third party made an application before the Co-operative Court in substance for permitting it to occupy the said godown. It is relevant to note that Disputant Respondent No. 2 Bank gave no objection for allowing the said application and, in fact, supported the said application. In that sense, the Disputant Respondent No. 2 invited the order in terms of relief claimed by the Petitioner in view of the subsequent developments which had taken place with their consensus. The Co-operative Court, nonetheless, rejected the said application for the reasons set out in its order dated 30th June 2003. Against that decision, the third party, Daily Tarun Bharat Pvt. Ltd. – Petitioner herein, preferred appeal before the Maharashtra State Co-operative Appellate Tribunal, Mumbai, Branch at Pune, being Appeal No. 124 of 2003. That appeal has been dismissed by the Co-operative Appellate Court by judgment and order dated July 29, 2003. This concurrent view taken by the two Courts below on the application taken out by the third party for permitting it to enjoy the disputed property having been purchased from Respondents Nos. 4 to 6 is subject matter of challenge in this writ petition.

3. The Petitioner, who had filed the said application as third party, contends that neither the owner of the property, nor Respondent No. 2 Bank, which is the disputant, who had succeeded in getting injunction order against Respondents Nos. 4 to 6 have any objection for allowing the Petitioner third party to enjoy the property, which has been purchased in due consultation with the concerned persons. It is further submitted that in any case, the godown is admeasuring 12*000 sq.ft., whereas the goods (movable property) of Respondents Nos. 4 to 6, which are lying in the godown, will not occupy more than 2000 sq. ft. of area for storage and the Petitioner is willing to make necessary arrangement by setting apart such area with all necessary precautions to store the said goods.

4. Mr. Godbole appearing for Respondent No. 2 and Mr. Desai for Respondents Nos. 4 to A have supported this petition as well as the cause of the Petitioner. This petition is opposed only by Respondent No. 1. Mr. Kumbhakoni for Respondent No. 1, contends that since injunction was operating against Respondents Nos. 4 to A restraining them from disposing of the subject godown, the transaction entered into by them with the Petitioner will have to be treated as non-est. He has placed reliance on the decision of the Apex Court in the case of Surjit Singh and Ors. v. Harbans Singh and Ors.” , in particular exposition contained in paragraphs 3 and 4 thereof. According to him, since the subject transaction is invalid, the Petitioner is not entitled to get possession of the disputed property and, therefore, no fault can be found with the conclusion reached by the two Courts below.

5. Having considered the rival submissions, to my mind, the objection taken by Respondent No. 1 overlooks the basic fact that the injunction against Respondents Nos. 4 to 6 was granted by the Court on the application preferred by Respondent No. 2 disputant. That injunction will operate and enure only in favour of the disputant Respondent No. 2 herein. Taking advantage of that injunction, some other party such as the Respondent No. 1 who has been impleaded as Respondent to the dispute at a later stage cannot contend that the transaction entered into by Respondents Nos. 4 to 6 with the Petitioner is invalid. The transaction is voidable at the instance of the disputant Respondent No. 2 herein in whose favour the injunction would enure. As mentioned earlier, in the present case, Respondent No. 2 is supporting the cause of the Petitioner. The Respondent No. 2 has filed the dispute for recovery of certain amounts; and the godown in question admittedly is mortgaged to Respondent No. 2. To secure recovery of the claim amount, injunction was sought in respect of the subject property and since the sale proceeds of the godown have been made available to Respondent No. 2 for defraying the liability of Respondents Nos. 4 to 6, which is the basis on which Respondent No. 2 has acceeded to the request of Respondents Nos. 4 to 6 to permit them to dispose of the godown in favour of the Petitioner, Respondent No. 1 cannot be heard to object to such transaction having been transacted between the Petitioner and Respondents Nos. 4 and 6. This is so because the Respondent No. 2 Bank will have prior claim over the said property being a mortgaged property. And the entire sale proceeds recovered from the sale of the said property has been made over to the Respondent No. 2. In peculiar facts of the present case, it is not possible to assume that the said transaction was non est. The decision of the Apex Court referred to above will be of no avail in the facts of the present case. Viewed in this perspective the objection taken on behalf of Respondent No. 1 is devoid of any substance. I also find force in the argument of Mr. Godbole that the observations made in the decision of the Supreme Court in the case of Surjit Singh (supra) is in the context of the facts stated in para 2, wherein it is observed that the parties were restrained from dealing with the property during the pendency of the partition suit and preliminary decree was already passed. In the present case, Respondent No. 2 Disputant is claiming right in respect of the said godown and had sought injunction against that property only with a view to secure its interest of recovering the outstanding amount from Respondents Nos. 4 to 6. Indeed, Respondent No. 1 also claims that Respondents Nos. 4 to 6 are liable to pay certain amounts to Respondent No. 1. It is always open to Respondent No. 1 to take recourse to such remedy for recovery of its outstanding amounts as may be permissible by law, but it is not possible to accept the submission of Respondent No. 1 to stall the transaction entered into between Respondents Nos. 4 to 6 and the Petitioner, with the consent of Respondent No. 2. The Respondent No. 1 had not taken any action for relief of injunction in respect of the godown property of Respondents Nos. 4 to 6. In absence whereof, it is not open for Respondent No. 1 to question the subject transaction. In the circumstances, the decisions rendered by the two Courts below will have to be set aside and are accordingly set aside and, instead, the application preferred by the Petitioner, Exhibit 32 in CCS No. 1414/2001, is granted. The Court Commissioner, who has been appointed by the trial Court, to take necessary steps for shifting the movable goods belonging to Respondents Nos. 4 to 6, which are in his custody to some other appropriate secured place, so as to ensure that the said goods are not damaged, destroyed or affected in any manner. That be done as expeditiously as possible and preferably within two months from today, subject to such other or further orders to be passed by the Court below. Petition disposed of on the above terms. No order as to costs.

6. At this stage, Mr. Kumbhakoni prays for stay of this order on the ground that his clients desire to take the matter in appeal. That request seems to be reasonable. Operation of this order is stayed for a period of four weeks from today.

7. All concerned to act on the copy of this order duly authenticated by the Court Stenographer of this Court.

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