{"id":25466,"date":"2011-03-28T00:00:00","date_gmt":"2011-03-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajn-00-os-apeal106-vs-official-assignee-on-28-march-2011"},"modified":"2015-05-04T00:31:39","modified_gmt":"2015-05-03T19:01:39","slug":"ajn-00-os-apeal106-vs-official-assignee-on-28-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajn-00-os-apeal106-vs-official-assignee-on-28-march-2011","title":{"rendered":"Ajn 00-Os-Apeal106 vs Official Assignee on 28 March, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Ajn 00-Os-Apeal106 vs Official Assignee on 28 March, 2011<\/div>\n
Bench: Ranjana Desai, R. V. More<\/div>\n
    AJN                                             00-OS-APEAL106.10\n                                  1\n\n          IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                          \n              ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                  \n                   APPEAL NO.106 OF 2010\n                             IN\n               NOTICE OF MOTION NO.67 OF 2009\n                             IN\n\n\n\n\n                                                 \n             INSOLVENCY PETITION NO.46 OF 2002\n\n\n    Re. 1. B.D. Agarwal                   )\n\n\n\n\n                                     \n        2. Mrs. Sangeeta B. Agarwal       ) ...     Insolvents\n\n\n    EX-PARTE:\n                        \n    Ghisalal C. Shah of Mumbai,           )\n                       \n    Indian Inahbitant, residing at 173,   )\n    Dubash Building, 1st floor, Room      )\n    No.16, V.P. Road, Mumbai - 400        )\n    004.                                  )...        Petitioning\n        \n\n\n                                                            Creditor\n     \n\n\n\n    Krystal Stone Exports Limited,        )\n    through its Director Mr. Popat Lal    )\n    Kanadia,    residing    at   115,     )\n\n\n\n\n\n    Saraswati Sadan, Keshavji Nayak       )\n    Road, Chinch Bunder, Mumbai -         )\n    400 009.                              ) ...   Appellants\n                                              (Orig. Applicants)\n\n\n\n\n\n               Versus\n\n    1.    Official Assignee, High Court, )\n          Bombay.                        )\n    2.    G.C. Shah, the abovenamed )\n          Petitioning Creditor.     ) ...    Respondents\n                                      (Orig. Respondents).\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 17:08:52 :::\n     AJN                                             00-OS-APEAL106.10\n                                  2\n\n                                 WITH\n\n\n\n\n                                                                          \n                NOTICE OF MOTION NO.68 OF 2009\n                              IN\n\n\n\n\n                                                  \n              INSOLVENCY PETITION NO.46 OF 2002\n\n    Ref: As above.\n\n\n\n\n                                                 \n    EX-PARTE:\n    Ghisalal C. Shah                      )\n    Address as above.                     )...        Petitioning\n                                                            Creditor\n\n\n\n\n                                     \n                    And\n                        \n    Central Bank of India, Tonk Road,     )\n    Branchy, B-19\/20, Rama Enclave,       )\n                       \n    Shopping Centre, Lalkothi, Area       )\n    Tank Road, Jaipur, Rajasthan.         ) ...       Applicants\n\n                    And\n        \n\n\n    Official Assignee,    High    Court, )\n     \n\n\n\n    Bombay.                              ) ...        Respondent\n\n                                 WITH\n\n\n\n\n\n          REPORT NO.8 OF 2009 of the Official Assignee\n                             IN\n             INSOLVENCY PETITION NO.46 OF 2002\n\n\n\n\n\n    Re. 1. B.D. Agarwal                   )\n        2. Mrs. Sangeeta B. Agarwal       ) ...     Insolvents\n\n               Versus\n\n    EX-PARTE:\n    Ghisalal C. Shah                      )\n    Address as stated above.              )...        Petitioning\n                                                            Creditor\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 17:08:52 :::\n     AJN                                         00-OS-APEAL106.10\n                                 3\n\n\n\n\n                                                                      \n    Mr. S.A. Tawate for the appellants.\n\n\n\n\n                                              \n    Mr. O.A. Das for Central Bank of India.\n\n    Mr. Kishore Jain i\/b Nisha Parmar for the Official Assignee.\n\n\n\n\n                                             \n    Mr. Y.C. Parikh, Official Assignee present in the court.\n\n\n                    CORAM: MRS. RANJANA DESAI &\n\n\n\n\n                                    \n                           RANJIT MORE, JJ.\n<\/pre>\n
                    DATE ON WHICH THE JUDGMENT IS
\n                    RESERVED : 4TH MARCH, 2011.\n<\/p>\n
                    DATE ON WHICH THE JUDGMENT IS
\n                    PRONOUNCED: 28TH MARCH, 2011.\n<\/p>\n
    JUDGMENT:- (Per Smt. Ranjana Desai, J.)<\/p>\n
    1.    Admit. The respondents waive service. By consent<\/p>\n
    of the parties, taken up for hearing, forthwith.\n<\/p>\n
    2.    The appellants have challenged in this appeal order<\/p>\n
    dated 1\/12\/2009 passed by learned Single Judge of this<\/p>\n
    court. By the impugned order, learned Single Judge has<\/p>\n
    disposed of Notice of Motion No.67 of 2009, Notice of<\/p>\n
    Motion No.68 of 2009 and Report No.8 of 2009 submitted<\/p>\n
    by the Official Assignee.    The present appeal revolves<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                         00-OS-APEAL106.10
\n                                 4<\/span><\/p>\n
    around Flat No.305, Blase View ‘A’ Co-operative Housing<\/p>\n
    Society   Limited,   Matherpada   Road,     Amboli,          Andheri<\/p>\n
    (West), Mumbai – 400 058, (for short, “the said flat”).\n<\/p>\n
    3.    Notice of Motion No.67 of 2009 was taken out by the<\/p>\n
    appellants – Krystal Stone Exports Limited, inter alia,<\/p>\n
    praying that the Official Assignee be directed to restore<\/p>\n
    the possession of the said flat to the appellants.              In the<\/p>\n
    affidavit in support of the notice of motion filed by one<\/p>\n
    Popat Lal Kanadia, who claims to be the Director of the<\/p>\n
    appellants, it is stated that the said flat is owned by Mrs.<\/p>\n
    Sangeeta Agarwal; that it is mortgaged to Central Bank of<\/p>\n
    India (for convenience, “Central Bank”), who is the<\/p>\n
    secured creditor of the appellants; that the said flat is<\/p>\n
    given to the appellants by Mrs. Sangeeta Agarwal on a<\/p>\n
    lease agreement on 11\/4\/1996 for a period of 15 years<\/p>\n
    and that the said agreement is in force upto 10\/4\/2011. It<\/p>\n
    is further stated that, therefore, the Official Assignee had<\/p>\n
    no reason to take physical possession of the said flat<\/p>\n
    because it falls outside the purview of the Presidency<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                       00-OS-APEAL106.10
\n                                5<\/span><\/p>\n
    Towns Insolvency Act, 1909. It is further stated that the<\/p>\n
    said flat being a mortgaged property, cannot be sold or<\/p>\n
    used by the Official Assignee for any reason whatsoever;\n<\/p>\n
    that the secured creditor who is a bank has not<\/p>\n
    relinquished its charge on the said flat which is mortgaged<\/p>\n
    with the bank and, therefore, the Official Assignee has no<\/p>\n
    right to take possession thereof. A categorical statement<\/p>\n
    is made in the affidavit that the appellants were in lawful<\/p>\n
    possession of the said flat and by putting its own lock on<\/p>\n
    the said flat on 9\/9\/2009, the Official Assignee has<\/p>\n
    disturbed the appellants’ lawful possession.\n<\/p>\n
    4.    Notice of Motion No.68 of 2009 was taken out by the<\/p>\n
    Central Bank having its Branch Office at Jaipur, Rajasthan<\/p>\n
    praying that the Official Assignee be directed to hand over<\/p>\n
    the said flat to the Central Bank in order to sell the same<\/p>\n
    under the Securitization and Reconstruction of Financial<\/p>\n
    Assets and Enforcement of Security Interest Act, 2002 (for<\/p>\n
    short, the SARFAESI Act”). It is also prayed that the<\/p>\n
    Official   Assignee   may   be   restrained     from        selling,<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                                00-OS-APEAL106.10
\n                                      6<\/span><\/p>\n
    alienating, dealing with and creating any third party right<\/p>\n
    in the said flat. In the affidavit in support of this notice of<\/p>\n
    motion      filed   by   one     Narendra    Khandelwal,               Senior<\/p>\n
    Manager, Central Bank, it is stated that Mrs. Sangeeta<\/p>\n
    Agarwal     and her husband           Bansi Dhar         Agarwal          are<\/p>\n
    declared as Insolvents pursuant to the order passed by<\/p>\n
    this court and pursuant to the said order, the Official<\/p>\n
    Assignee has taken over possession of the said flat. It is<\/p>\n
    further stated that the Central Bank has given credit<\/p>\n
    facilities to the appellants and in order to secure the said<\/p>\n
    credit facilities, the said flat has been mortgaged by Mrs.<\/p>\n
    Sangeeta Agarwal in favour of Central Bank. It is further<\/p>\n
    stated that the parties have not paid the outstanding dues<\/p>\n
    and, their accounts have become Non Performing Assets<\/p>\n
    (for short, “the NPA”).           It is further stated that the<\/p>\n
    Central Bank had filed original application in the Debts<\/p>\n
    Recovery      Tribunal    (for    short,    “the     DRT”)         against<\/p>\n
    Insolvents at Jaipur being Original Application No.234 of<\/p>\n
    2002 to recover a sum of Rs.3,91,44,184.48 with further<\/p>\n
    interest.    The said original application was decreed on<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                       00-OS-APEAL106.10
\n                                 7<\/span><\/p>\n
    31\/3\/2006.   The Central Bank filed an execution petition<\/p>\n
    and a demand notice came to be issued to the Judgment<\/p>\n
    Debtors.   Pursuant to the order passed by the Recovery<\/p>\n
    Officer, the Central    Bank     is stated to have taken<\/p>\n
    possession of the said flat from the Official Assignee. The<\/p>\n
    Insolvents preferred an appeal before the Debt Recovery<\/p>\n
    Appellate Tribunal (for short, “the DRAT”), Delhi, against<\/p>\n
    the ex-parte decree and the DRAT set aside the ex-parte<\/p>\n
    decree and directed the DRT to rehear the matter which is<\/p>\n
    pending before the DRT, Jaipur.      Pursuant to the order<\/p>\n
    passed by the Recovery Officer dated 24\/8\/2009, the<\/p>\n
    Central Bank returned the possession of the said flat to<\/p>\n
    the Official Assignee. It is further stated that pending the<\/p>\n
    DRT proceedings, the Central Bank initiated action under<\/p>\n
    the SARFAESI Act. It issued notice under Section 13(2) of<\/p>\n
    the SARFAESI Act, which was followed by notice under<\/p>\n
    Section 13(4) thereof.      Since, the said flat was in<\/p>\n
    possession of the Official Assignee, the Central Bank<\/p>\n
    informed the Official Assignee about the action taken<\/p>\n
    under the SARFAESI Act and requested the Official<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                         00-OS-APEAL106.10
\n                                 8<\/span><\/p>\n
    Assignee to hand over possession of the said flat to the<\/p>\n
    Central Bank in order to sell the same.            However, the<\/p>\n
    Official Assignee did not respond to the Central Bank’s<\/p>\n
    letter dated 19\/9\/2009 to the above effect. According to<\/p>\n
    the Central Bank, as on 2\/10\/2009, when the affidavit was<\/p>\n
    filed the outstanding dues of the Central Bank against the<\/p>\n
    Insolvents are more than Rs.4 crores. Therefore, Notice of<\/p>\n
    Motion No.68 of 2009 was taken out by the Central Bank<\/p>\n
    praying that the Official Assignee be directed to hand over<\/p>\n
    possession of the said flat to them.\n<\/p>\n
    5.    In his report being Report No.8 of 2009, the Official<\/p>\n
    Assignee has stated that Mrs. Sangeeta Agarwal and her<\/p>\n
    husband Bansi Dhar Agarwal             were adjudicated as<\/p>\n
    Insolvents by order dated 3\/6\/2003 and, therefore, the<\/p>\n
    Official Assignee took symbolic possession of the said flat<\/p>\n
    standing in the name of Mrs. Sangeeta Agarwal.                        On<\/p>\n
    10\/1\/2008, DRT, Jaipur in Original Application No.25 of<\/p>\n
    2006 filed by the Central Bank, directed that the symbolic<\/p>\n
    possession of the said flat be handed over to the receiver<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                         00-OS-APEAL106.10
\n                                   9<\/span><\/p>\n
    of the DRT.     Accordingly, the possession was handed over<\/p>\n
    to the receiver of the DRT on 22\/1\/2008. By order dated<\/p>\n
    24\/8\/2009, DRT, Jaipur, again directed that the possession<\/p>\n
    of the said flat be handed over to the Official Assignee.\n<\/p>\n
    The Official Assignee has submitted that Lease Agreement<\/p>\n
    dated      11\/4\/1996,   purportedly   entered     into      by      and<\/p>\n
    between the Insolvent Mrs. Sangeeta Agarwal and M\/s.\n<\/p>\n
    Krystal Stone Export Limited under which Mrs. Sangeeta<\/p>\n
    Agarwal has leased out the said flat to the Appellants is<\/p>\n
    not registered.    The Official Assignee has stated that as<\/p>\n
    per Clause 10 of the terms and conditions of the said<\/p>\n
    Agreement, in case, the lessee does not perform and\/or<\/p>\n
    carry out the terms and conditions of the agreement or<\/p>\n
    commits defaults in payment of rent, the lessor shall be<\/p>\n
    entitled    to terminate    the    agreement.       The       Official<\/p>\n
    Assignee has further stated that as per the xerox copies<\/p>\n
    of the Society’s letter dated 10\/1\/2001 and 15\/2\/2001, the<\/p>\n
    lessee has not paid the Society’s dues and is in arrears.\n<\/p>\n
    It is the Official Assignee’s case that in view of the fact<\/p>\n
    that the order of adjudication is passed by this court<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                      00-OS-APEAL106.10
\n                                   10<\/span><\/p>\n
    against the Insolvent Mrs. Sangeeta Agarwal, the Official<\/p>\n
    Assignee has stepped into the shoes of the said Insolvent<\/p>\n
    and as assignee of the assets and estates of the Insolvent<\/p>\n
    – Mrs. Sangeeta Agarwal, he has decided to terminate<\/p>\n
    Lease Agreement dated 11\/4\/1996. The Official Assignee<\/p>\n
    has, therefore, prayed that the court may pass an order<\/p>\n
    authorizing the Official Assignee to terminate the said<\/p>\n
    lease agreement.\n<\/p>\n
                        igThe Official Assignee has further<\/p>\n
    prayed that he may be permitted to hold the possession<\/p>\n
    of the said flat which is handed over to him by the<\/p>\n
    receiver of the DRT, Jaipur.\n<\/p>\n
    6.    By the impugned order, learned Single Judge has<\/p>\n
    ordered the Official Assignee to hand over the said flat to<\/p>\n
    the Central Bank because the Central Bank being a<\/p>\n
    secured creditor, has initiated action under the SARFAESI<\/p>\n
    Act and has issued notice under Section 13(2) of the<\/p>\n
    SARFAESI Act and has also issued notice of possession<\/p>\n
    dated 16\/2\/2009.\n<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span><\/p>\n
     AJN                                       00-OS-APEAL106.10\n                                11<\/span>\n\n    7.    So far   as the appellants'    notice of motion is\n\n\n\n\n                                                                    \n<\/pre>\n
    concerned, learned Single Judge has observed that the<\/p>\n
    said lease agreement is entered into by Insolvent No.2<\/p>\n
    Mrs. Sangeeta Agarwal, who is the wife of Insolvent No.1<\/p>\n
    Bansi Dhar Agarwal, the director of the company; that the<\/p>\n
    lease agreement is not registered and that the lease<\/p>\n
    rental is only Rs.1\/- per month. It is further observed that<\/p>\n
    since the Official Assignee has taken only symbolic<\/p>\n
    possession of the said flat, if the appellants have any<\/p>\n
    grievance, the appellants will have to take recourse<\/p>\n
    according to law. Learned Single Judge has further<\/p>\n
    observed that upon the order of adjudication, the property<\/p>\n
    has vested in the Official Assignee. The Official Assignee<\/p>\n
    was, therefore, granted permission to terminate the lease<\/p>\n
    agreement.\n<\/p>\n
    8.    Written arguments have been filed on behalf of the<\/p>\n
    appellants.    Mr. Tawate, counsel for the appellants has<\/p>\n
    reiterated the submissions incorporated in the written<\/p>\n
    arguments.     He submitted that the Official Assignee’s<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                       00-OS-APEAL106.10
\n                               12<\/span><\/p>\n
    report dated 30\/9\/2009 states that he had merely taken<\/p>\n
    symbolic possession of the said flat.   Counsel submitted<\/p>\n
    that learned Single Judge directed that possession of the<\/p>\n
    said flat be handed over to the Central Bank by the<\/p>\n
    Official Assignee.    The Official Assignee though had<\/p>\n
    stated in his report that he had taken symbolic possession<\/p>\n
    of the said flat, he handed over physical possession<\/p>\n
    thereof to the Central Bank by breaking open the lock of<\/p>\n
    the said flat.   Thus, the possession was handed over<\/p>\n
    without following due process of law. Counsel submitted<\/p>\n
    that by handing over possession of the said flat to the<\/p>\n
    Central Bank, the Insolvency Court has virtually passed an<\/p>\n
    eviction order which it could not have passed because<\/p>\n
    only the Small Causes Court has exclusive jurisdiction to<\/p>\n
    pass such an order. In this connection, counsel relied on<\/p>\n
    the judgment of this court in Ramesh Kumar Jhamb &<\/p>\n
    Anr.   v.   Official Assignee, High Court, Bombay &<\/p>\n
    Ors. AIR<\/a> 1993 Bom. 374. Counsel submitted that the<\/p>\n
    Official Assignee has not filed any reply to Notice of<\/p>\n
    Motion No.67 of 2009 taken out by the appellants and,<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                      00-OS-APEAL106.10
\n                               13<\/span><\/p>\n
    therefore, the averments made by the appellants have<\/p>\n
    been admitted.   Counsel submitted that learned Single<\/p>\n
    Judge dismissed Notice of Motion No.67 of 2009 without<\/p>\n
    giving any valid reasons for the dismissal.               Counsel<\/p>\n
    submitted that the Central Bank has not produced any<\/p>\n
    evidence to substantiate its contention that the said flat<\/p>\n
    was mortgaged to it and, therefore, the finding of learned<\/p>\n
    Single Judge that the bank is a secured creditor is not<\/p>\n
    supported by any evidence and is patently erroneous.\n<\/p>\n
    Counsel submitted that permission granted to terminate<\/p>\n
    the lease agreement by learned Single Judge is illegal<\/p>\n
    because whether the lease agreement is valid or not can<\/p>\n
    only be decided by the Small Causes Court.                Counsel<\/p>\n
    submitted that the Central Bank did not make the<\/p>\n
    appellants party to Notice of Motion No.68 of 2009 though<\/p>\n
    the appellants were lawful occupants of the said flat and,<\/p>\n
    therefore, the said notice of motion ought to have been<\/p>\n
    dismissed for misjoinder of the party. Counsel submitted<\/p>\n
    that the impugned order passed by learned Single Judge<\/p>\n
    who was the Insolvency Judge granting possession of the<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                        00-OS-APEAL106.10
\n                                  14<\/span><\/p>\n
    said flat to the Central Bank does not fall under the<\/p>\n
    framework of insolvency proceedings and, therefore,<\/p>\n
    learned Single Judge should not have entertained Notice<\/p>\n
    of Motion No.68 of 2009 filed by a stranger to the<\/p>\n
    insolvency proceedings.       Counsel relied on the order<\/p>\n
    passed   by   DRT,   Jaipur   dated   5\/11\/2009.            Counsel<\/p>\n
    submitted that the Central Bank cannot file two recovery<\/p>\n
    proceedings one at DRT, Jaipur and another at Bombay.\n<\/p>\n
    Counsel also relied on judgment of the Andhra Pradesh<\/p>\n
    High Court in Khaja Atheequallah & Ors.                v.     Union<\/p>\n
    Bank of India, AIR 2010 AP 65. Counsel submitted that<\/p>\n
    in the circumstances, the impugned order be set aside.\n<\/p>\n
    9.    We have permitted learned counsel Mr. Jain to<\/p>\n
    appear for the Official Assignee and assist us.              He has<\/p>\n
    accordingly assisted us. Mr. Das, learned counsel for the<\/p>\n
    Central Bank and Mr. Jain, learned counsel for the Official<\/p>\n
    Assignee submitted that no interference is necessary with<\/p>\n
    the impugned order because it is perfectly legal and<\/p>\n
    justified. Written submissions have been filed by Mr. Jain.\n<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span><\/p>\n
     AJN                                        00-OS-APEAL106.10\n                                15<\/span>\n\n    We have carefully perused the same.            Compilation of\n\n\n\n\n                                                                     \n<\/pre>\n
    several orders passed in respect of the Insolvents have<\/p>\n
    been produced by Mr. Jain as directed by this court. We<\/p>\n
    have carefully perused these orders.\n<\/p>\n
    10. Admittedly, learned Single Judge of this court by his<\/p>\n
    order dated 3\/6\/2003 adjudged B.D. Agarwal, Director of<\/p>\n
    the appellants and his wife Sangeeta Agarwal Insolvents.\n<\/p>\n
    As per provisions of Section 17 of the Presidency Towns<\/p>\n
    Insolvency Act, 1909, all the assets and properties of the<\/p>\n
    Insolvents vested in the Official Assignee on that day.\n<\/p>\n
    11. The affidavit filed on behalf of the Central Bank by its<\/p>\n
    Senior Manager – Mr. Khandelwal discloses that the<\/p>\n
    appellants have availed of various credit facilities from the<\/p>\n
    Central Bank, Tank Road Branch, Jaipur and the said flat<\/p>\n
    has been mortgaged by Insolvent Mrs. Sangeeta Agarwal<\/p>\n
    to the Central Bank.   It must be stated here that in the<\/p>\n
    affidavit in support of the notice of motion taken out by<\/p>\n
    the appellants, the appellants have admitted that the said<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                       00-OS-APEAL106.10
\n                               16<\/span><\/p>\n
    flat is mortgaged to the Central Bank and the Central<\/p>\n
    Bank is the secured creditor.     Surprisingly, despite this<\/p>\n
    clear averment made in the affidavit, a statement is made<\/p>\n
    before us on behalf of the appellants that the Central<\/p>\n
    Bank is not a secured creditor.    We un-hesitantly reject<\/p>\n
    this submission.    Going back to the affidavit of Mr.<\/p>\n
    Khandelwal, it is further stated in the affidavit that the<\/p>\n
    appellants have not paid the outstanding dues of the<\/p>\n
    Central Bank and, therefore, its account has become a<\/p>\n
    NPA. Proceedings filed by the Central Bank for recovery<\/p>\n
    of its dues are pending in DRT, Jaipur.        Pending those<\/p>\n
    proceedings, the Central Bank has initiated proceedings<\/p>\n
    under the SARFAESI Act against the appellants and the<\/p>\n
    Insolvents B.D. Agarwal and Mrs. Sangeeta Agarwal. It is<\/p>\n
    asserted in the affidavit that the Central Bank has issued<\/p>\n
    notice under Section 13(2) and Section 13(4) of the<\/p>\n
    SARFAESI Act.\n<\/p>\n
    12. In Transcore v. Union of India & Anr.<\/a> (2008) 1<\/p>\n
    SCC 125, the Supreme Court was inter alia considering<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                       00-OS-APEAL106.10
\n                                17<\/span><\/p>\n
    the question whether recourse to take possession of the<\/p>\n
    secured assets of the borrower in terms of Section 13(4)<\/p>\n
    of the SARFAESI Act comprehends the power to take<\/p>\n
    actual possession of the immoveable property.                     The<\/p>\n
    Supreme Court considered the provisions of the SARFAESI<\/p>\n
    Act and held that it deals with crystalized liabilities. The<\/p>\n
    Supreme Court held that Section 13(2) proceeds on the<\/p>\n
    basis that the borrower is under a liability; that the debt<\/p>\n
    has become due and that the borrower’s account in the<\/p>\n
    books of account of the bank is classified as substandard.\n<\/p>\n
    The Supreme Court observed that Sections 13(1) and<\/p>\n
    13(2) of the SARFAESI Act proceed on the basis that the<\/p>\n
    security interest in the bank needs to be expeditiously<\/p>\n
    enforced. The Supreme Court further held that there is no<\/p>\n
    dichotomy between constructive possession and physical<\/p>\n
    possession. In view of this, in our opinion, learned Single<\/p>\n
    Judge was right in directing the Official Assignee to hand<\/p>\n
    over the said flat to the Central Bank.       Learned Single<\/p>\n
    Judge has not determined any question, which the court of<\/p>\n
    exclusive jurisdiction created under the Rent Act, can<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                       00-OS-APEAL106.10
\n                                 18<\/span><\/p>\n
    decide and, hence, Ramesh Kumar Jhamb’s case has<\/p>\n
    no application to this case.      Learned Single Judge has<\/p>\n
    rightly observed that if the appellant has any grievance<\/p>\n
    against the Central Bank, it would be open to the<\/p>\n
    appellant to take recourse according to law. In this<\/p>\n
    connection, reference must be made to Section 17 of the<\/p>\n
    SARFAESI Act which gives right to any person, including<\/p>\n
    borrower to file an appeal to the DRT if he is aggrieved by<\/p>\n
    any measures taken under Section 13(4) of the SARFAESI<\/p>\n
    Act.    Section 18 provides for an appeal against the order<\/p>\n
    passed by the DRT.      Apart from Transcore, there are<\/p>\n
    several other judgments of the Supreme Court in which<\/p>\n
    the importance of the expeditious and effective nature of<\/p>\n
    the remedies under Sections 17 and 18 of the SARFAESI<\/p>\n
    Act is stressed. In this connection, we may usefully refer<\/p>\n
    to Mardia Chemicals Ltd., etc. etc. v. Union of India<\/p>\n
    & Ors., etc. etc. AIR 2004 SC 2371; United Bank of<\/p>\n
    India    v.   Satyawati Tondon & Ors. AIR<\/a> 2010 SC<\/p>\n
    3413 and Kanaiyalal Lalchand Sachdev & Ors.                          v.\n<\/p>\n
    State of Maharashtra & Ors. in Criminal Appeal Nos.\n<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span><\/p>\n
     AJN                                        00-OS-APEAL106.10
\n                                 19<\/span><\/p>\n
    338-340 of 2011 dated 17\/2\/2011.\n<\/p>\n
    13. We must note that an incorrect statement is made by<\/p>\n
    the appellants in the affidavit in support of the Notice of<\/p>\n
    Motion No.67 of 2009 that on 9\/9\/2009, the appellants<\/p>\n
    were in lawful possession of the said flat.         In the order<\/p>\n
    dated 1\/8\/2006 passed by learned Single Judge (Dr. D.Y.\n<\/p>\n
    Chandrachud, J.) while dealing with Notice of Motion No.54<\/p>\n
    of 2006 taken out by the appellants for annulment of<\/p>\n
    insolvency proceedings, it is observed that the Official<\/p>\n
    Assignee was informed by the Co-operative Housing<\/p>\n
    Society by letter dated 20\/3\/2006 that the 1st Insolvent i.e.<\/p>\n
    B.D. Agarwal had attempted to forcibly break open the<\/p>\n
    said   flat   and   he was   prevented   by the Managing<\/p>\n
    Committee from doing so. This conduct of B.D. Agarwal is<\/p>\n
    not consistent with the appellants’ claim of being in lawful<\/p>\n
    possession of the said flat on 9\/9\/2009.         So far as the<\/p>\n
    Official Assignee’s claim is concerned, in our opinion,<\/p>\n
    Section 13(7) of the SARFAESI Act can take care of it.\n<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span><\/p>\n
     AJN                                        00-OS-APEAL106.10
\n                                 20<\/span><\/p>\n
    14. Reliance placed by learned counsel on the judgment<\/p>\n
    of the Andhra Pradesh High Court in Khaja Atheequllah<\/p>\n
    is misplaced because, though in this judgment, the<\/p>\n
    Andhra Pradesh High Court has considered the provisions<\/p>\n
    of Sections 13 and 14 of the SARFAESI Act, attention of<\/p>\n
    the court was not drawn to the judgment of the Supreme<\/p>\n
    Court in Transcore which has discussed the provisions of<\/p>\n
    the SARFAESI Act in depth and held that the SARFAESI Act<\/p>\n
    deals with crystallized liability.   Scope of remedy under<\/p>\n
    Sections 17 and 18 of the SARFAESI Act is also not<\/p>\n
    discussed by the Andhra Pradesh High Court.                       It is<\/p>\n
    pertinent to note that in M\/s. Trade Well            & Anr.           v.\n<\/p>\n
    Indian Bank & Anr. 2007 (1) Bom.C.R. (Cri.) 783, a<\/p>\n
    Division Bench of this court to which one of us (Smt.\n<\/p>\n
    Ranjana Desai, J.) was a party, has after referring to<\/p>\n
    Transcore and Mardia Chemicals held that remedy<\/p>\n
    provided under Section 17 is an efficacious alternative<\/p>\n
    remedy available to the third party as well as to the<\/p>\n
    borrower. Referring to the observations of the Supreme<\/p>\n
    Court in Mardia Chemicals Limited, this court has<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                      00-OS-APEAL106.10
\n                               21<\/span><\/p>\n
    observed that proceedings under Section 17 of the<\/p>\n
    SARFAESI Act are in lieu of a suit and, therefore, all<\/p>\n
    possible grievances can be raised before the DRT.               This<\/p>\n
    would obviously include grievance about jurisdiction.\n<\/p>\n
    15. So far as the grievance of the appellants that the<\/p>\n
    lease agreement is wrongly terminated is concerned, we<\/p>\n
    have already noted that after the adjudication order was<\/p>\n
    passed, the property vested in the Official Assignee under<\/p>\n
    Section 17 of the Presidency Towns Insolvency Act, 1909.\n<\/p>\n
    Clause 10 of the said agreement entitles the owner to<\/p>\n
    terminate the said agreement if there is breach of any of<\/p>\n
    the terms and conditions of the said agreement.               Since<\/p>\n
    according to the Official Assignee, the appellants had<\/p>\n
    failed to pay the Society charges, the Official Assignee<\/p>\n
    rightly sought permission from learned Single Judge to<\/p>\n
    terminate the said agreement. It is pertinent to note that<\/p>\n
    what weighed with learned Single Judge is the fact that<\/p>\n
    the lease agreement is entered into by Insolvent 2 – Ms.<\/p>\n
    Sangita Agarwal, who is or, in any event, was at the<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                      00-OS-APEAL106.10
\n                                22<\/span><\/p>\n
    material time, wife of Insolvent 1, who was a director of<\/p>\n
    the company; that the lease agreement which is for a<\/p>\n
    period of 15 years has not been registered and that the<\/p>\n
    lease rental is an amount of Rs.1\/- per month.           Learned<\/p>\n
    Single Judge, therefore, cannot be faulted for having<\/p>\n
    granted permission.\n<\/p>\n
    16. Admittedly, the applicants have filed a suit in the<\/p>\n
    Small Causes Court at Bombay being RAD Suit No.939 of<\/p>\n
    2010 in which it is prayed that the appellants may be<\/p>\n
    declared as tenant in respect of the said flat and that the<\/p>\n
    termination of the lease agreement dated 11\/4\/1996 by<\/p>\n
    the Official Assignee is illegal and valid and it be set<\/p>\n
    aside. It is, therefore, not proper for us to express any<\/p>\n
    opinion on this issue. Therefore, we do not want to say<\/p>\n
    anything further on this issue.\n<\/p>\n
    17. In the ultimate analysis, we are of the opinion that<\/p>\n
    there is no merit in the appeal and it will have to be<\/p>\n
    dismissed. Before closing, we must mention that reckless<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                      00-OS-APEAL106.10
\n                               23<\/span><\/p>\n
    allegations were made at the instance of the appellants<\/p>\n
    by the counsel for the appellants against counsel for the<\/p>\n
    Central Bank and counsel for the Official Assignee. This<\/p>\n
    compelled us to ask for various orders passed by this<\/p>\n
    court against the Insolvents. We have gone through those<\/p>\n
    orders. We find that reckless allegations were also made<\/p>\n
    by the appellants against learned Single Judge of this<\/p>\n
    court (V.C. Daga, J.) and counsel for the respondents that<\/p>\n
    Insolvent B.D. Agarwal was forced to file undertaking by<\/p>\n
    them.   In subsequent orders, this court has adversely<\/p>\n
    commented upon this conduct of Insolvents.              Insolvent<\/p>\n
    B.D. Agarwal was arrested and then released on bail. It is<\/p>\n
    pertinent to note that by order dated 8\/3\/2011, a Division<\/p>\n
    Bench presided over by Justice D.K. Deshmukh in two<\/p>\n
    appeals being Appeal (L) No.521 of 2010 and Appeal (L)<\/p>\n
    No.638 of 2010 has observed that both the appeals have<\/p>\n
    been unnecessarily filed and they have resulted in abuse<\/p>\n
    of process of the court. The appellants were directed to<\/p>\n
    pay as and by way of costs of notice of motion and appeal<\/p>\n
    Rs.25,000\/- each to the Official Assignee in each of the<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>
\n     AJN                                         00-OS-APEAL106.10
\n                                24<\/span><\/p>\n
    appeal.   We refrain from taking any such action against<\/p>\n
    the appellants only with a hope that wiser counsel will<\/p>\n
    prevail and the Insolvents would refrain from making such<\/p>\n
    allegations in future.\n<\/p>\n
    18. The Official Assignee is permitted to pay the fees of<\/p>\n
    advocate Mr. Jain from the estate of the insolvent.\n<\/p>\n
    19. Appeal is dismissed.\n<\/p>\n
                                     [MRS. RANJANA DESAI, J.]<\/p>\n
                                        [RANJIT MORE, J.]<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 17:08:52 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Ajn 00-Os-Apeal106 vs Official Assignee on 28 March, 2011 Bench: Ranjana Desai, R. V. More AJN 00-OS-APEAL106.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.106 OF 2010 IN NOTICE OF MOTION NO.67 OF 2009 IN INSOLVENCY PETITION NO.46 OF 2002 Re. 1. B.D. Agarwal ) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-25466","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nAjn 00-Os-Apeal106 vs Official Assignee on 28 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ajn-00-os-apeal106-vs-official-assignee-on-28-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ajn 00-Os-Apeal106 vs Official Assignee on 28 March, 2011 - 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