Full Judgment Text
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2006:BHC-OS:7438-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1684 OF 2006
1. Dr.Anil Nandkishor Tibrewala, )
2. Mrs.Nasreena Anil Nandkishor, )
Tibrewala, both adults, Indian )
Inhabitants, residing at Flat )
No.B-62, Empire Estate, Kemps )
Corner, Mumbai-400 036 and )
owners of the Flat No.902, )
situate at 9th Floor, Building )
No.6, Patel Tower, B.G.Kher )
Road, Worli, Mumbai-400 018. ).Petitioners.
Versus
1. Jammu and Kashmir Bank Ltd., )
a Banking Company incorporated )
under the Jammu and Kashmir )
Companies Act, 1977 (Svt.Era) )
having its Registered office )
at Corporate Head Quarters, )
Maulana Azad Road, Srinagar )
and one of its Branch Office )
among others at Fort, Mumbai, )
Homi Modi Cross Lane-II, )
Fort Chambers, Block-B, )
Mumbai-400023. )
2. Messers.Meridian Exports and )
Industries a Partership firm )
duly registered under the )
provisions of the Indian )
Partnership Act, having office )
at Holland House, 14, Colaba )
Causeway, Mumbai- 400 039. )
3. Hareshkumar Pravinchandra )
Sanghvi. )
4. Mrs.Bhavana Tushar Sanghvi )
5. Mrs.Malini Pradeep Shroff )
(The Respondent Nos.3 to 5 )
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are of Mumbai, adults, Indian )
Inhabitants carrying on business )
in partnership in the name )
and style of M/s.Meridian )
Exports and Industries, having )
their place of business at )
Holland House, 14, Colaba )
Causeway, Mumbai-400 039. )
6. M/s.Principal Impex Pvt. )
Ltd., a private limited )
company duly registered and )
incorporated under the )
provisions of Companies )
Act, 1956 having its )
Registered office at )
Holland House, Behind Diana )
Eclipse, 14, Colaba, Causeway, )
Mumbai-400 039. )
7. M/s.Umang Builders Pvt.Ltd., )
a Private Limited company )
duly registered and incorporated )
under the provisions of Companies)
Act, 1956 having its Registereed )
office at Holland House, behind )
Diana Eclipse, 14, Colaba )
Causeway, Mumbai-400 039. )
8. Maharashtra Unique Automobiles )
Pvt. Ltd., a Private Limited )
Company duly registered and )
incorporated under the provisions)
of Companies Act, 1956 having )
its Registered office at )
Holland House, Behind Diana )
Eclipse, 14, Colaba, Causeway, )
Mumbai-400 039. )
9. Tushar Pravinchandra Sanghvi, )
of Mumbai, Indian Inhabitant, )
carrying on business at Holland )
House, Behind Diana Eclipse, )
14, Colaba Causeway, Mumbai )
400 039. )
10. Mrs.Panna Hareshkumar Sanghvi, )
of Mumbai, Indian Inhabitant, )
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carrying on business at Holland )
House, Behind Diana Eclipse, )
14, Colaba Causeway, Mumbai )
400 039. )
11. Recovery Officer, )
Debts Recovery Tribunal-I, )
Mumbai. ).Respondents.
....
Mr.Iqbal Chagla, Senior Counsel with Mr.F.Devitre,
Senior Counsel and Mr.J.P.Sen i/b. Federal &
Rashmikant, Advocates for the Petitioners.
Mr.S.Satpute i/b. Satpute & Co. for Respondent
No.1.
Mr.S.K.Jain, Advocate for Respondent Nos.2 & 5.
....
CORAM : F.I.REBELLO AND F.I.REBELLO AND F.I.REBELLO AND
SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ.
DATED : JULY 11, 2006. JULY 11, 2006. JULY 11, 2006.
JUDGMENT (PER F.I.REBELLO, J.) :
1. Rule. Other Respondents, though served,
have not put in appearance. Heard forthwith.
2. The petitioners had moved the Debt Recovery
Tribunal under the provisions of Section 19(25) of
the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 (hereinafter referred to as
the RDB Act). The application which was filed on
1.12.2005 was numbered as Misc.Application No.52
of 2005 for rectification/modification/correction
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of the order dated 15.9.2005. It is the case of
the petitioners, that the matter was posted for
orders on 7th December, 2005, however, the
Presiding Officer ceased to hold the office and no
order was passed on the same.
3. We may now refer to a few facts :
. Respondent No.1 had taken out proceedings
before the Debts Recovery Tribunal being
O.A.No.305 of 2002 by application dated 18.9.2002.
Respondent Nos.2 to 10 herein were the Respondents
before the Tribunal. By order dated 15.9.2004 the
D.R.T. was pleased to allow the application which
included a prayer that Flat No.902 was validly
mortgaged in favour of Respondent No.1 i.e. the
Jammu & Kashmir Bank Ltd., and if there was
failure to pay the amount to Respondent No.1, the
Respondent No.1 was entitled to sell the Flat.
Pursuant to the said order, the Recovery Officer
issued recovery certificate dated 29.10.2004. On
30.5.2006, the Respondent No.1 moved an
application for enforcement of recovery
certificate for attachment of Flat No.902 and,
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according to the petitioners, without any notice
to them. By order of 30th May, 2005, the learned
Recovery Officer was pleased to allow the said
application. The petitioners’ application being
Misc.Application No.52 of 2005 came up for hearing
on 14.6.2006. Oral application was made by
petitioners’ Advocate for stay of allotment of
Flat No.902. That application was neither
considered nor granted, according to the
Petitioners. The matter was then adjourned to
29.6.2006. It is consequent to this that the
present Petition has been filed on 26.6.2006. The
Petitioners thereafter have also preferred an
Appeal (L) No.203 of 2006 before the D.R.T.
challenging the order dated 30th May, 2006 passed
by the Recovery Officer.
4. On behalf of the Petitioners, their learned
Counsel submits that there is specific documentary
evidence on record being the share certificates
issued by the society, the receipts issued by the
society and the electric bills of the Flat, which
would show that the petitioners had legal title to
Flat No.902. It is also pointed out that there
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are documents also before the Tribunal which would
show that Flat No.902 belongs to the Petitioners.
It is, therefore, set out that there is
documentary evidence on record which would
indicate that Flat No.902 was of the ownership of
the Petitioners. It is also pointed out that
earlier an agreement was entered into between
Yusuf A. Patel (Builder) and the Petitioners on
29.4.1987 in respect of Flat No.1102, 11th Floor,
Tower No.6, Patel Apartments. By agreement dated
22.6.1987, the Flat No.1102 of 11th floor was
substituted by Flat No.902 on 9th floor. All
other terms remain the same. It appears that on
23.2.1988 the builder had entered into an
agreement with Maharashtra Auto regarding Flat
No.902. On 18.11.1992 rectification was done.
The builder on April 1993, handed over the
possession of Flat No.902 to the Petitioners.
Letters dated 15.4.1993 and 17.4.1993 are the
possession letters from the builder to the
petitioners in respect of Flat No.902. On
16.4.1993 Meridian (Sanghvi family company)
returned original possession letter of Flat No.901
and Flat No.902 and confirmed that Flats on 10th
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Floor had been given in exchange with possession
letters in that respect. The builder was
requested to amend the original agreements of Flat
Nos.901 and 902 to reflect the same. It appears
that on 24.2.1994 the Maharashtra Auto deposited
the original agreement for Flat No.902 with the
Respondent No.1. By letter dated 6.5.1994, the
builder informed the Maharashtra Auto that Flat
No.1002 was handed over to Maharashtra Auto
instead of Flat No.902. On 20.5.1994, Maharashtra
Auto, sent a letter to the builder confirming the
possession of Flat No.1002 instead of Flat No.902.
On 25.1.1999 a deed of confirmation was entered
into by the Petitioners thereby registering the
agreements dated 29.4.1987 and 22.6.1987 after
paying the requisite stamp duty thereon. The
society was registered on 21.4.1999.
5. On behalf of the Petitioners, their learned
Counsel further submits that the only remedy that
is available with the petitioners considering that
D.R.T. has granted declaration that there is
valid mortgage, would be under Section 19(25) of
the RDB Act, in the absence of any other specific
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provision. It is pointed out that provisions of
Sections 20 & 30 of RDB Act, would be no effective
remedy nor Rule 5A of the Debts Recovery Tribunal
(Procedure) Rules, 1993. It is also pointed out
that the provisions of Section 29 of the RDB Act
which make applicable the provisions of Second and
Third Schedules of the Income Tax Act, 1961 on the
facts of this case also would not be available.
. On the other hand, on behalf of the
Respondents their learned Counsel submits, that
they have document of mortgage in their favour and
in these circumstances this Court ought not to
entertain the Petition as filed by the
Petitioners, but, dismiss the same.
6. In the instant case, the Petitioners have
filed Misc.Application No.52 of 2005 for
rectification/modification/correction of the order
dated 15.9.2004 under Section 19(25) of the RDB
Act. That application is still pending. In the
meantime, pursuant to application made by the
Respondent Bank, an order has been passed on 30th
May, 2006 attaching Flat No.902. The Petitioners
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have now also preferred an Appeal on 30.6.2006
against the said order of attachment.
7. By the present Petition, the relief sought
for by the Petitioners is for a direction against
the Respondent Nos.1 to 11, that they cannot
proceed further in regard to petitioners Flat
No.902 and to set aside, the order dated 30.5.2006
insofar as it pertains to Flat No.902. Ordinarily
as the Petitioners have preferred an Appeal and if
that was an effective remedy against the order of
30th May, 2006, we would not interfere in the
exercise of our extra ordinary jurisdiction. The
petition however raises an issue of vital
importance under the provisions of RDB Act and the
question which requires determination can be
formulated as under :
What is the remedy available to a party,
who is not a party in proceedings before
the Debts Recovery Tribunal, but, whose
property has been declared by the Tribunal
to be validly mortgaged in favour of a
financial institution ?
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8. Under Section 34 of the RDB Act, the
provisions of the Act shall have effect
notwithstanding anything inconsistent therewith
contained in any other law for the time being in
force or in any instrument having effect by virtue
of any law other than this Act. Under Section 18
no court or other authority shall have, or be
entitled to exercise, any jurisdiction, powers or
authority (except the Supreme Court, and a High
Court exercising jurisdiction under Articles 226
and 227 of the Constitution) in relation to the
matters specified in section 17.
. Against the order of the Tribunal an Appeal
lies to Appellate Tribunal. In other words, the
Act has conferred a specific jurisdiction on the
Tribunal in respect of the class of matters which
can be dealt with by the Tribunal under Section
17. An Appeal is provided and the jurisdiction of
other Courts is taken away. In other words, the
orders passed under RDB Act becomes final and
cannot be questioned in any Court of law other
than by way of Petition before this Court or any
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available remedy before the Apex Court in
appropriate cases. As the petitioners are not
parties to the proceedings and as it is their
case, that the property belongs to them what is
the Forum available to such parties.
9. We may first gainfully refer to the
provisions of the Code of Civil Procedure i.e.
Order XXI Rule 58. Rule 58 specifically provides
that if any claim is preferred to, or any
objection is made to the attachment of, any
property attached in execution of a decree on the
ground that such property is not liable to such
attachment, the Court shall proceed to adjudicate
upon the claim or objection in accordance with the
provisions as contained therein. Under Sub-Rule
(2) of Rule 58 - all questions (including
questions relating to right, title or interest in
the property attached) arising between the parties
to a proceedings or their representatives under
this rule and relevant to the adjudication of the
claim or objection, shall be determined by the
Court dealing with the claim or objection and not
by a separate suit. The proviso to Order 21 Rule
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58(1) provides for a situation where the Court may
not entertain the objection. By virtue of
Sub-Rule (5) if on account of the proviso the
Court refuses to entertain the objection, the
party against whom such order is made may
institute Suit to establish his right. By virtue
of Section 47 of Code of Civil Procedure all
questions arising between the parties to the suit,
in which the decree was passed or their
representatives and relating to execution,
discharge or satisfaction of the decree shall be
determined by the Court executing the decree and
not by separate suit. The expression used under
Section 47 therefore "parties to the Suit". The
section would not apply to a case where an
aggrieved person was not a party to the Suit. On
the other hand Order 21 Rule 58 contemplates a
case where a claim is preferred or an objection
made to attachment on the ground that such
property is not liable to such attachment. It is
that Court which can decide the claim or
objection. A reading of this would indicate that
it can also be by a person other than the party to
the Suit. In the matter of dispossession of
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property, there is provision in Order 21 Rule 99
for an aggrieved person to raise his objection.
Under Order 21 Rule 101 all questions as to right,
title or interest in the property can be
considered while hearing such objection. In other
words, under the Code of Civil Procedure, there is
specific remedy provided to a party aggrieved by
the order of attachment or dispossession.
. Section 22(1) of the RDB Act specifically
sets out that, the Tribunal and the Appellate
Tribunal shall not be bound by the procedure laid
down by the Code of Civil Procedure, 1908 (5 of
1908), but shall be guided by the principles of
natural justice and, subject to the other
provisions of this Act and rules. By virtue of
Sub-Section (2) certain powers of the Code of
Civil Procedure have been conferred on the
Tribunal. Under Section 22(2)(e) that power
includes the power of review. Rules have been
framed which are known as the Debt Recovery
Tribunal (Procedure) Rules, 1993. Rule 5A(1)
reads as under :
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"5A.Review - 5A.Review - 5A.Review -
(1) Any party considering itself
aggrieved by an order made by the Tribunal
on account of some mistake of error
apparent on the fact of the record desires
to obtain a review of the order made
against him, may apply for a review of the
order to the Tribunal which had made the
order."
. A reading, therefore, of Section 22(2)(e)
and Rule 5A(1) would result in holding that the
Tribunal or Appellate Tribunal has been conferred
the power of review. Rule 5A(1) however uses the
expression "any party". The expression used in
Order 47 Rule 1 of the Code of Civil Procedure is
"any person". The language in the two statutes,
therefore, is different and distinct. Insofar as
the Code of Civil Procedure is concerned, the
language is wider, in that, any person aggrieved
can prefer a Review whereas insofar as Rule 5A(1)
is concerned there it is limited to parties to the
proceedings. The power of review therefore
conferred on the Debts Recovery Tribunal cannot be
exercised by a party other than a party to the
proceedings.
10. The next provision which we may gainfully
refer to is Section 20 of the RDB Act. Section 20
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uses the expression "any person aggrieved by an
order made, or deemed to have been made, by a
Tribunal". In other words, the expression is
wider and not limited only to a party to the
proceedings. A person other than the party to the
proceedings, if the language in Section 20 is
considered, would be entitled to prefer an Appeal.
It could, therefore, be said that in the case
where the property of another is declared as being
mortgaged in favour of parties to the proceedings
that other person can also prefer an Appeal. In
other words, persons like the petitioners who
claims right in the property in respect of which
financial institution have sought a declaration,
could have preferred an Appeal. The only question
is whether an Appeal under Section 20 is a
effective remedy to an aggrieved person. For that
purpose, we may gainfully refer to some
observations made by a Full Bench of Calcutta High
Court in the case of Smt.Bimla Devi Vs. Aghore Smt.Bimla Devi Vs. Aghore Smt.Bimla Devi Vs. Aghore
Chandra Mallick and Ors. Chandra Mallick and Ors. reported in AIR 1975 Chandra Mallick and Ors. AIR 1975 AIR 1975
CALCUTTA 80. CALCUTTA 80. We may quote paragraph 15 which CALCUTTA 80.
reads as under :-
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"15. The relevance of the observations
of Mukerji, J. quoted above to the instant
reference is apparent. When an application
under Order 21, Rule 90 has been dismissed
for default and an appeal is preferred from
the order of dismissal the Appellate Court
would have to go by the record as it stands
and to determine upon the materials that
are on record whether the appellant was
prevented by sufficient cause from
appearing before the trial Court. It is
obvious that the Appellate Court would have
no material on record to render a decision
on the sufficiency of the cause and can
give no relief to the appellant."
. Proceeding further, the Full Bench approved
the observations in another judgment cited and
stated the law as thus : " While it is true that
in form a remedy was available against the order
dismissing the application under Order 21, Rule 90
inasmuch as Order 43, Rule 1(j) provides for an
appeal against such an order, the existence of the
remedy, in circumstances, as in this case, where
no evidence at all was adduced, would be more
imaginary than real."
. If we examine, therefore, the remedy if
available to the person like the petitioners,
under Section 20, the question would be whether
this is an effective remedy or is it elusive. In
the Appeal preferred, the Tribunal would be bound
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to consider the record as it stands. The question
of invoking the provisions of Order 41, Rule 27
assuming it is applicable would not be attracted
as is only meant in a case of producing additional
evidence. We are dealing with a case where a
party had no opportunity even to plead his case.
The question therefore of leading evidence in the
absence of any pleading would be futile. Section
20 though a remedy available would not be an
effective remedy at law.
11. The other remedy which is available in
respect of an order passed by recovery officer, is
Section 30 of the Act. By virtue of Section 30
notwithstanding anything contained in Section 29,
any person aggrieved by an order of the Recovery
Officer made under the Act has to challenge that
order within thirty days. Section 26(1) of the
Act will also have to be considered, which reads
as under :
"26(1). It shall not be open to the
defendant to dispute before the Recovery
Officer the correctness of the amount
specified in the certificate, and no
objection to the certificate on any other
ground shall also be entertained by the
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Recovery Officer."
. In other words, it is not open to the
Recovery Officer to go beyond the certificate.
The grant of declaration in favour of a financial
institution, cannot be gone into by the Recovery
Officer. The Recovery Officer having no power to
go in that issue, the question of Section 30 being
an effective remedy would again be elusive. In
our opinion, therefore, the remedy under Section
30 in a case where the Tribunal has given a
declaration would again be elusive and
non-effective, as the Recovery Officer cannot go
behind the order or certificate issued by the
Tribunal and/or Recovery Officer.
12. We may now refer to the provisions of
Section 29 of the RDB Act. Section 29 makes
applicable the provisions of Second and Third
Schedules of the Income Tax Act and the Income Tax
(Certificate Proceedings) Rules, 1962 applicable
for execution of the recovery certificate under
the RDB Act. Under the Second Schedule, proviso,
recovery of tax in the instant case for the
recovery of amount under the order/certificate
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various modes of recovery have set out under Rule
4. Under Order 38, Rule 11 of the Code of Civil
Procedure, if a claim is preferred or objection is
preferred for attachment or sale in execution of
the certificate on the ground that such property
is not liable for such attachment or sale, it is
open to the Investigating Officer to examine the
same. Here also, the same difficulty would arise
inasmuch as what the investigating officer can do
is to hear the challenge to the attachment. It
will not be open to the investigating officer to
go behind the order or certificate. If the order
and/or the certificate has given a declaration
that the property is validly mortgaged in favour
of financial institution, such an exercise cannot
be undertaken by the investigating officer. It is
only in the event, if there been order/certificate
for money and pursuant to that certificate,
property of the judgment debtor is sought to be
recovered in terms of Rule 4 or recovery by
attachment or sale of immovable property then only
Rule 11 apply. That Rule will not apply in a case
where the property was mortgaged and where the
declaration was given in favour of the financial
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institution. The remedy, therefore, under Section
29 also is not available to a party like the
petitioners. Our attention is invited to the
judgment of a learned Judge of Karnataka High
Court in the case of M/s. Actia Technologies Pvt. M/s. Actia Technologies Pvt. M/s. Actia Technologies Pvt.
Ltd., & Anr. Vs. Canara Bank and Anr. Ltd., & Anr. Vs. Canara Bank and Anr. reported Ltd., & Anr. Vs. Canara Bank and Anr.
in 2006(2) Bank CLR 169(Kant) 2006(2) Bank CLR 169(Kant). In that case the 2006(2) Bank CLR 169(Kant)
property was put for sale by the Recovery Officer.
The contention of the petitioners was that the
property never belonged to the judgment debtor nor
was mortgaged with the Bank as a security of
payment of loan count. The Court after observing
the various provisions of the Act, came to the
conclusion that a Writ Petition could not be
entertained, as a alternate remedy was available
to the petitioners before it. In that case on the
facts we may note that there appears to have been
no declaration given by the Tribunal that the
property was validly mortgaged.
13. Does the act provide any remedy to a person
like the petitioners. The Court while considering
the legislation which has created a special
mechanism for recovery of dues of financial
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institution and bearing in mind the various
provisions earlier referred which exclude the
jurisdiction of other Courts and Tribunals will
have to examine, whether an effective remedy is
available under the Act itself. If a remedy is
not available under the Act, a party may have a
remedy at civil law. If an aggrieved person was
not party to the proceedings before the Debts
Recovery Tribunal, and a party to the proceedings
has secured a decree, based on a fraudulent
document, the jurisdiction of the Civil Court in
such a case normally should not be ousted. For
examining whether there is a provision under the
Act, let us consider Section 19(25) of the RDB
Act, which reads as under :
"19(25). The Tribunal may make such
orders and give such directions as may be
necessary or expedient to give effect to
its orders or to prevent abuse of its
process or to secure the ends of justice."
. A reading of this provision would indicate
that there is a power in the Tribunal to give
orders or directions to prevent abuse of its
process or to secure the ends of justice. It is
open to the Tribunal to lay down its own procedure
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and it is not hide bound by the procedural
provisions of Code of Civil Procedure. At the
same time certain provisions of the Code of Civil
Procedure have been conferred on the Tribunal.
The expression "prevent abuse of its process" "or
to secure the ends of justice" in our opinion
would be wide enough to cover a case where a
financial institution has obtained an order or the
certificate pursuant to a mortgage created by the
judgment debtor based on a fraudulent document,
like for instance the property not belonging to
the judgment debtor. If such party comes before
the Court and points out to the Court that the
mortgage created is sham and/or bogus, the
Tribunal to prevent abuse of its process, can
assume jurisdiction under Section 19(25) to decide
that issue and for that purpose exercise powers
conferred under Section 22 of the Act. On a
aggrieved person being allowed to participate in
the proceedings, it will be open to the Tribunal
to review the order or pass such other order to
secure the ends of justice. We are, therefore, of
the clear view that in those cases where the
Recovery Officer cannot go beyond the certificate,
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a party like the petitioners who claims title in
the property or interest in the property can move
the Tribunal by invoking jurisdiction of the
Tribunal under Section 19(25), and in such cases
if a prima facie case is disclosed before the
Tribunal, the Tribunal is bound to consider the
application so moved and dispose it according to
law, after giving an opportunity to all parties
before it.
14. In the light of the above discussion and
conclusion, the application made by the
petitioners and numbered as Misc.Application No.52
of 2005 is clearly maintainable. The Tribunal
will have to proceed to dispose of the said
application according to law after giving an
opportunity to the parties before it. Having said
so, this Petition can be disposed of by issuing
the following directions :
i. The Tribunal is directed to dispose
of the Misc.Application No.52 of 2005. In
the meantime, Respondent No.1 is restrained
from taking further steps based on the
order of 30th May, 2006 pending hearing and
final disposal of the Misc.Application
No.52 of 2005.
ii. Consequent on the above directions
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and though the attachment will continue,
yet by way of abundant caution,
petitioners, their servants and/or agents
and/or persons claiming through them are
restrained from parting with or creating
any third party rights in respect of the
subject Flat No.902, pending the hearing
and final disposal of the application.
iii. If the order passed on
Misc.Application No.52 of 2005 be adverse
to the petitioners, the said order not to
be acted upon for a further period of four
weeks of passing of the order.
. Rule made absolute accordingly. However,
there shall be no order as to costs.
[F.I.REBELLO,J.] [F.I.REBELLO,J.] [F.I.REBELLO,J.]
[SMT.V.K.TAHILRAMANI,J.]
[SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.]
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