(Per
: HONOURABLE MS. JUSTICE R.M.DOSHIT)
This
Appeal preferred under Clause 15 of the Letters Patent arises from
the judgment and order dated 9th March, 2006 passed by the
learned Single Judge in above Special Civil Application No.19130 of
2005.
The
appellant before this Court is the City Cooperative Bank Ltd.
(hereinafter referred to as `the Bank'). According to the Bank, the
Bank had advanced certain loans to one Pragati Alcochem Pvt.Ltd. -
the respondent no.6. In the suit for recovery filed in the Court of
Nominees, the decree has been passed against the said Pragati
Alcochem Pvt.Ltd. In execution of the said decree, the Bank has taken
over the possession of the properties of the said Pragati Alcochem
and has sealed the premises. The plant and machinery in question was
purchased by one Cellulose Products of India Ltd. in Court sale with
the consent of one Doshi Chemicals Pvt.Ltd. (hereinafter referred to
as the ?SDoshi Chemicals??) the confirming party. On the date of
taking over possession by the Bank, the Doshi Chemicals was in
possession and was running the factory. Feeling aggrieved by the
action of the Bank in taking over the possession of the plant and
machinery and sealing the premises, the Doshi Chemicals preferred the
above Special Civil Application No.19130 of 2005. By impugned
judgment and order dated 9th March, 2006, the learned
Single Judge held that the Bank was entitled to attach the property
but not to take over the possession or seal the same. The learned
Judge was pleased to hold that ?Sthe action of the
Administrator and the Sale officer, Shri Mevawala Original Respondent
No.17 of taking actual physical possession and of applying seals over
the factory premises situated at Survey No.35,36,37,38,39,40 and 45
of Village Pungam, District Bharuch is outside the scope and ambit
of the power of judgment of an immovable property under Section 159
of the Act, read with Rule 118 of the Rules and, therefore, the said
action is hereby quashed and set aside.?? The Bank was
directed to remove the seals and hand over the actual physical
possession of the factory premises. It is this direction which is the
subject matter of challenge in the present Appeal.
Mr.Nanavaty
has appeared for the Bank. He has submitted that earlier the very
Doshi Chemicals had approached this Court in the very subject matter
in Special Civil Application No.3914 of 2004. The said petition was
withdrawn by the Doshi Chemicals with a view to availing of the
alternative remedy. Instead of availing the alternative remedy, the
Doshi Chemicals filed the above Special Civil Application No.19130 of
2005, a substantive writ petition. The petition was not maintainable
on the ground of the alternative remedy available to the petitioner.
He has submitted that unless the Bank takes over the possession of
the factory premises, the Bank cannot dispose of the properties by
public auction. The Court ought to have allowed the Bank to retain
the possession of the disputed premises.
The
Appeal is contested by Mr.Shelat. Mr.Shelat has relied upon Order XXI
Rule 46 of the Civil Procedure Code. He has submitted that the
attachment need not be coupled with the possession. The learned
Single Judge has rightly directed the Bank to remove the seal and
hand over the possession though the attachment may continue. In
support thereof, he has relied upon the judgments in the matters of
Chouthi Prasad Gupta v/s Union of India and others [AIR 1967 SC
1080]; and of Nagarmal Marwari and others V/s Emperor [AIR 1932 Patna
279]. He has further submitted that since the petition was admitted,
the learned Single Judge had rightly decided the same on merits. The
petitioner was not required to be relegated to the alternative
remedy. In support thereof, he has relied upon the judgment in the
matter of L.K.Verma V/s H.M.T.Ltd. and another [JT 2006(2) SC 99]. He
has submitted that pursuant to the order dated 11th
August, 2004 made in Special Civil Application No.3914 of 2004, the
Doshi Chemicals did approach the appropriate forum i.e. the Board of
Nominees in the subject matter. At the relevant time, however, the
Bank had assured the Doshi Chemicals that there was no scope of the
Bank taking over the possession of the disputed properties. Thus, on
the assurance given by the Bank, that matter was allowed to be
disposed of. Soon thereafter, the Bank issued the order of attachment
and sealed the factory premises. He has submitted that the order of
the learned Single Judge is in consonance with the settled law and
requires to be confirmed.
Learned
advocate Mr.Gandhi has appeared for the above referred Pragati
Alcochem Pvt.Ltd. He has disputed that the Pragati Alcochem Pvt.Ltd.
was indebted to the Bank. He has submitted that the Pragati Alcochem
Pvt.Ltd. had applied for loan to the Bank. Those pending applications
were utilized by the Bank fraudulently without the instructions
issued by the Pragati Alcochem Pvt.Ltd. or without the knowledge of
Pragati Alcochem to advance a loan of more than Rs.9 crores. On the
same day, the said sum was deposited in an account and was also
withdrawn. The said transactions were a paper entry without the
exchange of cash. The Reserve Bank of India has also made
investigation and has found that the Bank had perpetrated fraud in
collusion with one Suryapur Cooperative Bank Ltd. Thus, the entire
claim of the Bank is fraudulent. The decree has been obtained from
the Court of Nominees under coercion and duress.
Be
that as it may. Indisputably, the factory premises was in possession
of the Doshi Chemicals, a party other than the judgment debtor. In
that case, the Bank could have made order of attachment but could not
have sealed the premises or taken over the actual possession of the
premises.
No
case for interference is made out. The Appeal is dismissed in limine.
The
Civil Applications stand disposed of.
(
Ms.R.M.Doshit, J )
(
Sharad D Dave, J )
srilatha
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