1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO.952 OF 2006 SUMMONS NO.952 OF 2006 SUMMONS NO.952 OF 2006 IN IN IN EXECUTION EXECUTION EXECUTION APPLICATION (L) 361 OF 2006 APPLICATION (L) 361 OF 2006 APPLICATION (L) 361 OF 2006 IN IN IN SUIT SUIT SUIT NO.3259 OF 2001 NO.3259 OF 2001 NO.3259 OF 2001 Mr.J.N. Shah : Plaintiff versus Mr.H.S.Nagashwaran And others : Defendants. Mr.Ratig i/by Federal & Rashmikant for the Plaintiffs. Mr.U.Jain with Mr.M.Pandya i/by S.Mahomedbhai & Co. for Defendant Nos.1 to 3. Mr.U.Shetty with Mr.Kancha for Respondent/Canara Bank. CORAM CORAM CORAM : S.C.DHARMADHIKARI, J. : S.C.DHARMADHIKARI, J. : S.C.DHARMADHIKARI, J. DATED DATED DATED : OCTOBER 13, 2008. : OCTOBER 13, 2008. : OCTOBER 13, 2008. P.C. P.C. P.C. 1. This Chamber Summons is taken out by the Plaintiff - Decree Holder. 2. It is contended on behalf of the Plaintiff that on 17th August 2004, the consent terms were 2 arrived at between the parties in this suit and the Suit No.2316 of 2004 and both the suits were decreed in terms of the consent terms. 3. Since there is a default committed in compliance with these terms, the consent decree has become executable and the Private Receiver (Shri Niranjan Mehta) seeks to dispose of the property viz. an immovable property (Flat No.2-B, 2nd floor, B Wing, Ameya Anand Apartment), Dadar and for that purpose requests for police assistance. 4. When this matter was placed before me on last occasion it was pointed out on behalf of the Canara Bank that it has proceeded with against the Judgment Debtors before the Debts Recovery Tribunal, Mumbai and, the Debts Recovery Tribunal has passed an order/Recovery Certificate in favour of the Canara Bank. The Recovery officer has taken steps to execute and enforce the Recovery Certificate. The argument is that the debts of the Canara Bank have precedent or prevail upon that of the present Plaintiff and the Canara Bank is entitled under Law to appropriate and adjust the amount 3 pursuant to the sale towards the satisfaction of its claim under the Recovery Certificate. 5. On the other hand, the Plaintiff Decree Holder in the present suit states that the Plaintiff’s claim will prevail over that of the Canara Bank and in any event the DRT cannot decide the claim inter-se or priority in respect thereto. 6. When the matter is placed today before me at the request of the parties, to explore a without prejudice and consent arrangement for sale of the property, the Judgment Debtor’s Counsel states that the Judgment Debtor is making attempt to settle the dispute with the Plaintiff Mr.J.N.Shah. Further, the Judgment Debtor before this Court, who is the opponent before the DRT, seeks to challenge the Recovery Certificate and other orders and directions by filing an appeal before the DRAT, which appeal, though dismissed for non prosecution, is now sought to be restored and the restoration application is placed on 20th October 2008. 7. When the matter was argued for some time 4 both sides agree that the actual sale of the property can be deferred for a period of four weeks from today to enable the Defendants Judgment Debtors in Suit Nos.3259 of 2001 and 2316 of 2004 to settle their claim with the Plaintiff Decree Holder. Further, both sides, agree that if within four weeks, the Defendants Judgment Debtors do not settle the claim with Mr.J.N.Shah - the Decree Holder in both the suits, then, the property shall be taken charge of by the Private Receiver, and then, the flat will be put up for sale Jointly by the private receiver and the Recovery Officer, DRT, Mumbai. 8. However, it is agreed by both the sides that the expenses required for conducting the sale by public auction will be incurred by Canara Bank and the necessary adjustment and reimbursement with regard thereto will be claimed after both sides place their pleas before the DRT, with regard to priority. It is clarified that the sale proceeds shall be retained in that event by the Recovery Officer, but strictly without prejudice to the rights and contentions of both sides. 5 9. It is also clarified that merely because the sale is to be conducted jointly does not mean that the private receiver appointed in the present suit shall stand discharged automatically. All such orders and directions can be passed after the claims and priorities are finally determined and adjudicated. All the contentions in that behalf of both sides are kept open and it shall not be construed that the same are concluded in any manner merely because of the joint arrangement arrived at before this Court. Needless to clarify that this order does not prevent the Judgment Debtors from raising appropriate pleas in pending proceedings or taking such steps as are permissible in law to protect their right, title and interest in the immovable property or claims in that regard. 10. Chamber Summons is disposed off in the above terms. No order as to costs. Liberty to apply is granted. 11. The Recovery Officer to act upon an ordinary copy of this order duly authenticated by the Court Associate. 6 [S.C.DHARMADHIKARI,J] [S.C.DHARMADHIKARI,J] [S.C.DHARMADHIKARI,J]