-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO. 1942 OF 2008 Manjula Ashok Vora and another .... Petitioners versus Union Bank of India and others ... Respondents Mr. Simil Purohit, instructed by M/s. Mohanty & Associates, for the petitioners. Mr. Rushabh Shah, instructed by M/s. Sai & Company, for respondent No.1. CORAM: P.B. MAJMUDAR & A.A. SAYED, JJ. DATE: AUGUST 21, 2008. P.C. This is a thoroughly misconceived petition filed by the petitioners only with the sole object of delaying the proceedings. 2. The petitioners herein submitted an application for intervening in the proceedings before the Debts Recovery Tribunal-III, Mumbai in Recovery Proceeding No. 319 of 2003. The petitioners submitted an intervention application for setting aside and raise the attachment warrant dated 5th May, 2004 and for quashing and setting aside the notice regarding sale proclamation in respect of Flat No.4, Harivallabh Building, Green Street Co- op. Housing Society Limited, Santacruz (West), Mumbai-400 054(hereinafter “the said flat”), on the ground that they have got 50 per cent undivided share -2- in the said flat. 3. The said flat in question has been put to auction in connection with the dues of respondent No.1 Bank. The flat in question is in occupation of respondent No.3 herein who was the original defendant No.2 in the suit filed by the bank. In execution of the decree passed by the Tribunal against respondent Nos. 2 to 4, the first respondent had attached the flat in question on 5th May, 2004. After attachment of the said flat, the present petitioners preferred an intervention application before the Recovery Officer claiming right in the said flat. According to the petitioners, they jointly own the said flat as initially the said flat was jointly owned by the husband of petitioner No.1 and father of petitioner No.2 and after the death of husband of petitioner No.1 and father of petitioner No.2 viz. Ashok Vora, the petitioners became joint owners of the said flat as they are having half share in the said flat with the other co-owner. 4. The Recovery Officer found that there was no substance in the said claim made on behalf of the petitioners. It was also found that the petitioners have failed to prove that deceased Ashok Vora was having 50 per cent share in the said flat and accordingly the application preferred by the petitioners was rejected by the Recovery Officer against which an appeal was preferred by the Petitioners before the Debts Recovery Tribunal wherein there was a delay of 513 days. The Presiding Officer of the Tribunal -3- rejected the application for condonation of delay on the ground that no satisfactory grounds were mentioned. The Presiding Officer also considered the question about title and ultimately found that even on merits, the petitioners have no case. The Tribunal accordingly rejected the application for condonation of delay which order was challenged by the petitioners before the Debts Recovery Appellate Tribunal, Mumbai by way of Misc. Appeal being Misc. Appeal No. 74 of 2008. The Appellate Tribunal by the impugned order dated 16th July, 2008 rejected the said appeal against which the present petition has been preferred by the petitioners by invoking Articles 226/227 of the Constitution of India. 5. Mr. Purohit, learned counsel appearing for the petitioners, attacked the judgment of the Appellate Tribunal on the ground that the Appellate Tribunal has not properly considered the question about delay and even the question of title has also not been properly considered. It is submitted by the learned counsel that at the time when the public notice was given in the newspaper at Mumbai regarding auction of the flat in question that the petitioners came to know about the said aspect and, therefore, delay occurred is required to be condoned. It is further submitted by the learned counsel that petitioner No.2 was out of India between December, 2007 and 6th January, 2008 and that after his return he came to know about the said aspect. It is further argued by the learned counsel that the predecessor of the petitioners viz. Ashok Vora was the joint owner and having 50 per cent -4- share in the suit property and, therefore, it was not open for the Recovery Officer to put the entire flat to auction. The petitioners have got half share in the suit property. 6. It is further submitted that there is documentary evidence in the form of a letter of the Co-operative Society stating that the said Ashok Vora was a joint owner of the flat and he got the said flat as his brother Jitendra Vora had relinquished his share in favour of said Ashok Vora. It is further submitted that the orders passed by the Presiding Officer, DRT and Appellate Tribunal may be set aside and the matter be sent back to the Appellate Tribunal for fresh decision. 7. On the other hand, Mr. Rushabh Shah, learned counsel appearing for respondent No.1-Bank has submitted that the instant proceeding is nothing but an abuse of process of law on the part of the petitioners. It is submitted by Mr. Shah that even earlier, this Court had granted time to the petitioners to produce the original resolution of the Society to show as to whether any decision was taken by the society for transferring the flat in the name of said Ashok Vora. No such resolution has been produced by the petitioners till today. Decision of a society is always taken in a general body meeting of the society and there has to be a resolution of the society in this behalf which is not there in this case. Apart from that, no share certificates had been transferred or allotted in favour of the said Ashok Vora for which -5- the learned counsel for the petitioners is also not in a position to give any satisfactory explanation. The Recovery Officer, after considering the evidence on record, has come to the conclusion that the said Ashok Vora through whom the petitioners are claiming title over the flat was not the co- owner of the flat in question. That finding has also been considered by the Appellate Tribunal. 8. After going through the order of the Presiding Officer, DRT as well as the order of the DRAT, in our view, this is not a case in which this Court can re-appreciate the evidence and give any finding of fact different than the one given by the Recovery Officer which has also been considered by the Appellate Tribunal. During the course of hearing, learned counsel for respondent No.1 has pointed out that the petitioners are practically proxies of respondent No.3. It is submitted that respondent No.3 has initiated proceedings before the Presiding Officer in which an ad-interim injunction order is also passed in her favour restraining the Bank from auctioning the flat in question. He submitted that the petitioners and respondent No.3 are, therefore, trying to delay the proceedings. Learned counsel for the first respondent has submitted that the flat in question is already auctioned by public auction and the purchaser has already deposited the full amount of Rs. 1,12,00,000/-. He, therefore, submits that this petition has been filed only with a view to delay the proceedings. -6- 9. We have heard the learned counsel for the parties at length. We have gone through the orders passed by the Recovery Officer, Presiding Officer as well as the order passed by the Appellate Tribunal. In our view, considering the reasoning given by the Recovery Officer, it cannot be said that the petitioners have made out any case even on merits. Learned counsel for the petitioners has frankly submitted that he is not in a position to produce any resolution of the society approving transfer of the flat in favour of deceased Ashok Vora through whom the petitioners are claiming the ownership. Even the explanation given for condoning such an inordinate delay is not at all satisfactory and we are in agreement with the submission of the learned counsel for the first respondent that this petition has been filed only with a view to delay the further proceedings. The Tribunal and the Appellate Tribunal have considered the question of delay and have rightly found that no case is made out for condonation of delay. 10. The explanation given by the petitioners about petitioner No.2's visit to China which caused delay in preferring the application is not at all satisfactory as admittedly even if one of the petitioners has gone out of India, at least the other petitioner is already there to take care of the proceedings. The petitioner No.2 had gone to China intermittently only for few days. The finding of fact arrived by the authorities, therefore, in this behalf cannot be interfered with by this Court in its extraordinary jurisdiction under Articles 226/227 of the Constitution of India, though we are aware that normally at -7- the time of considering the condonation of delay, this Court would not like to consider the claim of the petitioners on merits. However, since the learned counsel for the petitioners also tried to convince us even on merits stating that he has good case on merits, we have examined this aspect also. In our view, this petition has been filed only with a view to delay the further proceedings especially when a third party auction purchaser who has deposited large amount is deprived from utilising the property. The petitioners have not even joined him as party in the present proceedings. Finding no substance in the petition, the same is dismissed with no order as to costs. P. B. MAJMUDAR, J. A.A. SAYED, J.