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 ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION NOTICE NOTICE NOTICE NO.1327 NO.1327 NO.1327 OF 1998 OF 1998 OF 1998 IN IN IN RECOVERY RECOVERY RECOVERY CERTI.APPLN NO.960 OF 1994 CERTI.APPLN NO.960 OF 1994 CERTI.APPLN NO.960 OF 1994 The The The Kapol Coop Bank Ltd Kapol Coop Bank Ltd Kapol Coop Bank Ltd ...... Applicant Applicant Applicant vs vs vs 1.1.1. M/s Bhalchandra Enterprises M/s Bhalchandra Enterprises M/s Bhalchandra Enterprises 2.2.2. Shri Suryakant J.Bhansali Shri Suryakant J.Bhansali Shri Suryakant J.Bhansali 3.3.3. ShriAshit S.Bhansali ShriAshit S.Bhansali ShriAshit S.Bhansali 4.4.4. ShriRoshan S.Bhansali ShriRoshan S.Bhansali ShriRoshan S.Bhansali 5.5.5. ShriDhanesh Narbheram Bhansali ShriDhanesh Narbheram Bhansali ShriDhanesh Narbheram Bhansali 6.6.6. Smt Nalini S.Bhansali Smt Nalini S.Bhansali Smt Nalini S.Bhansali ...... Respondents Respondents Respondents Mr.K.M.Sangani Mr.K.M.Sangani Mr.K.M.Sangani for Applicant for Applicant for Applicant Mr.R.Sarathy Mr.R.Sarathy Mr.R.Sarathy i/b Mr.M.M.Patel for Respondents i/b Mr.M.M.Patel for Respondents i/b Mr.M.M.Patel for Respondents CORAM CORAM CORAM : SMT R.S.DALVI, J : SMT R.S.DALVI, J : SMT R.S.DALVI, J DATE DATE DATE : 28th February, 2007 : 28th February, 2007 : 28th February, 2007 P.C. P.C. P.C. 1.1.1. This notice has been taken out since 1998 under This notice has been taken out since 1998 under This notice has been taken out since 1998 under the the the provisions of Order 21 Rule 37 of C.P.C. provisions of Order 21 Rule 37 of C.P.C. provisions of Order 21 Rule 37 of C.P.C. requiring requiring requiring the the the respondents against whom the notice is respondents against whom the notice is respondents against whom the notice is addressed addressed addressed to show cause why he should not be to show cause why he should not be to show cause why he should not be committed committed committed to jail/civil prison in execution of the to jail/civil prison in execution of the to jail/civil prison in execution of the decree decree decree under the recovery certificate Application under the recovery certificate Application under the recovery certificate Application No.960 No.960 No.960 of 1994. The Notice was served upon the of 1994. The Notice was served upon the of 1994. The Notice was served upon the defendants defendants defendants informing them of various dates of informing them of various dates of informing them of various dates of hearing hearing hearing by separate letters of the plaintiff’s by separate letters of the plaintiff’s by separate letters of the plaintiff’s advocates. advocates. advocates. An affidavit of service has been filed An affidavit of service has been filed An affidavit of service has been filed on on on 21st April, 2005. The respondent no.3 has filed 21st April, 2005. The respondent no.3 has filed 21st April, 2005. The respondent no.3 has filed his his his affidavit in reply. affidavit in reply. affidavit in reply. 2.2.2. The respondents are required to appear in person The respondents are required to appear in person The respondents are required to appear in person inin in the the the notice under notice under notice under Order 21 Rule 37 of C.P.C. Only rder 21 Rule 37 of C.P.C. Only rder 21 Rule 37 of C.P.C. Only respondent respondent respondent No. 3 has appeared. Respondent no. 1 No. 3 has appeared. Respondent no. 1 No. 3 has appeared. Respondent no. 1 2 isisis stated to be 82 years old. Respondent no.4 who stated to be 82 years old. Respondent no.4 who stated to be 82 years old. Respondent no.4 who isisis 45 45 45 years old is stated to be having back pain and years old is stated to be having back pain and years old is stated to be having back pain and hence hence hence respondent no. 3 has not appeared before the respondent no. 3 has not appeared before the respondent no. 3 has not appeared before the court court court despite specific notice in that behalf and despite specific notice in that behalf and despite specific notice in that behalf and despite despite despite court’s directions when the matter appeared court’s directions when the matter appeared court’s directions when the matter appeared on on on board but, was adjourned. board but, was adjourned. board but, was adjourned. 3.3.3. It is the case of the plaintiff that though the It is the case of the plaintiff that though the It is the case of the plaintiff that though the respondents respondents respondents have have have a number of properties and carry on a number of properties and carry on a number of properties and carry on business, business, business, they have failed and neglected to they have failed and neglected to they have failed and neglected to discharge discharge discharge the debt in full. One of the properties the debt in full. One of the properties the debt in full. One of the properties of of of the the the respondents has been sold. The sale proceeds respondents has been sold. The sale proceeds respondents has been sold. The sale proceeds have have have been appropriated partly towards the discharge been appropriated partly towards the discharge been appropriated partly towards the discharge of of of the above recovery certificate and fully towards the above recovery certificate and fully towards the above recovery certificate and fully towards discharge discharge discharge of another debt of the sister concern of of another debt of the sister concern of of another debt of the sister concern of respondent respondent respondent no. 1. no. 1. no. 1. 4.4.4. The respondents have not made any appropriation The respondents have not made any appropriation The respondents have not made any appropriation for for for payment to be made to the applicant. The payment to be made to the applicant. The payment to be made to the applicant. The applicants applicants applicants as the creditors, have appropriated the as the creditors, have appropriated the as the creditors, have appropriated the payments payments payments received received received as stated above. Advocate for the as stated above. Advocate for the as stated above. Advocate for the applicants applicants applicants has shown the statement of the bank has shown the statement of the bank has shown the statement of the bank discharging discharging discharging in in in full and in part two debts of the two full and in part two debts of the two full and in part two debts of the two sister sister sister concerns. Rs.65,00,000/- is yet due and concerns. Rs.65,00,000/- is yet due and concerns. Rs.65,00,000/- is yet due and payable payable payable by the respondent nos. 1 to 4 to the by the respondent nos. 1 to 4 to the by the respondent nos. 1 to 4 to the applicant. applicant. applicant. 3 5.5.5. The affidavit in reply of the respondents shows The affidavit in reply of the respondents shows The affidavit in reply of the respondents shows 3 immovable properties. The first immovable immovable properties. The first immovable immovable properties. The first immovable properties properties properties is is is flat No.557/E at Asha Mahal, at Peddar flat No.557/E at Asha Mahal, at Peddar flat No.557/E at Asha Mahal, at Peddar Road, Road, Road, Mumbai. Another mortgage is created in Mumbai. Another mortgage is created in Mumbai. Another mortgage is created in respect respect respect of the said flat. of the said flat. of the said flat. Another bank namely nother bank namely nother bank namely Vasant Vasant Vasant Sahakari Bank Ltd has made an application to Sahakari Bank Ltd has made an application to Sahakari Bank Ltd has made an application to be be be paid paid paid off from the sale proceeds off from the sale proceeds off from the sale proceeds of that property. f that property. f that property. The The The execution is in progress. The property is not execution is in progress. The property is not execution is in progress. The property is not capable capable capable of discharging both the debts in full. of discharging both the debts in full. of discharging both the debts in full. 6.6.6. The 2nd property shown by the respondents is The 2nd property shown by the respondents is The 2nd property shown by the respondents is Flat Flat Flat No.24 on 2nd floor of Sunshine Building at No.24 on 2nd floor of Sunshine Building at No.24 on 2nd floor of Sunshine Building at Beach Beach Beach Candy, Mumbai. The respondents offers the Candy, Mumbai. The respondents offers the Candy, Mumbai. The respondents offers the said said said property for sale. Advocate for the bank has property for sale. Advocate for the bank has property for sale. Advocate for the bank has shown shown shown the the the registered agreement for transfer executed registered agreement for transfer executed registered agreement for transfer executed by by by respondent no. 3 in respect of the said flat in respondent no. 3 in respect of the said flat in respondent no. 3 in respect of the said flat in favour favour favour of one Prakash Kirtikumar Salot. Advocate of one Prakash Kirtikumar Salot. Advocate of one Prakash Kirtikumar Salot. Advocate for for for the said purchaser has written a letter dated the said purchaser has written a letter dated the said purchaser has written a letter dated 20th 20th 20th December, 2005 to the applicant ’s bank Manager December, 2005 to the applicant ’s bank Manager December, 2005 to the applicant ’s bank Manager informing informing informing them of the sale deed registered under them of the sale deed registered under them of the sale deed registered under No.BBF-1-01044-2005 No.BBF-1-01044-2005 No.BBF-1-01044-2005 attaching copy of the sale deed attaching copy of the sale deed attaching copy of the sale deed and and and requesting the bank to exempt the said property requesting the bank to exempt the said property requesting the bank to exempt the said property from from from recovery. Despite this, Advocate for the recovery. Despite this, Advocate for the recovery. Despite this, Advocate for the respondent respondent respondent no. no. no. 3, on instructions of respondent no. 3, on instructions of respondent no. 3, on instructions of respondent no. 3 who who who is present before the Court, makes an offer to is present before the Court, makes an offer to is present before the Court, makes an offer to sell sell sell that flat. Advocate as well as respondent no. that flat. Advocate as well as respondent no. that flat. Advocate as well as respondent no. 3 has been directed to make that offer in writing. has been directed to make that offer in writing. has been directed to make that offer in writing. 4 Respondent Respondent Respondent no. 3 has offered in writing the said no. 3 has offered in writing the said no. 3 has offered in writing the said property property property for sale today. The writing is taken on for sale today. The writing is taken on for sale today. The writing is taken on record record record and marked A. It is seen that the act of the and marked A. It is seen that the act of the and marked A. It is seen that the act of the respondents respondents respondents is not only insolent but, contemptuous. is not only insolent but, contemptuous. is not only insolent but, contemptuous. A registered transfer deed has been executed for registered transfer deed has been executed for registered transfer deed has been executed for this this this property. Yet respondent no. 3 has made property. Yet respondent no. 3 has made property. Yet respondent no. 3 has made bold toto to offer the property in satisfaction of the offer the property in satisfaction of the offer the property in satisfaction of the execution execution execution of the recovery certificate. of the recovery certificate. of the recovery certificate. 7.7.7. The third property shown in the affidavit in The third property shown in the affidavit in The third property shown in the affidavit in reply reply reply of the respondent no. 3 is a premises on the of the respondent no. 3 is a premises on the of the respondent no. 3 is a premises on the 2nd 2nd 2nd floor floor floor of New Prabhat Coop Society Ltd, at Ranade of New Prabhat Coop Society Ltd, at Ranade of New Prabhat Coop Society Ltd, at Ranade Road, Road, Road, Dadar, Mumbai. The respondents’ Advocate Dadar, Mumbai. The respondents’ Advocate Dadar, Mumbai. The respondents’ Advocate states states states that that that its value is about Rs.25,00,000/-. That its value is about Rs.25,00,000/-. That its value is about Rs.25,00,000/-. That property property property alone also is not sufficient to satisfy the alone also is not sufficient to satisfy the alone also is not sufficient to satisfy the recovery recovery recovery certificate. certificate. certificate. 8.8.8. The respondents continue to carry on their The respondents continue to carry on their The respondents continue to carry on their business. business. business. Respondent nos. 2 and 4 have Respondent nos. 2 and 4 have Respondent nos. 2 and 4 have impertinently impertinently impertinently not come to Court in answer the not come to Court in answer the not come to Court in answer the notice. notice. notice. It is seen that despite having the means to It is seen that despite having the means to It is seen that despite having the means to pay, pay, pay, the respondents have not paid amounts in the respondents have not paid amounts in the respondents have not paid amounts in satisfaction satisfaction satisfaction of the of the of the Recovery Certificate. ecovery Certificate. ecovery Certificate. 9.9.9. Notice No.1327 of 1998 is therefore, made Notice No.1327 of 1998 is therefore, made Notice No.1327 of 1998 is therefore, made absolute absolute absolute as prayed. Respondent no. 3 who is as prayed. Respondent no. 3 who is as prayed. Respondent no. 3 who is present present present in Court shall be taken in custody. The in Court shall be taken in custody. The in Court shall be taken in custody. The 5 Sheriff Sheriff Sheriff of Mumbai shall issue a warrant for arrest of Mumbai shall issue a warrant for arrest of Mumbai shall issue a warrant for arrest and and and production of respondent no.4. Respondent no. production of respondent no.4. Respondent no. production of respondent no.4. Respondent no. 2 who is at present 82 years old is exempt from who is at present 82 years old is exempt from who is at present 82 years old is exempt from notice. notice. notice. 10. 10. 10. Respondent no. 3, and upon arrest respondent Respondent no. 3, and upon arrest respondent Respondent no. 3, and upon arrest respondent no. no. no. 4, are sentenced to suffer imprisonment for a 4, are sentenced to suffer imprisonment for a 4, are sentenced to suffer imprisonment for a period period period of 3 months. The plaintiffs shall pay the of 3 months. The plaintiffs shall pay the of 3 months. The plaintiffs shall pay the subsistence subsistence subsistence allowance for the subsistence of allowance for the subsistence of allowance for the subsistence of respondent respondent respondent nos. 3 and 4 as called upon by the nos. 3 and 4 as called upon by the nos. 3 and 4 as called upon by the Dy.Sheriff Dy.Sheriff Dy.Sheriff of Mumbai. of Mumbai. of Mumbai. This This This order is not stayed. order is not stayed. order is not stayed. (Smt (Smt (Smt R.S.Dalvi,J) R.S.Dalvi,J) R.S.Dalvi,J)