: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 NOTICE NOTICE NOTICE OF MOTION NO. 3608 OF 2008 OF MOTION NO. 3608 OF 2008 OF MOTION NO. 3608 OF 2008 IN IN IN COURT COURT COURT RECEIVER’S REPORT NO. 371 OF 2007 RECEIVER’S REPORT NO. 371 OF 2007 RECEIVER’S REPORT NO. 371 OF 2007 IN IN IN SUIT SUIT SUIT NO. 1689 OF 2003 NO. 1689 OF 2003 NO. 1689 OF 2003 Bank of Baroda. ...Plaintiff. V/s. Alpic Finance Ltd. (In Liquidation). ... Defendant. And Asia Motor Works Limited through its nominee India Securities Ltd. ... Purchaser/ Applicant. Ms. S. Srikrishna i/b. Little & Co. for the Plaintiff. Mr. A. Doijode with Ms. M. Iyer for the Applicant. Ms. D. Rohi Official Liquidator present. Mr. D.V. Deokar, 1st Asstt. to Court Receiver present. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 16TH 16TH 16TH DECEMBER 2008. DECEMBER 2008. DECEMBER 2008. P.C. P.C. P.C. : : : . Heard learned Advocate appearing for the parties. 2. Perused the affidavit in support and all Annexures thereto. 3. Upon perusal thereof, it is apparent to me that in so far as prayer clause (a) of Notice of Motion is concerned, the demand is raised by M.M.R.D.A. and a copy of the Demand Letter which is annexed to the affidavit in support as Annexed ‘R’ (page 163) shows that the :2: M.M.R.D.A. is demanding the dues on 4th June 2008. Admittedly and on the own showing of the Applicant the bid was accepted by the Court Receiver on 12th November 2007. 25% deposit contemplated under the terms and conditions was made on 19th November 2007. The balance payment was made on 15th January 2008 and the sale was confirmed on 17th January 2008. The sale is completed on 25th January 2008. In such circumstances, as to what effect this communication of M.M.R.D.A. would have on the dues that is allegedly payable to the Society is something which cannot be made subject matter of these proceedings. The Suit is filed by the Plaintiff-Bank for recovery against the Defendant and the Applicant is not a party thereto. The Applicant is the Auction Purchaser and the dues which are sought to be claimed from it, after the sale was completed, is something which the Applicant must contest by Independent proceedings. The Society, the M.M.R.D.A. the Plaintiff, the Defendant together with the Receiver have to be impleaded as parties and appropriate declarations and reliefs claimed in such proceedings. Needless to state that the Applicant will have to dispute the demand made by the M.M.R.D.A. and that liberty can only be availed off in its own proceedings. Granting leave to institute such proceedings and keeping all contentions open, prayer clause (a) of this Motion is rejected. It may be that Mr. Doijode has contended that the M.M.R.D.A. is claiming the amount which is payable allegedly when the Defendant purchased the premises from :3: the then transferor and therefore, in that sense, it is a past dues. However, what is material in this case the dues has not been mentioned anywhere in the report of the Court Receiver or other proceedings in this Suit. The demand is referred to in the letter dated 4th June 2008 addressed to the Society. In these circumstances, it would not be appropriate to adjudicate into the issue arising there from. More so, in the absence of M.M.R.D.A., it would be open for the Applicant to rely upon the clauses in the agreement/terms and conditions under which the Applicant purchased the premises and dispute the demand made by the Society so also the M.M.R.D.A. Equally, the demand can be challenged as Time barred but all that will have to be done in independent proceedings. 4. As far as prayer clause (b) is concerned, the Society is claiming interest on the arrears of Rs.1,53,51,781/-. That amount was admittedly due and payable from the sale proceeds to the Co-op. Society but interest on this amount was not computed. That was communicated and became payable to the Society as is evident from Annexure ‘N’ Page 159. The arrears of interest on maintenance charges and construction cost till 12th May 2008 is something which is a prior dues. If the Bill raised is perused as a whole, it is apparent that the Applicant has paid the maintenance charges from the date of sanction of the sale but the arrears have been paid :4: from the sale proceeds and interest on such arrears can be paid from the sale proceeds. This is an amount due to the Society prior to the sale being sanctioned in favour of the Auction Purchaser. For the past dues which are payable but have been paid subsequently, any interest thereon would also have to be paid from the sale proceeds. 5. It is not possible to accept the contention of the Plaintiff - Bank that the Auction Purchaser must pay the interest on arrears as the Auction Purchaser was put in possession after the sale was sanctioned on 25th January 2008. It may be that the Bill is raised after the Auction Purchaser is put in possession, but the dues are for the prior period. In such circumstances, interest on that sum would be payable from the sale proceeds. The Court Receiver to pay the sum of Rs.3,83,114/- to the Applicant as the Applicant has already paid this sum to the Co-operative Society. Upon the Applicant producing the receipt for payment of this sum, the Court Receiver to release the same in favour of the Applicant. The Motion is, therefore, disposed off. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)