1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN INSOLVENCY NOTICE OF MOTION NO.35 OF 2010 IN INSOLVENCY PETITION NO.46 OF 2002 Re. : B.D. Agarwal & Anr. ....Insolvents Ex-parte : Ghisalal C. Shah ....Petitioning Creditor And Krystal Stone Exports Ltd. ....Applicant V/s. The Official Assignee & Ors. ....Respondents Mr.Kishire Jain with Mr.Tushar Garodia for the Official Assignee. Mr.S.A. Tawate for for Krystal Stone Export Ltd. Mr.O.A. Das for the Central Bank of India. Mr.B.D. Agarwal, Insolvent No.1 present in person. CORAM : S.J. VAZIFDAR, J. DATE : 15TH JUNE, 2010. P.C. :- 1. This is an application for an order directing the Official Assignee to restore physical possession of a flat to the Applicant and to remove the lock placed thereon by Respondent No.3, Central Bank of India. 2. The Applicant claimants to be a third party entitled to possession of the said flat under and in terms of a lease agreement dated 2 11.4.1996. That the lease agreement is not registered, is another matter. 3. The act of insolvency was committed on 26.3.2002 and the order of adjudication was passed on 3.6.2003. The Official Assignee took symbolic possession of the said flat on 1.10.2004. The site report does not establish that the Applicants were in possession on that date. The Official Assignee placed his lock on the said flat. The Central Bank of India has instituted proceedings before the D.R.T., Jaipur. Pursuant to an order dated 10.1.2008 of the D.R.T., symbolic possession was handed over to the Court Receiver on 22.1.2008. Thereafter on 24.8.2009, the D.R.T. directed possession of the property be handed back to the Official Assignee. 4. The result is that as on 1.12.2009, the Official Assignee was in symbolic possession of the said flat. By an order dated 1.12.2009, the learned Judge passed the following order on Notice of Motion 68 of 2009 taken out by the Central Bank of India :- “(a) that the learned official Assignee, High Court, Bombay, may be directed to handover the flat being Flat No.305, Blace View “A” Co-operative Housing Society Limited, Matherpada Road, Amboli, Andheri (West), Bombay-400 058, to the Applicants, Central Bank of India Tonk Road Branch, Jaipur”. The words in the prayer : “in order to sell the same under SARFESI Act” which were bracketed were deleted. In the result, the Central Bank of India was handed over possession of the flat but was not granted liberty to sell the same in exercise of its powers under the SARFESI Act. Thus even assuming that the Official Assignee was only in symbolic possession of the said flat, by the said order possession of the 3 flat was directed to be handed over to the Central Bank of India. That has been done. 5. An appeal against the order dated 1.12.2009 was filed but was dismissed for default. The remedy of the Applicant is only to challenge the order. The order is binding on me. In the circumstances, the Notice of Motion is dismissed.