bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 2760, 2761 AND 2762 OF 2009 PETITION NO. 2760, 2761 AND 2762 OF 2009 PETITION NO. 2760, 2761 AND 2762 OF 2009 Ghanshyamdas Sagarmal Shah Bros. ... Petitioners v/s The Greater Bombay Co-op. Bank Ltd. ... Respondents Mr.Chirag Balsara i/by Shah Jayendra S. for petitioners in all petitions. Mr.Vivek R. Walawalkar i/by Sameer R. Bhalekar for the respondents in all petitions. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 5TH MAY, 2009 5TH MAY, 2009 5TH MAY, 2009 P.C. P.C. P.C.: 1. These petitions have been filed against the notice attaching the properties of the petitioner issued by the Executing Court of the Special Recovery Officer and Sales Officer on 14.2.2009 for the sale of a flat bearing Flat No.74, Technocrat Co-operative Housing Society Ltd., at Veerk Savarkar Road, Prabhadevi, Mumbai-400 025. The petitioners in these petitions have also sought to have the sale, which is to be effected pursuant to the attachment notice, stayed by this Court. 2. The petitioners have borrowed a loan from the respondent Bank some time in the year 1983. The petitioners were granted the loan against the security 2 of the aforesaid flat. An undertaking was furnished by the petitioners authorising the respondent Bank to dispose of the flat for recovery of their dues in the event the loan remained unpaid. This undertaking was furnished on 28.6.1983. As the petitioners failed to repay the loan, the respondent Bank initiated proceedings against the petitioners by filing a dispute in the Cooperative Court. The respondent Bank obtained 3 awards in their favour on 21.9.1989 for a total amount of Rs.5,41,390/-. The petitioners did not challenge those awards and, therefore, the awards have attained the finality. 3. By their advocate’s letter dated 15.1.1990, the petitioners requested the respondent Bank not to execute the awards as they were in financial doldrums. However, the petitioners did not bother to make any payment and, therefore, a demand notice was sent on 26.12.1998. However, the petitioners did not take immediate note of this demand notice sent by the respondent Bank. On 15.2.1999 they issued a letter to the Bank stating that they were keen to clear the loan accounts but requested a waiver of the interest. They also stated that they were making efforts to pay off the principal outstanding amount i.e. Rs.96,576/- before 31st March, 1999. Again the petitioners failed to make the payment. Thereafter 3 a notice before attachment was issued on 5.8.2002 in respect of the flat. This notice before attachment was issued for recovery of the outstanding loan of Rs.3,52,456/-. 4. The petitioners, being aggrieved by the notice, preferred a dispute before the Co-operative Court contending that the respondent Bank was not entitled to recover the amount which was awarded after the lapse of 12 years. This dispute was preferred in 2002. The Co-operative Court held that the petitioners were not entitled to any relief and by its order dated 2.9.2006 held that the dispute was not maintainable and, therefore, dismissed the same. 5. Being aggrieved by the order, the petitioners preferred an appeal before the Co-operative Appellate Court under Section 152 of the Maharashtra Co-operative Societies Act. By the judgment dated 27.1.2007, the Co-operative Appellate Court dismissed the appeal thereby confirming the order passed by the Co-operative Court. The petitioners, therefore, preferred writ petitions in this Court and by an order dated 13.7.2008, a learned Single Judge of this Court dismissed the petitions. However, the petitioners were given liberty to raise the objections regarding limitation to the 4 execution of the decree before the Special Recovery Officer who was the executing authority. Accordingly, the petitioners preferred an application before the Special Recovery Officer in the execution proceedings on 8.8.2007 contending that the awards could not be enforced since 12 years had elapsed before the issuance of notice dated 5.8.2002. The objections raised by the petitioners were dismissed by the Executing Court. 6. It is submitted on behalf of the petitioners that the awards could not be executed after a period of 12 years. The learned advocate points out that the awards were passed on 21.9.1989 and, therefore, the respondent Bank ought to have executed them immediately rather than waiting for over 12 years. He points out that the notice dated 5.8.2002 being a notice before attachment, could not be acted upon since the petitioners were not served in accordance with law. It is further contended that the notice of 5.8.2002 is a show cause notice for initiation of execution proceedings, however, the execution proceedings were initiated after 12 years from the date of the award and, therefore, are barred by limitation. It is then pointed out that there was no material on record produced by the Bank to prove service of the notice of the awards on the petitioners and hence the awards could not be executed under Rule 107(11)(a) 5 and (b) of the Maharashtra Co-operative Societies Rules. 7. The learned advocate for the respondent Bank brings to my notice the letter issued by the advocate for the petitioners in the year 1990 in which he has acknowledged the debt due and payable to the respondents on account of the award having been passed. He submits that, once there is an acknowledgement of the debt, then the petitioners cannot contend that the execution proceedings should have been initiated earlier and not in 2002. The learned advocate further points out that, during the proceedings when the awards were passed, the Co-operative Court had passed a conditional order of attachment on 27.10.1987 which continued till the matters were decided and thereafter during the proceedings in the appeal. He submits that this order was a step in furtherance of execution of the awards. He points out that the notice dated 5.8.2002 being a notice before attachment, mentions the fact that an earlier notice was issued on 26.12.1998 to the petitioners for recovery of the loan amount. The learned advocate further submits that this is another frivolous attempt on the part of the petitioners to avoid payment of a loan which has been outstanding from 1983. 6 8. The question which I am called upon to decide is, whether the execution proceedings have become barred by limitation since the awards were passed on 21.9.1989. It would be necessary to ascertain whether the notice issued in 1998 by the respondents to the petitioners would indicate that the awards were put into execution well within time. 9. The material on record does indicate that the petitioners were well aware of the awards and that they had information that the amounts were due and payable by them to the respondent Bank. Having failed to pay the amounts from 1983, the petitioners are making desparate attempts to avoid repaying the loan. The Bank, it appears, has complied with the provisions of Rule 107(11) by issuing the demand notice on 26.12.1998 i.e. within 12 years of the awards having been passed. The fact that the awards had been passed was well known to the petitioners as also the fact that a conditional order of attachment had been passed in respect of the aforesaid flat. As rightly submitted by Mr.Walawalkar on behalf of the Bank, the conditional order of attachment was a step taken in aid of execution of the awards. 10. The petitioners had acknowledged the debt in 1990 7 itself when they sought time to make the payment by issuing a letter dated 15.1.1990. Again on 15.2.1999 they informed the respondent Bank that it was difficult for them to make the payment because of their financial difficulties and the market conditions prevailing at that time. Thus, in my opinion, the Executing Court has not committed any error by rejecting the application filed by the petitioners. 11. The learned advocate for the petitioners has relied on the judgment of the Kerala High Court in the case of N. N. N. Vittal Prabhu v/s Shrimath Auamtheshwara Temple, Vittal Prabhu v/s Shrimath Auamtheshwara Temple, Vittal Prabhu v/s Shrimath Auamtheshwara Temple, Manjeshwar Manjeshwar Manjeshwar & ors., reported in A.I.R. 1986 Kerala 221, & ors., reported in A.I.R. 1986 Kerala 221, & ors., reported in A.I.R. 1986 Kerala 221, wherein the Kerala High Court has held that the limitation of 12 years cannot be computed from the date of the acknowledgement of liability. It is held that a decree must be put into execution within 12 years and unless that is done, the decree is time barred. There can be no quarrel with this proposition. However, the fact remains in the present case that the petitioners were well aware of the award. They had issued a notice in the year 1998 itself for execution of the awards. There is no material on record nor any pleading in the petitions where receipt of this notice has been denied. The denial is to the receipt of the notice dated 5.8.2002. Moreover, an order granting conditional 8 attachment was passed during the pendency of the trial, which continued even after the awards were passed and thereafter while the appeals were being heard. 13. In my opinion, therefore, the petitions are misconceived and frivolous and must be rejected. The impugned orders do not require to be interfered with under Article 227 of the Constitution of India as they do not suffer from any perversity nor is there any error apparent on the face of the record. Accordingly the petitions rejected. 14. The learned advocate for the petitioers seeks a stay of this order. In my opinion, there is no need to grant a stay. Application rejected. .....