*1* OAR-4-NMIS-30.sxw Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.30 OF 2011 IN INSOLVENCY PETITION NO.116 OF 1971 ALONG WITH OFFICIAL ASSIGNEE’S REPORT NO.4 OF 2011 Ismail R. Peerbhoy & Ors. ... Petitioning Creditors V/s. Mathuradas Govindji Thakkar (Decd.) ... Insolvent And Bhanumati B. Thakkar & Ors. ... Applicants And Anand Baddi & Ors. ... Respondents Mr. Manoj Prajapati with Ms. Astha, i/b. Mr. Hemant Ingle, for the Applicant. Mr. Dinesh C. Shah for Respondent Nos.1(a) to 1(d). Ms. Vandana Thakkar, Legal Heir of the Deceased Insolvent. Mr. S.T. Kapse, Official Assignee, present in person. CORAM : S.C. DHARMADHIKARI, J. DATE : 9 th December, 2011. P.C. : 1. This Notice of Motion has been placed before the Court and the Applicants were heard extensively on two occasions. The Applicants have sought the following reliefs by this Notice of Motion : “(a). That this Hon’ble Court be pleased to hold that the Report dated 22/05/1995 passed by the Official Assignee to enable the Annulment of the Insolvency Proceedings was erroneous and be set aside; *2* OAR-4-NMIS-30.sxw (b). That this Hon’ble Court be pleased to hold that the order of Annullment dated 05/09/1996 is based on incorrect facts and be set aside; (c). That this Hon’ble Court be pleased to pass an order of Annulment on the basis of the correct facts to be filed by the Official Assignee and further direct the Respondent No.7 being the Official Assignee to execute the said Order of Annullment as per law; (d). That this Hon’ble Court be pleased to declare and hold that Deed of Conveyance dated 4-7-1973 in respect of the said property more particularly described in the Schedule ‘A’ annexed hereto stood in the name of Purshottam Ganpat Baddi and/or his heirs and the same is valid, binding, subsisting and in force; (e). That this Hon’ble Court be pleased to direct the Official Assignee to register the Conveyance dated 4-7-1973 in favour of the Applicants and to mutate the names of the Applicants in the record of rights of the said property; (f). That this Hon’ble Court by an interim order of injunction be pleased to restrain the respondents their agents, servants or any one claiming through them from creating any further rights in respect of the said property more particularly described in the schedule annexed hereto; (g). Pending the hearing and final disposal of this Application, this Hon’ble Court be pleased to pass an order of interim injunction restraining the Respondents, their agents, servants or any one claiming through them in any manner dealing with the said property and creating any further rights in respect of the said property more particularly described in the schedule annexed hereto at Exhibit-’A’; (h). Ad-interim and interim reliefs in terms of prayer clause (g) above; (c). Cost of the Motion be provided for” *3* OAR-4-NMIS-30.sxw 2. At the request of the Applicants' Advocate, this Notice of Motion is allowed to be withdrawn with liberty to file appropriate proceedings/suit to establish the right, title and interest of the Applicants in the subject immovable property. 3. The learned Advocate for the Applicants prays that for a period of six weeks from today, no steps be taken so as to comply with either the notice of the Bombay Municipal Corporation or to sell the property. 4. The heirs and legal representatives of the deceased Insolvent and particularly Ms. Vandana Thakkar has brought to my notice the fact that the Bombay Municipal Corporation has declared the building “Akshay Niketan” as a dilapidated and uninhabitable structure. It is required to be pulled down, according to the notice of the Bombay Municipal Corporation, after it reaching this satisfaction and opinion. It is, therefore, submitted that one of the Applicants may be residing in the building, but because of his non co-operative attitude, why the building cannot be demolished or pulled down in compliance of this notice, is the issue. 5. The Applicants’ Advocate states that the notice has been issued for quite some time, but the structure is still in tact and at the risk of the Applicants, they may be protected for a period of six weeks. 6. After hearing both the sides on this point, I am of the opinion that, in the interest of justice, it is directed that for a period of six weeks, the Official Assignee shall not take steps to dispose off or sell this property. However, since Bombay Municipal Corporation is not before me and since it is performing a statutory duty, this order does not prevent the said Corporation from acting upon its notice in any manner and the said Corporation shall take such steps as are permissible in law. *4* OAR-4-NMIS-30.sxw 7. This order is passed only to enable the Applicants to file independent and substantive proceedings, as indicated above. This order shall not be construed as expression of opinion on merits of the controversy and all contentions in relation thereto are kept open. With this clarification, the Notice of Motion is disposed off as withdrawn with liberty as above. 8. There will be no order as to costs. 9. The report of the Official Assignee is disposed off with liberty to the heirs and legal representatives of the deceased Insolvent to apply for making over of the original Conveyance Deed to them, but, needless to state, that even if such an application is made, the Official Assignee not to hand over the original Conveyance Deed for a period of six weeks to enable the Applicants to obtain appropriate orders from the Competent Court. Equally, even if such an application is made, but if a Suit or other proceedings are instituted by the Applicants, needless to state, that the Official Assignee will have to abide by any order and direction therein. (S.C. Dharmadhikari, J.)