State Consumer Disputes Redressal Commission
Mr. Harinder Pal Singh Sandhu, vs Ms. Luisa Cristina Fernandes, on 5 February, 2014
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI- GOA RP No. 07/13 Mr. Harinder Pal Singh Sandhu, r/o Flat No. 310, Blue Beach Resort, Arpora, Bardez, Goa .Applicant v/s 1. Ms. Luisa Cristina Fernandes, d/oDomingos Jose Fernandes, r/o 31, Velington Street, Dobitalao, Mumbai Or Teacher at Holy Name High School, Wode House Road, Colaba Mumbai 400 003. 2. Mrs. Mary Menezes, d/o Domingos Jose Fernandes, r/o 31, Velington Street, Dobitalao, Mumbai 3. M/s. Shetty Coastal Development Pvt.Ltd., Having its office at R02010 Jinja Apartments, DattaMandir Compound, Opp. Damani Estate, Thane (W) 400 602. Through its Official Liquidator, Having Office at High Court of Mumbai, Bank of India Building, 5th Floor, M. G. Road, Fort, Mumbai 400 023. 4. Consumer District Redressal Forum, North Goa at Porvorim, Having its office at Porvorim, Porvorim, Goa. 5. ShriChandrakantKundaikar, s/oYemuKundaikar, r/o S-3, Maryland Apartments, Canca, Bardez, Goa. ...Respondents S.M.R.P. No. 01/2014 Applicant is represented by Adv. Shri. Colaco Respondents Nos. 1 & 2/Complainants are represented by Adv. Shri. Ms. Almeida Respondent No.3/OP is exparte Respondent No.5/Purchaser is represented by adv. Shri J. S. Vaz Coram: Shri. Justice N.A. Britto, President Shri. Jagdish G. Prabhudessai, Member Dated:- 05/02/2014 ORDER
[Per Shri Justice N. A. Britto, President] These Revisions can be conveniently disposed off by this common order.
2. Revision Petition No.07/13 is directed against orders dated 17/10/2006 (ordering attachment), 13/08/2007 (dismissing applicants objections) 29/10/2007 (correcting the description of the property) and 17/01/2008 (handing over the possession of the suit flat to Respondent No.5/ Purchaser) of the Lr. District Forum in Execution Application No.05/06 arising from C. C. No.105/2000. S.M. Revision Petition No.01/2014 is directed against Final Order dated 27/04/05 in the said C.C.
3. The Applicant had earlier filed a revision petition before this Commission being RA No.12/2007, and, thereafter the Applicant filed a writ petition bearing no. 92/2008 before the High Court of Bombay at Goa, and, with a view to pursue the said writ petition, the Applicant, later withdrew the revision petition on 13/03/2008.
4. The writ petition was not entertained by the High Court by its order dated 29/01/2013. Nevertheless, liberty was given to the Applicant to file a revision petition with a period of 30 days, and, that is how the Applicant is before this Commission, in this revision petition.
5. The Applicant has become the owner of the suit property along with buildings (property admeasuring 11640 sq.m. situated at Arpora, having several survey numbers) by virtue of a sale deed dated 02/06/06 executed in the Applicants favour by Shri S. C. Gupta, Official Liquidator appointed by the High Court of Bombay at Mumbai in Company Petition No.990/02.
The Applicant was earlier put in possession of the said property on 11/05/2005 by the Court Receiver appointed by 5th Co-operative Court, Mumbai pursuant to Order of the High Court dated 05/05/05. This property was advertised for sale by the said Official Liquidator by notice published, including a notice published on `Navhind Times dated 13/02/2005 and in an auction conducted on 12/11/2007 the applicant was adjudged as the highest bidder, having offered Rs.1.10 crores.
The Applicant had deposited the said amount and the auction sale in his favour was confirmed by the High Court by order dated 04/03/2005. The Applicant has claimed that after purchase of the suit property he completed the structures situated thereon. There is no counter to this statement.
6. The disputed flat is flat No.1, on the ground floor, of Building No.5 in Little Baga Holiday Homes now known as Blue Beach Resort.
7. The suit property earlier belonged to M/s.
Shetty Coastal Development Pvt. Ltd. (Company, for short) by virtue of a sale deed dated 23/11/1994 and the said Company had undertaken construction of residential flats/apartments under the name and style of Little Baga Holiday Homes, before it went into liquidation. Inspite of the Revision being adjourned on several occasions, the parties have not been able to inform this Commission whether the Company has been wound up.
8. The Respondents Nos.1 and 2 (Complainants, for short) by virtue of an agreement dated 26/04/1995 agreed to purchase from the said Company, flat no.1, on the ground floor of the said project having a built up area of 280 sq. ft. for a sum of Rs.2,03,000/- and had paid consideration of Rs.1,72,550/-. The Complainants, contending that the Company had failed to give possession of the said flat, as stipulated in the said agreement dated 26/04/1995, filed the complaint on 27/06/2000 before the North Goa District Forum against the said Company and its Managing Director praying therein for an order to hand over the possession of the flat, completed in all respects, and for compensation of Rs.50,000/-.
9. The complaint was contested by the Company who took various defences including that they could not complete the building because of recession and their loan liability had mounted. The Company even filed written submissions way back on 10/03/03.
10. Thereafter the Lr. District Forum appears to have gone into slumber, after informing the Complainants on 19/05/03 that the order would be communicated (OP Company was absent on that day). The order disposing the complaint came to be passed on 27/04/2005 (signed on 28/04/2005). The said order reads as follows:
(1) Opposite Party is directed to hand over possession of the suit flat fully completed to the Complainant alongwith transfer of ownership rights of the suit flat in the name of the Complainant within 30 days from receipt of this order failing which Opposite Party will have to refund the amount of Rs.1,72,550/- back to Complainant at an interest rate of 18% p.a. per annum calculated from 26/10/1997 till the date of final payment.
(2) Opposite Party is directed to pay compensation of Rs.25,000/- to the Complainant for the hardship suffered by her for the last 7 years.
(3) Parties to bear their own costs
11. This final order could not be served on the OP Company as by this time the Company had gone into liquidation by virtue of an order passed by the High Court of Bombay at Mumbai on 20/02/04 in the said Company Petition No.990/2002 in which, by order of the same date, Official Liquidator was appointed as provisional liquidator.
12. As already stated, subsequently the suit property was sold by a public auction at which the offer of the Applicant was accepted at Rs.1.10 crores and confirmed by the High Court by order dated 04/03/2005 and by virtue of order dated 05/05/2005 possession was directed to be given to the Applicant and a sale deed was also directed to be executed in his favour.
13. Admittedly, in terms of final order/decree dated 27/04/05 of the District Forum no possession was handed over to the Complainants within 30 days as stipulated by the final order and therefore the Complainants filed an execution application on 06/03/2006.
14. A bare reading of the said execution application would show that the application was filed to recover Rs.1,72,550/- with interest @ 18% p.a. calculated from 26/10/1997 and compensation of Rs.25,000/-. The OP Company which by then, as already stated, had gone in liquidation was served by publication but nobody contested the execution application and the Complainants on or about 25/09/2006 filed an application for attachment of the assets of the Judgment Debtors i.e. the Company purported to be under Order 21, Rule 30 CPC. The Lr. District Forum granted the said application dated 25/09/06 by order dated 17/10/06. Later proclamation for sale of the suit flat was published on 29/10/07 as a result of which at an auction held on 12/11/2007, respondent no.5, became the highest bidder of the suit flat for Rs. 6 lacs which he deposited by two instalments and was put in possession of the flat on 17/01/2008.
Thereafter, it appears that the entire sum/price paid by respondent no.5, along with accrued interest, i.e. Rs.6,01,109/- was paid to the Complainants on or about 03/06/2008 and the Complainants then withdrew the execution application contending that the decree/ final order was fully satisfied. Complainants would not have been entitled to anything more than Rs.3,54,483/- as on that day, in terms of the final Order of the District Forum.
However, they walked away with Rs.6,01,109/-.
15. Coming to the present controversy, the applicant filed an application dated 16/11/06 before the Lr. District Forum, styling the same, as an application for intervention and sought, inter alia, for stay of the operation of the order dated 17/10/06 (ordering attachment) after setting out facts as to how the applicant had become the owner of the suit property and the suit flat. The applicant stated that he was shocked and surprised to see the notice of attachment pasted on the building on 11/11/06 and that great prejudice and irreparable loss would be caused to him if the said order dated 17/10/2006 was not stayed.
The Applicant stated that since the Applicant had become the owner of the property, the District Forum was not justified in directing to hand over the possession of the flat to the Complainants. Applicant stated that the complaint filed by the Complainants was not maintainable after the OP Company went into liquidation and whatever the grievances the Complainants had they had to go with the same to the official liquidator.
15.1 This application of the applicant dated 16/11/06 came to be dismissed by the Lr. District Forum by order dated 13/08/07, inter alia, observing that the JD Company had failed to bring to the notice of the District Forum the filing of the Company petition and had even filed affidavit in evidence. The Lr. District Forum had observed that the proceedings of proclamation and attachment were done as per procedure of law and the JD Company had failed and neglected to place on record the existence of the agreement dated 26/04/1995 before the Honble High Court in the Company petition and it was the duty of the JD Company to place this issue before the official liquidator and DH cannot be expected to take part in the proceedings of the High Court (official liquidator) as they are not aware of the same.
The Lr. District Forum also observed that the first charge on the flat and its undivided share in little Baga at Calangute, Bardez-Goa was of the DH and hence the DH was legally entitled to get the order of the Forum executed and as such proceeded to dismiss the said application dated 16/11/06 (wrongly mentioned as of 8/03/07).
16. We are unimpressed with the reasoning adopted by the Lr. District Forum in dismissing the Applicants application dated 16/11/06.
17. Three questions arise for our consideration.
18. The first.
Whether the final order of the Lr. District Forum is legal ?
18.1 Shri. Collaco, the lr. advocate of the Applicant would submit that the Consumer Forum had no jurisdiction to decide the consumer complaint after the company against whom it was filed, had gone into liquidation.
18.2 Ms. Almeida, the lr. advocate of the Complainants, would submit that the complainants did not know that the OP company had gone into liquidation.
18.3 We are inclined to accept the submission of Shri. Collaco, the lr. advocate of the applicant.
Section 446 of the Companies Act, 1956 reads as follows:
Section
446.
Suits stayed on winding up order-
(1) When a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of winding up order, shall be proceeded with, against the company, except by leave of the court and subject to such terms as the court may impose.
(2) The court which is winding up the company shall, not withstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of-
(a) any suit or proceeding by or against the company;
(b) any claim made by or against the company (including claims by or against any of its branches in India);
(c) any application made under section 391 by or in respect of the company;
(d) any question of priorities or any other question whatsoever whether of law or fact, which may relate to or arise in course of the winding up of the company;
Whether such suit or proceeding has been instituted, or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960.
(3)Any suit or proceeding by or against the company which is pending in any court other than that in which the winding up of the company is proceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by the court.
(4)Nothing in sub-section (1) or sub-section (3) shall apply to any proceeding pending in appeal before the Supreme Court or High Court.
18.4 Admittedly, the Complainants did not inform the Lr. District Forum, before passing the final order on 27/04/05, that the OP company was ordered to be wound up and a liquidator was appointed on 20/02/04 in Company Petition No. 998/2002. The Complainants are residents of Mumbai. Not that it would make any difference, in case the Complainants were the residents of this State.
The Company petition was filed before the High Court of Bombay at Mumbai because the registered office of the Company was situated within the jurisdiction of the High Court at Bombay in Mumbai and that is as per Section 10 of the Companies Act, 1956 as noted by the Madras High Court in Sudarshan Chits (India) Ltd., Madras vs. Official Liquidator, High Court of Kerala, (1992) 1 Comp. LJ 34. Winding up proceedings take place after much publicity including by publishing of notices on the newspapers, informing the Registrar of Companies as well as publishing winding up orders on the Official Gazette and this is done so that the creditors and shareholders of the company who could be spread all over the country know about the winding up proceedings. The Complainants, therefore, can ill afford to say that they did not know about the pendency of the said company petition filed before the High Court of Bombay at Mumbai admitting the petition and appointing the official liquidator as provisional liquidator. A Company which was ordered to be wound up could not be expected to place the agreement dated 26/04/95 before the company. Whether the directors of the company should have done it, is another matter.
18.5 The object of Section 446 of the Companies Act, as can be seen from a copy of the Commentary produced at page 75 of EA No. 05/06 is to save the company which is being wound up from unnecessary litigation and to protect its assets for equitable distribution among its creditors and its shareholders. This being the object, of section 446 of the Companies Act it is apparent that all those matters where the claim of such a nature could be investigated by the winding up Court, would be within the purview of Section 446.
18.6 This Commission in MA No. 05/07 filed by Dhananjai V. Coutankar and anr. by order dated 22/07/13 has held that the object of Section 446(1) is to see that the assets of the Company are brought under the control of Winding up Court to avoid, wherever possible, expensive litigation and to see that all matters in dispute which are capable of being expeditiously disposed off by the Winding up Court are taken up by that Court. The object is to facilitate the protection and realization of its assets with a view to ensure an equitable distribution thereof among those entitled and to prevent the administration from being embarrassed by a general scramble among creditors and others. Consequently, once the Court has taken the assets of a company under its control or has passed an order for its being wound up, it will not be proper to allow proceedings to be started or continued against the company and embarrass the administration of its affairs. The section is intended to safeguard the assets of a Company in winding up against wasteful or expensive litigation in regard to matters capable of being determined expeditiously and cheaply by the Winding up Court itself. This section is concerned with rights of creditors to enforce their claims against the Company and Parliament did not intend them to apply to other action. It has been held that where an execution proceeding is pending at the time of order, its continuation, would require leave for the Court. (emphasis supplied).
18.7 Again the object behind Section 446 of the Companies Act can be seen from AIR 1984 SC 1579 as reproduced in Sudarshan Chits (India) Ltd., Madras (supra):
7 To save the company which is ordered to be wound-up from this prolix and expensive litigation and to accelerate the disposal of winding-up proceedings, the Parliament devised a cheap and summary remedy by conferring jurisdiction on the Court winding-up the company to entertain petitions in respect of claims for and against the company.
This was the object behind enacting section 446(2), and therefore, it must receive such construction at the hands of the Court as would advance the object and at any rate not thwart it.
The Madras High Court further held that :
11.
Thus the object of section 446 of the Companies Act is to save the company which is being wound-up from unnecessary litigation and to protect its assets for equitable distribution among its creditors and its shareholders. This being the object of section 446 of the Companies Act, it is apparent that all those matters where the claim of such a nature can be investigated by the winding-up Court, would be within the purview of section 446. See LIC of India v. Asian Udyog (P) Ltd., (1984) 55 Comp. Case 187 (FB). In that judgment, the Delhi High Court held that proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 may be commenced before the authorities under that Act without obtaining leave under section 446 of the Companies Act and that no execution or recovery can be made except after obtaining leave under section 446(1) of the Companies Act. In ITO v. Official Liquidator, Swaraj Motors (P) Ltd. (1982) 52 Comp. Case 152, a Division Bench of this Court held that the provisions of the Companies Act are special and it will prevail over the provisions of the Income-tax Act which was a general provision. It was also observed that section 446 besides being special, contain a non-obstante clause also. This Court held that sanction of the Company Court was necessary before enforcing claim for interest for delay in payment of income-tax by a company which is being wound-up.
14. In case any creditor of the company files a claim before the authority under the Consumer Protection Act and secures an order in his favour and the company is forced to pay that amount, that will really amount to preferring that creditor to other similarly placed creditors. It is in order to avoid such a situation that the Companies Act provides for settlement of list of creditors after due notice to all creditors.
The circumstance that the company after winding-up is being revived under sections 391 to 394 of the Companies Act will not alter the above position.
16. Under the circumstances, I hold that the authorities constituted under the Consumer Protection Act have no jurisdiction to consider the claims of the creditors of companies which are being wound-up under the provisions of the Companies Act, 1956. (emphasis supplied) 18.8 A consumer complaint is certainly a legal proceeding within the meaning of sub section (1) of section 446 of the Companies Act, 1956. As held by this Commission in unreported decision dated 22/07/13 in MA No. 05/07, in the case of Dhanajay Couthankar the expression legal proceeding is used in broad sense and in its normal connotation proceedings taken in accordance with law or proceedings authorized by law for redressal of legal grievance or for vindication of legal rights or proceeding in a Court of justice by which a party pursues remedy which the law affords him would be a legal proceeding.
18.9 Sub section (1) of Section 446 of the Companies Act creates an embargo from commencing a legal proceeding or if pending, being proceeded with against the Company, when a winding order is made, except by leave of the Court (Company Court) and subject to such terms as the Court may impose. It is, therefore, obvious that the Lr. District Forum could not have proceeded with the claim of the complainants without the leave of the Company Court/ Winding up Court after 20/2/04 and as such the final order dated 27/4/05 of the District Forum has got to be considered as one without jurisdiction and therefore liable to be set aside. We are in respectful agreement with the conclusion arrived at by the Madras High Court in para 16 in Sudarshan Chits (India) Ltd., Madras (supra).
19. The second. Whether the Lr.
District Forum could have ordered the attachment of the suit flat, as done by order dated 17/10/06?
19.1 We have already noted that the Complainants in the execution application were seeking only to recover of Rs.
1,72,550/- with interest and compensation awarded by virtue of the said final order dated 27/4/05. They were not seeking to recover the possession of any flat and that is also evident from the fact that the Complainants did not insist in possession being given to them of any flat in as much as the same could not have been given, if not given within 30 days, of the final order dated 27/04/05.
19.2 Enforcement of orders passed by the Fora under C.P. Act can now be done only under Section 25 and Section 27 of the C.P. Act, 1986, and as stipulated therein, proceedings under Section 25 and Section 27 are distinct, different and separate. Section 25 came to be substituted w.e.f. 15/3/03. Sub section (1) and (2) of Section 25 deal with enforcement of interim orders passed by the Fora under the C.P. Act while sub section (3) deals with enforcement of orders, other than interim orders. Sub section (3) of Section 25 of the C.P. Act provides that where any amount is due from any person under an order made by a District Forum, State Commission or National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, State Commission, or the National Commission, as the case may be, and as such District Forum or State Commission or National Commission may issue a certificate for the said amount to the Collector of the District (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue.
19.3 Section 27 of the C.P. Act provides for penalty in case the person against whom a complaint is made omits to comply with an order made by the District Forum, State Commission, or the National Commission. Section 27 was renumbered as sub section (1) and subsections (2) and (3) were added w.e.f. the same date i.e. 16/02/03.
19.4 This Commission has taken a view in MA No. 05/07 by order dated 22/07/13 that it is fairly well settled that section 27 of the C.P. Act confers an additional power upon the Forum and the Commissions to execute its orders. The same view is also taken by the Division Bench of Andhra High Court in Writ Petition No.5478/08 filed by M/s. Mega City Builders by order dated 29/04/13 by observing that the power conferred under section 27 of the Act is in addition to the power conferred under section 25 of the Act and it is open to the Complainant to invoke both the remedies even simultaneously. There can be no dispute that Section 25 of the C.P. Act is prospective in operation and this has also been otherwise held by the Andhra Pradesh High Court in the case of M/s. Mega City Builders vs. S.I. Sawhney & anr. (supra).
19.5 With effect from 15/03/03 and with substitution of section 25 and modification of section 27 of the C. P. Act, there are only two modes to execute the orders passed by the Fora. With the substitution of Section 25 of the C.P. Act w.e.f. 15/03/03 the Lr. District Forum could not have executed the final order as a decree of the Civil Court or send it to the Civil Court for its execution and that being the position the powers of attachment and sale under order 21, Rule 30 were not available to the Lr. District Forum after 15/03/03.
Powers which are not expressly given, cannot be exercised. (Rajeev Hitendra Pathak and ors. (2011 (5) ALL MR 951). Since the complainants were executing the final order, in the nature of a money decree, the Complainants ought to have applied for a certificate to be issued to the Collector to recover the amount due. In other words, the final order/decree being in the nature of money decree, as ordinarily understood, had to be executed strictly by following the procedure of sub section (3) of Section 25 of the C.P. Act or under Section 27 of the said Act. It appears that the Complainants did make a prayer in the application for execution for imposition of penalty under Section 27 of the C.P. Act, but that prayer was not pursued any further. As observed by the Division Bench of the Andhra Pradesh High Court in Mega City Builders (supra) prior to substitution of section 25 w.e.f. 15/3/03 the order of the Fora under the Act could be enforced in the same manner as if it were a decree or order made by a Civil Court, and, therefore it was lawful for them in the event of inability to execute it to send it to a Civil Court having jurisdiction so as to execute the order as if it was a decree or order sent for execution but after substitution of Section 25 of the Act the recovery can be done only by issue of a certificate for the amount issued to the Collector who is required to recover the same in the same manner as arrears of land revenue.
19.6 The Maharashtra State Commission in Amir Ali Tharani, II 2011 CPJ 23 has also held that in an application u/s 25 (3) the Consumer Fora do not have powers to attach the property and/or to appoint a receiver and to deliver possession of the property. The State Commission has further held that:
It is clarified that the orders passed by the Consumer Fora are no more deemed to be a decree of the Civil Court so as to attract provisions of Order 21 of Code of Civil Procedure. After the amendment of Section 25, procedure as provided in old Section 25 is not applicable and therefore, the Consumer Fora cannot invoke powers under Order 21 of Code of Civil Procedure for execution of the order; after new Section 25 has been brought on Statue Book dated 15.03.2003 and, therefore, neither the Consumer Fora nor the Civil Court can now execute the orders of the Consumer Fora as if they are decrees of the Civil Court as was permissible under the old Section 25.
19.7 It is therefore obvious that the order of attachment dated 17/10/06 and subsequent orders passed thereto for sale, etc. are without jurisdiction and therefore deserve to be set aside.
20. The third. Whose property did the Complainants apply for attachment and sale and the Lr. District Forum ordered it to be attached and sold ?
20.1 The suit property alongwith the structures which earlier belonged to OP No. 3, Company, was in the hands of the Court receiver appointed by 5th Co-operative Court, Thane, West Mumbai. With effect from 30/02/04 the suit property was in custodia legis i.e. of the official liquidator Shri. S.C. Gupta. The Applicant was given possession of the suit property along with structures on 11/05/05 and became its exclusive owner by virtue of the sale deed executed in his favour on 02/06/06. On the date the Complainant filed an application for attachment of the suit flat on 25/09/06, the applicant had already become the owner of the suit property alongwith the buildings and structures including the suit flat and therefore it is obvious that the Lr. District Forum ordered attachment of a flat in a building in a property which did not belong to the Company but which was owned by the applicant herein.
20.2 Shri. Vaz, the lr. advocate for Respondent No. 5/purchaser would contend that Respondent No. 5 was in possession of the suit flat. Respondent No. 5 could not have been in possession of the suit flat, as the applicant was put in possession of the suit property alongwith the structures on 11/05/05 and had become its owner by virtue of sale deed dated 02/05/06 and his claim that he completed the buildings after he came in the possession of the suit property is fully justified. This claim is not disputed by any of the Respondents.
Even on 10/12/07 the suit flat was under lock as can be seen from memo of inspection.
20.3. Shri. Vaz would next contend that Respondent No. 5 is a bonafide purchaser at an auction held by the Lr. District Forum. We are not impressed with the submission, either. It is not even the case of Respondent No. 5, that Respondent No. 5 had verified the ownership of the flat he was proposing to bid at the auction. It is also not his case that he had even perused the records of execution proceedings. The auction took place on 12/11/07.
Applicant had set up his claim to the suit property and objections to attachments on 16/11/06. Had the Respondent No. 5 examined the documents filed by the applicant alongwith the said application, Respondent No. 5 would have come to know that he was bidding at an auction for a property which belonged to the applicant and not to the company which was ordered to be wound up and its properties were in the hands of the official liquidator.
20.4 Complainants could not have any first charge on any flat as the final order/decree was for recovery of money. Applicant may be right in contending that to recover a sum of Rs.1,72,550/-, his flat worth Rs.20 lacs has been sold for Rs.6 lacs. The orders passed by Lr. District Forum are grossly illegal, to say the least.
21. For reasons stated hereinabove, the revisions deserve to succeed and the final order dated 27/04/05 as well as the order ordering attachment dated 17/05/07 and all orders passed subsequent thereto are required and are hereby set aside.
22. Consequently, Respondent No. 5 is hereby directed to hand over the possession of the suit flat to the Applicant within 30 days.
The Complainants are hereby directed to hand over to Respondent No. 5 the said sum of Rs. 6,01,109/- with pending and future interest at the rate of 9% to Respondent No. 5 from 04/06/08 until payment. Complainants were not entitled to the said sum and wrongfully made use of the same. The Complainants are free to approach the Company Court or the official liquidator having his office at Bank of India Building, 5th floor, M.G. Road, Fort, Mumbai 400 023 or at any other address, with their claim against the company for Rs. 1,72,550/-.
23. Parties shall comply with this order within 30 days. Considering the facts, parties are left to bear their own costs.
[Shri Jagdish G. Prabhudessai] [Shri. Justice N.A. Britto] (MEMBER) (PRESIDENT) lm/-
sp/-