Bombay High Court
M/S. Paper Box Company, Through Its ... vs Cosmos Co-Operative Bank Ltd. And Ors on 10 June, 2024
Author: Gauri Godse
Bench: Gauri Godse
2024:BHC-AS:22802
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Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9846 OF 2017
M/s. Paper Box Company of India
a Partnership Firm, duly registered
under the provisions of Indian
Partnership Act 1932 acting through
its partner Mr. Kamal Bhatiya and
having its registered office at Paper
Box House, Mahakali Caves Road,
Mumbai - 400 093. .....Petitioner
Vs.
1. Cosmos Co-operative Bank Ltd.
having its office at 36A, Maru, Niketan
D.L. Vaidya Road, Dadar (West),
Mumbai - 400 028.
2. M/s. Kalapi Flexible Containers
Ltd., Registered Office at : 4/5,
Rajwadi Shopping Centre,
Chakalasahar Road, Opp.
Cigarette Factory, Andheri (East)
Mumbai - 400 009.
3. Mr. Firoz Kasamali Nanji
4. Mrs. Shirin Firoj Nanji
Respondent Nos. 3 and 4 C/o.
M/s. Kalapi Flexible Containers
Ltd. Registered Office at : 4/5,
Rajwadi Shopping Centre, Chakala,
Sahar Road, Opp. Cigarette
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Factory, Andheri (East),
Mumbai - 400 009. ....Respondents
Mr. Ashish Gatagat a/w Mr. Vivek Shiralkar, Yashoda Desai, Vijay
Poojari i/b Shiralkar and Co. for the petitioner
Ms. M. P. Thakur, AGP for the State
CORAM: GAURI GODSE, J.
RESERVED ON: 28th FEBRUARY 2024
PRONOUNCED ON: 10th JUNE 2024
JUDGMENT:
BASIC FACTS:
1) This petition is filed to challenge the Judgment and Order passed by the Co-operative Appellate Court dismissing the petitioner's appeal.
The petitioner had filed an appeal for challenging the order passed by the Co-operative Court holding that the petitioner had no subsisting right in the attached flats. The dispute was filed by the bank to recover the outstanding dues from respondent no. 2. Respondent nos. 3 and 4 are the directors of respondent no. 2. The petitioner claiming right, title and interest in the attached flats, had filed an application to get impleaded in the dispute and also prayed for releasing the attachment.
2) The petitioner claimed right, title and interest in the attached flats 2/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx as owner based on an agreement dated 28 th May 1997 and tenancy rights in favour of M/s. Papco Investment Corporation under tenancy agreement dated 22nd December 1995. The petitioner claims to have paid an amount of ₹30 Lakhs to respondent no. 2. The petitioner further claims that respondent nos. 3 and 4 had executed power of attorney in favour of one Mohan Bhatiya and Radhika Bhatiya, empowering them to enter into negotiations for the sale of the attached property and execute the required documents. The attached properties are flat nos. 411 and 412, which stood in the name of respondent nos. 3 and 4 ('said flats").
3) The petitioner claims to have paid the amount towards the first charge on the said flats raised by M/s. TCI Finance Limited. The petitioner claims to have repaid the amount by filing consent terms in execution proceedings initiated in this Court for the execution of the decree passed in the Secunderabad suit in favour of M/s. TCI Finance Limited. The petitioner thus claims that respondent nos. 3 and 4 thereafter executed an agreement for sale on 28 th May 1997 for transferring the said flats in the name of the petitioner. Respondent no.-1 bank filed a recovery suit in the Co-operative Court against 3/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx respondents nos. 2 and 3. In the said suit, an ex-parte order for attachment before Judgment was passed and a special recovery officer was appointed for execution of the order of attachment before Judgment. Hence, on 23rd June 1997, the petitioner informed respondent no. 1 that right, title, and interest had been created in favour of the petitioner, and the society has also issued no objection certificate ("NOC") for the transfer of the said flats in the name of the petitioner. It is the petitioner's case that in such circumstances, they filed an application in the Bank's suit for getting impleaded as a party defendant. Petitioner also filed a separate application for vacating the order of attachment before Judgment. The petitioner's applications were rejected. The Bank's Dispute application was allowed, directing respondent nos. 2 to 4 to pay the outstanding dues with interest, and the attachment of the flats was continued till the realisation of the awarded amount. Hence, the petitioner had filed two separate appeals. The cooperative appellate court disposed of the said appeals by a common judgment and order setting aside the rejection of the petitioner's applications and setting aside the continuation of the attachment order. The cooperative appellate court remanded the 4/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx matter to the cooperative court for holding an inquiry on whether the petitioner had any subsisting right in the attached flats. After remand, the Co-operative Court decided the objection raised by the petitioner and declared that there was no subsisting right of the petitioner in the attached flats. Hence, the petitioner had filed an appeal before the Co- operative Appellate Court. However, the said appeal is dismissed, resulting in confirmation of the order of attachment passed in favour of respondent no. 1. Hence, the present petition.
SUBMISSIONS ON BEHALF OF THE PETITIONER:
4) Learned counsel for the petitioner submitted that the said flats are owned by respondent nos. 3 and 4 in their individual capacity and they have created right, title and interest in favour of the petitioner much before the order of attachment. It is submitted on behalf of the petitioner that the dispute filed by the respondent bank was finally disposed of by Judgment and Award dated 31 st July 1997, directing respondents nos. 2 to 4 to jointly and severally pay the outstanding amount with interest and by the said final Award, the order of attachment before Judgment was directed to be continued till 5/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx execution of the Award. The said part of the Judgment and Award directing the continuation of the attachment was challenged by the petitioner by filing an appeal that was allowed, thereby setting aside the continuation of the order of attachment. Thus, it is the submission on behalf of the petitioner that once the continuation of the order of attachment was set aside by the Co-operative Appellate Court, respondent no. 1-bank was not entitled to proceed further on the basis of the attachment of the said flats as directed during the pendency of the dispute.
5) Learned counsel for the petitioner submitted that the agreement for sale was also executed in favour of the petitioner much prior to the order of attachment. Hence, a conjoint reading of Sections 54 and 55 of The Transfer of Property Act, 1882, the contract entered into between petitioner and respondent nos. 2 and 3 would amount to creating a right in favour of the petitioner. He thus submitted that transfer in favour of the petitioner would not be affected by Section 95(3) of The Maharashtra Co-Operative Societies Act, 1960 ('MCS Act'). In support of the said submissions, learned counsel for the petitioner relied upon the decision of the Hon'ble Supreme Court in the 6/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx case of Vannarakkal Kallalathil Vs. Chandramaath Balakrishnan 1. Thus, by relying upon the said decision, the learned counsel for the petitioner submitted that the order of attachment would not override the contractual rights between the parties, which have created a substantial right, title and interest in favour of the petitioner. The agreement in favour of the petitioner was executed on 28 th May 1997 and was registered by a deed of confirmation dated 15 th April 1999. The challenge to the order of attachment before Judgment is not accepted by the Co-operative Court as well as the Appellate Court on the ground that the agreement for sale did not exist before the order of attachment was passed. Learned counsel submitted that the said observation by both the Courts is contrary to the proposition of law laid down by the Hon'ble Supreme Court in the said decision of Vannarakkal Kallalathil.
6) Learned counsel for the petitioner further submitted that the agreement for sale in favour of the petitioner is subsisting as the validity of the same is not challenged or questioned by respondent no. 1 by adopting any appropriate proceedings. Hence, the agreement for 1 1990 3 SCC 291 7/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx sale in favour of the petitioner is valid and subsisting by accepting full consideration and handing over possession of the said flats to the petitioner. The shares with respect to the said flats are also transferred by the society in the name of the petitioner. The initial charge of M/s. TCI Finance Limited is cleared by the petitioner by making payment of the entire outstanding amount. Learned counsel thus submitted that rights were created in favour of the petitioner much before the order passed for attachment before Judgment was passed, which disentitles the respondent no. 1-bank to proceed further with respect to the said flats against the petitioner.
7) In support of the aforesaid submissions, learned counsel for the petitioner relied upon the order passed by this Court in an execution application filed in Secunderabad Suit No. 475 of 1997. He submitted that on 14th March 2012, an execution application filed by M/s. TCI Finance Limited in this Court is disposed of in terms of the consent terms. He submitted that the claim of M/s. TCI Finance Limited against respondent no. 2 was thus settled by the petitioner as the right, title and interest created in favour of the petitioner by respondent nos. 3 and 4 were accepted in the said proceedings.
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8) Learned counsel for the petitioner submitted that respondent nos. 3 and 4 are not principal borrowers, and the said flats stood in the name of respondent nos. 3 and 4 in their individual capacity. Admittedly, the said flats were never mortgaged with respondent no. 1- bank. Hence, right, title and interest created in favour of the petitioner much prior to the order of attachment before Judgment would disentitle respondent no. 1-bank to proceed against the said flats. Learned counsel for the petitioner submitted that the order of attachment before Judgment was an ex-parte order passed in respect of the said flats on 17th June 1997, though the said flats admittedly, were never part of the secured property with respondent no. 1 Bank.
9) By order of attachment before Judgment, the Court Commissioner was directed to take possession of the said flats and in the event any person was found occupying the said flat, the said persons were directed to be continued in possession as agent of the Court Commissioner. However, the Court Commissioner has never completed the procedure, and thus, the order of attachment before Judgment was never implemented.
10) The learned counsel for the petitioner submitted that much 9/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx before the agreement for sale was executed in favour of the petitioner, tenancy rights were created in favour of the sister concern of the petitioner, i.e. M/s. Pepco Investment Corporation and the society had also issued NOC for the grant of tenancy in favour of M/s. Pepco Investment Corporation. Partners of M/s. Pepco Investment Corporation and the partners of the petitioner are the same. Hence, the petitioner filed an application for vacating the order of attachment before Judgment. When the main dispute was disposed of, the Co- operative Court had directed that the order of attachment before Judgment shall continue till execution of the Award. However, in an appeal preferred by the petitioner, the order of attachment before Judgment was set aside. Hence, the respondent bank had no right to execute the order of attachment before Judgment. Thus, it was submitted on behalf of the petitioner that the application of the petitioner filed in the said dispute could not have been rejected on the ground that there was no subsisting right in favour of the petitioner.
11) Learned counsel for the petitioner relied upon the decision of the Hon'ble Supreme Court in the case of Bai Hakimbu and others Vs. 10/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx Dayabhai Rugnath2. Learned counsel for the petitioner specifically relied upon paragraphs 4 and 5 and submitted that the said decision was regarding the order of attachment not being in accordance with the provisions of Order XXXVIII, Rules 5 and 6 of the Code of Civil Procedure, 1908 ("CPC"). By relying upon the said paragraphs, learned counsel for the petitioner submitted that respondent no. 1 was required to first call upon respondent nos. 3 and 4 as well as the petitioner to furnish security or to produce the property or its value and appear to show cause as to why the property be not attached. In the event the concerned party fails to comply with the show cause notice or fails to furnish security, only then the attachment of the property can be ordered. Learned counsel for the petitioner submitted that the petitioners were in possession of the said flats based on an agreement for sale and were never given an opportunity or called upon to furnish any kind of security. He thus submitted that the order of attachment is not sustainable for the want of issue of the show cause notice and an opportunity for the petitioner to furnish the security. He thus submitted that unless the required process of attachment is not followed, the 2 AIR 1939 Bom 508 11/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx attachment cannot be termed as a valid attachment and there would be no attachment in the eyes of law. He thus submitted that even otherwise, the order of attachment before Judgment relied upon by respondent no. 1 is not a valid attachment as required under Order XXXVIII Rules 5 and 6 of CPC.
SUBMISSIONS ON BEHALF OF RESPONDENT NO.1:
12) Learned counsel for the respondent no. 1-bank supported the impugned Judgment and Order. Learned counsel for respondent no. 1 submitted that respondent no. 1-bank had sanctioned a loan in favour of respondent no. 2 by way of cash credit facility, bills discounting, term loan and letter of credit, which total amounted to Rupees 1 Crore 60 Lakhs. Since the outstanding dues were not paid by the borrower, the dispute application was filed by respondent no. 1 along with an application under Section 95 of the MCS Act read with Order XXXVIII Rule 5 for attachment before judgment and Order XXXIX Rules 1 and 2 of CPC praying for restraining the respondent nos. 2 to 4 from disposing of the said flats. Respondent nos. 3 and 4 being directors of the borrower, i.e. respondent no. 2, they had stood guarantors for the 12/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx loan availed by respondent no. 2 company. Hence, the application for attachment before Judgment was rightly allowed by the Co-operative Court for attaching the properties belonging to respondent nos. 3 and 4, who stood as guarantors for the repayment of the loan availed by respondent no. 2. The petitioner had filed an application for impleadment as a necessary party in the dispute. The said application was filed through one Shri. Kamal Bhatiya claiming that the said flats were given on a tenancy basis and subsequently purchased by the petitioner on 28th May 1997. However, the supporting documents would show that the tenancy agreement was never executed in favour of the petitioner and that the same was in the name of M/s. Pepco Investment Corporation. With reference to the petitioner's claim that even the society had issued a NOC for transferring the said flats in the name of the petitioner is concerned; learned counsel for respondent no. 1 submitted that perusal of the NOC would show that the same was a conditional NOC. There is nothing produced on record to show that the conditions were complied. Hence, the petitioner is not entitled to seek any benefit based on the said NOC. Thus, the application filed by the petitioner was rightly rejected by the Co-operative Court. 13/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 :::
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13) Learned counsel for respondent no. 1 further submitted that the petitioner had no subsisting right in the said flat as the agreement for sale dated 28th May 1997 did not create any right in favour of the petitioner. He further submitted that even confirmation of the agreement for sale by way of a registered confirmation deed would not create any right in favour of the petitioner as the said confirmation deed was a unilateral declaration made by the petitioner. Learned counsel for respondent no. 1 further pointed out that the registered confirmation deed is signed by the constituted attorney of the petitioner; however, the said authority was never enclosed with the confirmation deed. He thus submitted that the document of the agreement for sale could not be termed as a valid and legal document in support of the petitioner's claim that there is any right, title and interest created in favour of the petitioner in the said flats by respondent nos. 3 and 4. The petitioner's claim based on the tenancy document is dated 21st December 1995 and executed in favour of M/s. Pepco Investment Corporation and not the petitioner. Further reliance of the petitioner on the agreement for sale would also not create any right title and interest in favour of the petitioner as the said agreement 14/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx is executed by the constituted attorney claiming that respondent nos. 3 and 4 had executed power of attorney dated 23 rd December 1995 in favour of the partners of the M/s. Pepco Investment Corporation. By referring to the document of power of attorney, learned counsel for respondent no. 1 submitted that the said document was executed on a stamp paper of ₹90. Hence, the document is not admissible in evidence. Thus, it was submitted that neither the document of tenancy nor the document of agreement for sale would create any right, title and interest in favour of the petitioner for praying to vacate the order of attachment. He thus submitted that the Co-operative Court has rightly rejected the application filed by the petitioner, and the same is rightly confirmed by the Co-operative Appellate Court.
ANALYSIS:
14) I have considered the rival submissions made by both parties.
Before examining the rival contentions, it is necessary to refer to the basic undisputed facts. Respondent no. 1-Bank filed the Dispute for recovering outstanding dues of Rupees One Crore and Sixty Lakhs from respondents nos. 2 to 4. Respondent No. 2 - Company is the 15/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx principal borrower and respondents nos. 3 and 4 are the Directors of respondent no. 2, who stood as guarantors for the loans advanced to respondent no. 2. The two flats in question were not mortgaged with the bank. In the Dispute, the Bank filed applications for interim relief for restraining respondent nos. 3 and 4 from alienating the flats and also prayed for attachment of the two flats standing in the name of respondents nos. 3 and 4. By Order dated 17 th June 1997, Cooperative Court ordered the attachment of the flats and directed the court commissioner to take possession of the flats with a direction that if the respondents nos. 2 to 4 paid 50% of the outstanding dues, then the attachment should be released and respondents nos. 3 and 4 shall be restrained from parting with possession or creating third-party interest in the flats.
15) Admittedly, the outstanding dues were not paid. The petitioner filed applications in the dispute praying for impleadment as party and for releasing the attachment. By order dated 30 th July 1997, the petitioner's applications were rejected by the Cooperative Court. By Judgment and Award dated 31 st July 1997, the Dispute was allowed, directing respondents nos. 2 to 4 to pay the outstanding dues and the 16/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx attachment and injunction order was continued till recovery of the awarded amount. The petitioner filed two separate appeals to challenge the rejection of the petitioner's objection to attachment and to challenge the continuation of the order of attachment while allowing the Dispute. The Cooperative Appellate Court disposed of both appeals by a common judgment and order dated 22 nd October 2002 and set aside the order dated 30 th July 1997 and also set aside the order continuing the order of attachment pending execution of the Award. The appellate court remanded the matter to the cooperative court, directing it to decide whether the petitioner had subsisting rights in the flats.
16) The remand order was not challenged. Hence, it is the argument of the petitioner that once the order continuing the attachment was set aside while remanding the matter to the cooperative court, the bank had no authority to proceed with the attachment against the petitioner. I do not see any substance in this argument, as after the remand order, the cooperative held an inquiry and recorded a finding that there is no right, title or interest created in favour of the petitioner on the basis of documents relied upon by the petitioner and thus declared 17/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx that the petitioner had no subsisting right in the attached flats. By the remand order passed by the appellate court, the continuation of the order of attachment pending the execution of the Award was set aside to enable the cooperative court to hold an inquiry on the objection to the attachment raised by the petitioner and find out whether the petitioner had any subsisting right in the attached flats. Thus, only the continuation of the attachment order was set aside. Therefore, once after holding an inquiry on the petitioner's objection, it is declared that the petitioner had no subsisting right in the attached flat, the attachment continues.
17) A perusal of the judgment and order of the cooperative court indicates that the petitioner's oral as well as documentary evidence relied upon to claim right in the attached flats is not accepted. It was held that the tenancy agreement of 1995 relied upon by the petitioner was executed in the name of Pepco Investment Corporation and not in favour of the petitioner. The case of the petitioner, based on a power of attorney executed by respondent nos. 3 and 4 in favour of Pepco Investment Corporation was not accepted as the same did not confer any title in favour of the petitioner. It is held that the agreement dated 18/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx 28th May 1997, though executed prior to the order of attachment dated 17th June 1997, the same does not create any right in favour of the petitioner as the terms of the agreement provided for certain compliances before execution of the document of transfer. The confirmation deed is also not believed on the ground that it was not signed by the owners and did not confer any title. Thus, it was held that except for the right to protect possession under Section 53A of the Transfer Property Act 1882 ("TP Act"), the document relied upon by the petitioner did not confer any title in favour of the petitioner in view of Section 54 of the TP Act.
18) The appellate court also examined the oral and documentary evidence relied upon by the petitioner. After reappreciating the evidence, the appellate court confirmed the findings recorded by the cooperative court. Thus, the order deciding the petitioner's objection and declaring that the petitioner had no subsisting right in the attached flat is confirmed.
19) Respondents nos. 2 to 4 were given the option to secure the outstanding amount by paying or depositing 50% of it. However, respondents nos. 2 to 4 failed to even appear in the Dispute 19/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx proceedings and contest the case. Hence, the Bank's contentions in the dispute application remained uncontested. Thus, the cooperative court accepted the Bank's case and allowed the Bank's Dispute application directing respondents nos. 2 to 4 to jointly and severally pay the outstanding amount with interest. Admittedly, the show cause issued by the court was not answered, and the option given to deposit the 50% amount was not availed. Hence, the interim order of attachment was confirmed, and the Dispute application was allowed. The petitioner's objection to the attachment order was dismissed. Hence, while allowing the dispute application, directions were issued to continue the attachment till the full realisation of the awarded amount. Admittedly, the petitioner also failed to secure the outstanding amount. A perusal of the attachment order shows that directions were issued to take possession of the flats and continue the occupant in possession as the agent of the court receiver. Thus, in the absence of any cogent material to show that the petitioner had any subsisting right in the attached flats, the petitioner cannot be permitted to take any advantage by arguing that the attached flats were never actually attached or that the attachment order was not implemented by the 20/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx court commissioner. Thus, the decision of the Hon'ble Supreme Court in the case of Bai Hakimbu, relied upon by the learned counsel for the petitioner, is of no assistance to the case of the petitioner.
20) The petitioner is objecting to the attachment of the flats on the ground that a subsisting right is created in favour of the petitioner prior to the order of attachment. To substantiate the grounds of objection, the petitioner relies upon a tenancy agreement executed prior to the order of attachment. However, the tenancy agreement is not in favour of the petitioner. The tenancy agreement appears to be in the name of another company, Pepco Investment Corporation. The petitioner relies upon payment advanced to respondent no. 2 prior to the order of attachment and execution of an agreement for sale to secure the amount advanced. However, the said document does not confer any title to the petitioner. The petitioner also relies upon payment made to TCI Finance to clear the debts of respondent no. 2 by entering into consent terms in an execution application in this court for the execution of a decree passed by the Secunderabad court. However, none of the above creates any right, title or interest in favour of the petitioner in respect of the flats. Even the registered confirmation deed 21/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx executed after the attachment order is not signed by the owners and is a unilateral declaration. Thus, even the said document does not confer any title in favour of the petitioner. Thus, even assuming that there was some agreement executed in favour of the petitioner prior to the order of attachment, none of the actions claimed by the petitioner has culminated in conferring any title in favour of the petitioner. Hence, there is no substance in the reliance placed on Sections 54 and 55 of The TP Act. Therefore the decision of the Hon'ble Supreme Court in the case of Vannarakkal Kallalathil relied upon by the learned counsel for the petitioner is of no assistance to the petitioner's case.
21) There is also no substance in the argument of the learned counsel for the petitioner that the agreement for sale in favour of the petitioner subsists as the validity of the same is not challenged or questioned by the Bank. The obligation to substantiate the claim of having title to the flats was upon the petitioner. Once failed to establish any title to the flats, the Bank is entitled to proceed further against the attached flats to recover the outstanding amount in execution of the judgment and award.
22) Thus, I find substance in the arguments raised by the learned 22/24 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 ::: 2.9846.17 wp.docx counsel for the Bank. None of the supporting documents relied upon by the learned counsel for the petitioner regarding the tenancy agreement in the name of M/s. Pepco Investment Corporation, the conditional NOC issued by the society for transferring the said flats in the name of the petitioner, the agreement for sale and the confirmation deed, confer valid title in favour of the petitioner. Learned counsel for the Bank rightly pointed out that the registered confirmation deed is not signed by the owners and is signed only by the constituted attorney of the petitioner; however, the said authority was never enclosed with the confirmation deed. Thus, even if the document is registered, the same cannot be termed as a valid and legal document in support of the petitioner's claim that there is any right, title and interest created in favour of the petitioner in the said flats by respondent nos. 3 and 4.
23) It is a well-established principle of law that the High Court can interfere in the exercise of its power of superintendence when there has been a patent perversity in the order the courts subordinate to it or when there is a gross and manifest failure of justice, or the basic principles of natural justice have been flouted, and the writ jurisdiction has to be very sparingly exercised.
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24) I do not find that the cooperative courts have committed any jurisdictional error. There is no violation of the principles of natural justice. I do not find any manifest error or perversity in the reasons recorded in the impugned judgments and order. This is not a fit case for exercising powers under Article 227 of the Constitution of India.
25) For the reasons recorded above, the petition is dismissed.
[GAURI GODSE, J.]
26) At this stage, learned counsel for the petitioner seeks extension of ad-interim protection which is operating till date.
27) The ad-interim protection as recorded in order dated 6th September 2017 to continue for a period of six weeks from today.
[GAURI GODSE, J.]
IRESH Digitally signed by
IRESH MASHAL
MASHAL Date: 2024.06.10
19:54:41 +0530
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