9911796707
TMI Blog2022 (1) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... eliefs are claimed in relation to mutation entries in the alternative. However, at the hearing of this application today, Mr. Gaonkar has restricted the relief sought to prayer clauses (a) and (b). The respondents in the application are (i) the Reserve Bank of India, the original petitioners at whose instance Bank of Karad Ltd. was ordered to be wound-up, (ii) Liquidator of Bank of Karad, (iii) legal heirs of one Giriraj Chudasama and the remaining respondents 3 to 5 are purchasers of the property, which forms subject matter of the Sale Certificate. The application is opposed by all the respondents-the main contestants are the purchasers of the property. FACTS : 2. The applicant, an individual, is said to be a resident of Pune and claims to have acquired the plot admeasuring 90 R bearing survey no.95/8, Old No.95/1/2 in village Susgaon, Taluka Mulshi, District Pune. The plot was acquired from the original respondent no.2 (late Chudasama) (sine deceased) and the applicant claims to be in possession as on date. He claims under a registered Sale Deed dated 9th October 1989. Late Chudasama is alleged to have perpetrated a fraud in collusion with some other respondents to secure the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 164 of 2010. The orders passed by the court have been relied upon in the subject report. The court was thus persuaded to accept the liquidator's recommendations and the liquidator executed a Sale Certificate on 11th April 2014, copy of which appears at Exhibit A-2. 4. It is the case of the applicant that the plot could not have been sold by the Liquidator since it was purchased by the applicant prior to the compromise having been arrived at. Reliance is placed on the Sale Deed dated 9th October 1989 executed between the applicant, respondent no.2 and one Ankush Dandekar, a contesting party which in no uncertain terms, constitutes conveyance of the agricultural plots. The applicant claims to have purchased the property being an agriculturist himself. It is therefore contended that the Liquidator could not have acquired any title, late Chudasama having been divested of his right in the property in 1989. 5. Mr. Gaonkar, learned counsel appearing on behalf of the applicant submitted that late Chudasama appears to have played a fraud on the court apparently in collusion with respondents 3 to 5 and had led the Liquidator to believe that the plot was owned by him. Mr. Gaonkar submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue a sale certificate whereas the fact of the matter is that it was late Chudasama who had claimed to be the owner of the property. 9. Mr. Khandeparkar also submitted that the Liquidator does not wish to enter upon the controversy relating to the title of the property and that the rival claims of the applicant and the respondent nos.3 to 5 was a subject matter between them. The Liquidator has meanwhile received the sale proceeds and which had been appropriated. It was not possible now to achieve status quo ante in the facts and circumstances of this case. 10. On behalf of respondent no.2, Mr. Narvekar submitted that the original respondent had expired and he now represents the legal heirs of late Chudasama. His submissions were limited to the point of maintainability of the application since according to him his clients have no personal knowledge of the various dealings of the respondent no.2 in relation to the plot. He submitted that for want of knowledge and alleged acts of respondent no.2, his submissions are restricted to whatsoever was stated on oath by late Chudasama in his affidavit in these proceedings. However, in principle, he submitted that the present application is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to Mr. Salunke, the applicant had not even sought condonation of delay and unless delay was condoned, the above application should not be entertained. He submitted that this court may dismiss the application. Moreover, any application for recall of an order ought to have been filed from 30 days of the order and the application being filed only on 19th May, 2017 is not only time barred considering the relief of recall but even otherwise it is filed more than three years after the impugned order and hence, is not maintainable. 13. Mr. Salunke further submitted that the sale in favour of his clients has occasioned on 11th April, 2014 in fact the applicant had knowledge of this purchase at least as on 3rd May, 2014 because he made an application to the Talathi at Mulshi District, Pune, on 3rd May, 2015 seeking inclusion of his name in the land records. This submission is a proof of the fact that as purchaser he was claiming to be entitled to the plot. Apart from the application being beyond time, generally, speaking date of knowledge as of May 2014 cannot be disputed and in these circumstances, he contended that the only remedy the applicant has filed a suit under Section 31 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mulshi, District Pune, and pursuant thereto, notices were given to the owners and occupiers of adjoining properties but the department indicate that the bank was in possession of the plot which respondent nos.3 to 5 had acquired and applicant was only feigning ignorance. Mr. Salunke submitted that the bank was well and sufficiently entitled to enter into the agreement in favour of his clients and the present application is but a belated attempt to deprive the respondent nos.3 to 5 who are bonafide purchasers for value. Mr. Salunke therefore submitted that there is no occasion to entertain the present application for all the aforesaid reasons. 17. Mr. Gaonkar, in rejoinder submitted that the case of respondentnos.3 to 5 must be rejected since they have perpetrated a fraud ably assisted by late Chudasama. My attention was invited to Exhibit U to the application which is a "Taba Sathekhat" dated 4th July, 2013. This document he submitted was evidence of agreement to pay a sum of Rs. 3 lakhs over and above the sum of Rs. 10 lakhs paid to the Liquidator. This agreement clearly evidences the fact that respondent nos.3 to 5 had taken search of all prior documents and the respondent nos.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to purchase the plot. Thereafter negotiations ensued and late Chudasama sold the plot to the applicant under Sale Deed dated 9th October, 1989 which was registered with the Joint Registrar in the year 1990. The Sale Deed empowered the applicant to delete the name of the late Chudasama and to effect changes in the revenue records. Late Chudasama declared that he did not have any right, title or interest in the plot. After having sold the plot, he did not have any information and had not made any enquiries and hence did not cause to enter the name of the applicant. He admits that he was a guarantor in respect of the loan taken by Vijay Mahajani but he contends that he has never mortgaged the plot or any plot thereof to the bank or execute any document in relation to the property in favour of the bank. 20. According to late Chudasama he "came to know that the present applicant had given his consent in writing for handing over possession of the property to the Bank of Karad." The deponent also states that applicant did not raise objections to the attachment of the property by the bank. He contends that the applicant had knowledge of the developments. Meanwhile, the bank's name had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asama as a guarantor would be construed as a creditor but that is not the case with which the Liquidator had approached the Company Court when filing the Report. 22. If the transfer had been made without consideration, it would beonce again susceptible to doubt. In the case at hand, it is not the case of any of the parties that the transfer by late Chudasama to the applicant was invalid. Thus, there is a sale absolute in favour of the applicant. The registration of the sale deed is also admitted. Thus, the document is also in compliance of the requirement of the Registration Act. What one really has to consider is whether given the applicants' status as owner of the property, late Chudasama could have, under any circumstances, offered the same for sale to respondent nos.3 to 5 and in my view the answer must be in the negative. There is of course the contention of late Chudasama contained in his affidavit in reply that the applicant had consented to the sale of the plot in order to enable the respondent no.2 to be discharged from his liability as guarantor. The so-called consent appears to be a figment of the deponent's imagination. Nothing on record indicates any intention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsaction has demonstrated the dishonesty of late Chudasama along with the Liquidator's casual approach in having proceeded on the basis that he had acquired rights in the property. 25. Mere inclusion of the liquidator's name in the 7/12 extract under the column "Other rights" would not vest the property in nor to deal with the property. Attachment of the property after the property is transferred to the applicant was itself bad. Sale by the Liquidator was null and void. In fact, the recovery suit by the bank was filed only on 23rd January, 1990 and the attachment was clearly questionable. What is surprising is that the Liquidator has executed a sale certificate without holding the character of the owner of the property. As a consequence of attachment, late Chudasama was incapable of effecting the sale since he lacked any right in the property. In that view of the matter, there is no doubt that having perpetrated a fraud on the Liquidator and the court, late Chudasama has also misled the respondent nos.3 to 5 into behaving that they would acquire proper right, title and interest to the plot. The conduct of respondent nos.3 to 5 in ably assisting the respondent no.2 to suppress the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have been entered is the fact of attachment because the bank did not "hold" the property in the sense that would confer upon its ownership rights. 28. The applicant has stated that he had applied to the Civil Court on9th June, 1992 for raising attachment and for permission to cultivate the plot. That application remained pending, He believed that his Advocate would be pursuing the matter and in September 2011 he once again filed an application before the Talathi to record his name. Later, pursuant to applications under the RTI Act, he learnt from the records collected that the records had been transferred to this court pursuant to the order of winding up. This led to him to learn of further developments. He then sought certified copies of the entire suit proceedings as stated in paragraph 4(p), 4(q) and 4(r). 29. No doubt, there is no separate prayer for condonation of delay. However, I am satisfied that there is no wanton delay in approaching this court. The objections on the basis of the application being time barred, raised by Mr. Narvekar and Mr. Salunke cannot deprive the applicant of his rights. The legal position that fraud vitiates all is no longer res integra. In S.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case, it is apposite to consider the adjustment of equities considering the late Chudasama for perpetrating a fraud and even assuming there is unexplained delay, the delay deserves to be condoned. On merits the applicant has a good case. It is supported by an affidavit of late Chudasama and the questionable conduct of the purchasers and the casual approach of the Liquidator. The applicant sought to raise an attachment levied. He followed the proceedings to the office of the Liquidator and this court and has in my view taken the right steps. 32. I am not persuaded to hold that a suit must necessarily be filed in view of Section 31 of the Specific Relief Act in the facts and circumstances of the case. The transaction as between late Chudasama and respondent nos.3 to 5 has its foundation in a classic case fraud viz. "suppressio veri" and "suggestio falsi". Late Chudasama suppressed the truth of having sold the plot to the applicant for the respondent nos.3 to 5 and probably the liquidator. He falsely suggested that he was competent to sell the plot and he acted in this false statement by consenting to the sale. The fraud not only misled the Liquidator but also the court. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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