AARIFABEN YUNUSBHAI PATEL Vs. MUKUL THAKOREBHAI AMIN

JUDGEMENT

(1.) M/s. Abhilasha Construction, Respondent No.3 herein (hereinafter referred to as R3), obtained a loan from Shree Mahalaxmi Mercantile Coop Bank Ltd., Respondent No. 2 herein (hereinafter referred to as R2), but failed to repay the loan and R

(2.) filed summary proceedings for recovery of the amount due to it from R3 and Mukul Thakorebhai Amin, Respondent No.1 herein (hereinafter referred to as R1), who was a partner in the said Firm. During the pendency of the suit, R3 applied for release of 12 flats and 2 penthouses which were permitted to be released on the said respondents depositing Rs. 65 lakhs. However, Respondent Nos. 1 & 3 failed to deposit the said amount. On 12.08.2004, the adjudicating authority granted leave to the defendants to contest the suit on the condition that they would deposit 33% of the amount claimed by R2. This amount was also not deposited. Thereafter, a decree for a sum of Rs. 1,89,94,105.50, was passed on 14.09.2004 in favour of R2 and against the defendants which included Respondent Nos. 1 & 3. We have given the facts of Civil Appeal No.16431644 of 2020. As far as Civil Appeal No.1647 of 2020 is concerned, that relates to advertisement for sale of a bungalow which was issued on 13.01.2008, and sale was made on 03.03.2008. 2. The said decree dated 14.09.2004 was challenged in appeal before the Gujarat State Cooperative Tribunal. It appears no stay was granted. In the meantime, R2 filed an application for execution of the decree before the Civil Judge, Vadodara on 01.11.2007. On the very next day, i.e. 02.11.2007, an application was filed for appointment of receiver for execution of decree. The court allowed the said application on 02.11.2007 itself and the court receiver was permitted to sell the property and report to the Court within 15 days. R2 also filed an application for attachment of property on which orders were also passed on 02.11.2007. Advertisement for auction of the said property was published in the newspaper on 21.11.2007. The upset price was not mentioned in the said advertisement. Pursuant to the public notice for sale, the auction of the attached property was conducted on 26.11.2007, wherein the appellants offered Rs.78,25,251/. There were only two bidders and the appellants were the highest bidders and they deposited 25% of the sale consideration on the spot. Thereafter, on 10.12.2007 R 2 applied for permission to confirm the sale and vide order dated 10.12.2007 the executing court accepted the report of court receiver and permitted him to execute the same. Thereafter, the receiver filed some application for clarification and on 18.12.2007 counsel appearing on behalf of R3 sought time to file objections.

(3.) Instead of filing objections, R1 filed a writ petition before the High Court of Gujarat challenging the sale of 12 flats and 2 penthouses pursuant to the court auction. This petition was filed on 26.12.2007. It also appears that R1 kept appearing before the executing court and requested the executing court to stay further proceedings. Initially, the proceedings were stayed but when R1 did not file any objections under Order XXI Rule 90 of the Code of Civil Procedure, 1908 (CPC for short), sale certificate in respect of 12 flats and 2 penthouses was issued in favour of the appellants by the executing court on 29.02.2008.