RAJENDRA S KABUTARWALA Vs. GSFC

JUDGEMENT

(1.) By way of this petition, the petitioner has prayed for the following reliefs :- [A] Your Lordships may be pleased to admit and allow this petition; [B] Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and be pleased to direct the respondent, their agents, and servants not to attach the Bungalow No. 74 situated in Adarsh Co-operative Housing Society Limited situated at God-dod Road, Surat which belongs to the petitioner and/or not to initiate any other proceeding mentioned in the caveat application against the petitioner; [C] Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to restrain the respondent, their agents and servants from attaching and or disturbing the peaceful possession of the petitioner's Bungalow situated at 74, Adarsh Co-operative Housing Society Limited, Surat.: [D] ......

(2.) The short facts of the case are that the petitioner has purchased the residential bungalow situated at 74, Adarsh Co-operative Housing Society Limited, God-dod Road, Surat by a registered Sale deed dated 28.07.1994. The petitioner was handed over the original documents of the said bungalow by respondent no. 4 and respondent no. 2 society had also accepted the petitioner as a member of the society. Thus, the petitioner is staying in the said bungalow since 1994 as a tenant holder and member of respondent no. 2 society. The respondent no. 2 society had also issued No Objection Certificate and a letter stating that there is no lien or loan against the said bungalow and that there is no right title or interest over the said bungalow of any third party. It is the case of the petitioner that the respondent no.1 had communicated a caveat application to the petitioner wherein it is stated that the said bungalow is under the lien of the respondent no.1 as respondent no.1 has given loan to the original owner of the bungalow and, therefore, the respondent is likely to attach the said bungalow. Being aggrieved by the said action of the respondent, the petitioner has approached this Court by way of this petition.

(3.) Heard learned counsel for the respective parties and perused the documents on record. The learned counsel for the respondent states that respondent no. 1 has preferred Civil Suit No. 275/2006 before the Civil Court, Surat and the same is pending. Looking to the peculiar facts of the case and keeping in mind the evidence on record, it will be appropriate to relegate the issue before the Civil Court for adjudication. Therefore, without entering into the merits of the case, the issue involved in this petition is relegated to the Civil Court, Surat and the Civil Court, Surat will adjudicate upon the same in accordance with law. It is, however, observed that the proceedings u/s. 29 of the Act will not be initiated further against the petitioner. It is also clarified that pending Civil Suit, the principle of lis pendens will apply to the petitioner.