ADITYA KUMAR KEDIA Vs. VINOD SHANTILAL BHATIA

JUDGEMENT

(1.) This Offcial Assignee's Report has been fled seeking a direction from this Court to allow the Offcial Assignee to take physical possession of fat bearing No.23, Belle View Society, situated at 85, Bhulabhai Desai Road, Mumbai - 400 026 (for short "the said fat No. 23") and for sale of the said fat No.23. To counter this Report, the above Notice of Motion is fled by the applicant Aditya Kumar Kedia seeking for a relief to release the said fat No.23 from symbolic possession of the Offcial Assignee and to direct the Offcial Assignee not to disturb or interfere with the possession and occupation of the applicant. In this Notice of Motion there is ad- interim order passed on 18th January, 2018 wherein the applicant or any one claiming through the applicant was directed not to create any third party rights or encumber or give possession or enter into any leave and licence agreement or any such agreement with any party until the hearing and fnal disposal of the Notice of Motion. In view of the statement made on behalf of the applicant, the Offcial Assignee stated that he will not take physical possession of the said fat No.23 until further orders.

(2.) The rights that the applicant claims on the said fat No.23 is by virtue of a gift deed dated 2 nd December, 1986 executed by the Insolvent in favour of the applicant. This gift deed was lodged for registration with the Sub-Registrar of Assurances on 3 rd December, 1986. It was offcially registered on 26 th April, 1996 after the gift deed was adjudicated for the appropriate stamp duty. After the execution of the gift deed by the Insolvent, as per the prevailing law, the gift tax of Rs.27,000/- was also paid to the Income-tax Authorities by the Insolvent. Thereafter, since the dues of the income-tax Authorities were not paid by the Insolvent, the Income Tax Authorities initiated proceedings for attachment of the said fat under Section 281 of the Income-tax Act, 1961, read with rule 11 of Schedule-II of the Income-tax Rules. Finally this attachment was raised by the Order dated 27th December, 2017 as the dues of the Income-tax Department were paid by the applicant itself for and on behalf of the Insolvent.

(3.) The Insolvent has also fled a Suit being Suit No.1138 of 2017 in the Bombay City Civil Court at Bombay in June, 2017 inter alia seeking a declaration that the gift deed dated 2 nd December, 1986 is void and has no legal effect and cannot be acted upon by any authority under the law. This suit is still pending for adjudication before the City Civil Court. I fnd that until this Suit is decided the directions sought for by the Offcial Assignee or the reliefs claimed by the applicant cannot be granted. Everything will depend upon the adjudication given by the City Civil Court in the Suit fled by the Insolvent. It is stated before me that in the said Suit the applicant herein and in whose favour the gift deed is executed, has not been made a party defendant to the said Suit. The learned advocate appearing for the Insolvent (the Plaintiff in Suit No. 1138/2017) on instructions of the Insolvent, who is present in Court, has stated that the Insolvent shall not oppose the application made by the applicant to be joined as a party defendant to the said Suit. The said statement is accepted as an undertaking given to this Court. The Offcial Assignee has also brought to my attention that from the Offcial Assignee's records it appears that no permission has been granted to the Insolvent to fle the said Suit. Considering that the fling of this Suit has been brought to the attention of the Offcial Assignee only now, the Offcial Assignee is at liberty to fle appropriate proceedings to safeguard the said fat which he claims belongs to the Insolvent. Leave for that purpose is accordingly granted in terms of Section 68 of the Presidency - Towns Insolvency Act , 1909. Needless to clarify that the earlier order passed by this Court recording the statement of the applicant as well as the Offcial Assignee, shall continue until further orders.