GHISALAL C. SHAH AND KRYSTAL STONE EXPORTS LIMITED, THROUGH ITS DIRECTOR MR. POPAT LAL KANADIA AND ORS. ETC. ETC. Vs. OFFICIAL ASSIGNEE, HIGH COURT AND G.C. SHAH AND ORS. ETC. ETC.

JUDGEMENT

(1.) ADMIT . The Respondents waive service. By consent of the parties, taken up for hearing, forthwith.

(2.) THE Appellants have challenged in this appeal order dated 1/12/2009 passed by learned Single Judge of this Court. By the impugned order, learned Single Judge has disposed of Notice of Motion No. 67 of 2009, Notice of Motion No. 68 of 2009 and Report No. 8 of 2009 submitted by the Official Assignee. The present appeal revolves around Flat No. 305, Blase View 'A' Co -operative Housing Society Limited, Matherpada Road, Amboli, Andheri (West), Mumbai - 400 058, (for short, "the said flat").

(3.) NOTICE of Motion No. 68 of 2009 was taken out by the Central Bank having its Branch Office at Jaipur, Rajasthan praying that the Official Assignee be directed to hand over the said flat to the Central Bank in order to sell the same under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the SARFAESI Act"). It is also prayed that the Official Assignee may be restrained from selling, alienating, dealing with and creating any third party right in the said flat. In the affidavit in support of this notice of motion filed by one Narendra Khandelwal, Senior Manager, Central Bank, it is stated that Mrs. Sangeeta Agarwal and her husband Bansi Dhar Agarwal are declared as Insolvents pursuant to the order passed by this Court and pursuant to the said order, the Official Assignee has taken over possession of the said flat. It is further stated that the Central Bank has given credit facilities to the Appellants and in order to secure the said credit facilities, the said flat has been mortgaged by Mrs. Sangeeta Agarwal in favour of Central Bank. It is further stated that the parties have not paid the outstanding dues and, their accounts have become Non Performing Assets (for short, "the NPA"). It is further stated that the Central Bank had filed original application in the Debts Recovery Tribunal (for short, "the DRT") against Insolvents at Jaipur being Original Application No. 234 of 2002 to recover a sum of Rs. 3,91,44,184.48 with further interest. The said original application was decreed on 31/3/2006. The Central Bank filed an execution petition and a demand notice came to be issued to the judgment Debtors. Pursuant to the order passed by the Recovery Officer, the Central Bank is stated to have taken possession of the said flat from the Official Assignee. The Insolvents preferred an appeal before the Debt Recovery Appellate Tribunal (for short, "the DRAT"), Delhi, against the ex -parte decree and the DRAT set aside the ex -parte decree and directed the DRT to rehear the matter which is pending before the DRT, Jaipur. Pursuant to the order passed by the Recovery Officer dated 24/8/2009, the Central Bank returned the possession of the said flat to the Official Assignee. It is further stated that pending the DRT proceedings, the Central Bank initiated action under the SARFAESI Act. It issued notice under Section 13(2) of the SARFAESI Act, which was followed by notice under Section 13(4) thereof. Since, the said flat was in possession of the Official Assignee, the Central Bank informed the Official Assignee about the action taken under the SARFAESI Act and requested the Official Assignee to hand over possession of the said flat to the Central Bank in order to sell the same. However, the Official Assignee did not respond to the Central Bank's letter dated 19/9/2009 to the above effect. According to the Central Bank, as on 2/10/2009, when the affidavit was filed the outstanding dues of the Central Bank against the Insolvents are more than Rs. 4 crores. Therefore, Notice of Motion No. 68 of 2009 was taken out by the Central Bank praying that the Official Assignee be directed to hand over possession of the said flat to them.