(1.) An ex parte decree was passed in the above Suits. The decree was sought to be executed. Two Execution Applications being Execution Application Nos. 53 of 2001 and 54 of 2001 came to be taken out at the instance of the plaintiff. A warrant of attachment of movable and immovable properties of the defendant has been issued on 1st February, 2001 in the said Execution Applications. Pursuant to the warrant of attachment, certain movable properties have been seized on 10.4.2001. Together with the movables, the Sherif of Mumbai has also attached "the right, title and interest of the defendant in the goodwill of the business together with the tenancy rights of the said business premises." Thereafter there have been warrants for sale of movable as well as immovable properties separately taken out on 15th December, 2004 in both the Suits.
(2.) It is the case of the plaintiff that immovable property of the deceased was mortgaged with the Saraswat Bank. The Saraswat Bank had obtained an order of the Court Receiver before the Debts Recovery Tribunal (DRT). Hence the plaintiff was directed by the Commissioner For Taking Accounts and thereafter by this Court, in two Chamber Summons taken out by the plaintiff being Chamber Summons Nos. 748 of 2005 and 749 of 2005, to take leave of the DRT for attachment and sale of the immovable property of the deceased. This is notwithstanding the fact that the goodwill of the business together with the tenancy rights of the business premises was attached since 10.4.2001.
(3.) The plaintiff took out an Insolvency Notice. Dispute between the parties came to be settled therein. The plaintiff recovered Rs. 1.80 crores on 20th December, 2007. Consent Terms were executed by and between the parties in the Insolvency Petition.