LAWS(BOM)-2009-10-115

HILL PROPERTIES LTD Vs. UNION OF INDIA

Decided On October 16, 2009
HILL PROPERTIES LTD Appellant
V/S
UNION OF INDIA Respondents

JUDGEMENT

(1.) A learned single Judge of this Court noticing an apparent conflict with the views taken in Keshrimal J. Shah vs. Bank of India, 2004 (4) Bom. C.R. 842, the judgment in Dr. Anil Nandkishor Tibrewala vs. Jammu & Kashmir Bank Ltd., & Ors., in Writ Petition No.1684 of 2006 decided on 11th July, 2006 on the one hand, and the view taken in Sarvadaman M. Joshi & Ors. vs. The Recovery Officer & Ors., Writ Petition No. 5405 of 2005, accordingly directed the Registry to place the matter before the learned Chief Justice under Rule 28 of the Rules of the High Court of Judicature, Bombay, Original Side, for consideration by a Larger Bench. The questions referred are :

(2.) The main question which we are called upon to answer is whether in fact there is a conflict in the views taken in the judgments referred to.

(3.) We may firstly refer to the judgment in Keshrimal J. Shah (supra). Bank of Maharashtra had filed a suit in this Court which on coming into force of the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the RDB Act) was transferred to the Tribunal constituted under the RDB Act. The Original Application was decreed exparte and in consequence thereof a recovery certificate was issued by the Tribunal. The bank had earlier obtained a temporary injunction restraining the original defendant from alienating or transferring the immovable property. Inspite of the injunction, the respondent No.2 therein transferred the rights in favour of the petitioner No.2 therein which document was registered on 29th August, 2000. It was the case of the petitioners that on coming to know on 8th October, 2000 that the property was put up for auction by Recovery Officer of D.R.T. II, Mumbai,they moved an Application for intervention which was heard by the Recovery Officer and rejected. An appeal was preferred which was dismissed. The petitioners preferred Misc. Appeal before the Debt Recovery Appellate Tribunal (DRAT). That appeal was dismissed. Against that order a Writ Petition came to be filed before this Court. The learned Judge took a view that the transfer was void being in contravention of the order of injunction dated 6th March, 1998 and also that the petitioners had failed to substantiate by proof, that they are bonafide purchasers without notice. This order was challenged before the Appellate Bench of this Court. This Court framed two questions for consideration, which were: