BIHAR DISTILLERY LTD. Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) THE appellant -Bihar Distillery Limited was the unsuccessful writ petitioner. It had challenged before the writ Court the order dated 21.06.2006, passed in Recovery Proceeding No. 44 of 2001, by the Recovery Officer of the Debt Recovery Tribunal, Patna. By the said order the Recovery Officer rejecting the objections as filed by the writ petitioner -appellant, directed for auction sale of its properties holding that properties purchased by the writ petitioner -appellant from Industrial Corporation Private Limited were properties which were mortgaged and charged from before. The learned Single Judge by his judgment and order dated 04.03.2010, passed in C.W.J.C. No. 7184 of 2009, held that the properties were sold by I.C.P.L. to the writ petitioner -appellant after institution of the Money Suit for recovery of money based on substituting charge created on the properties. The learned Single Judge held that in such a situation sale of properties after the suit has been instituted would defeat the right of the creditor i.e. the plaintiff in the Money Suit, which is the Central Bank of India. The learned Single Judge further held that the order of the Recovery Officer was passed on 21.06.2006, rejecting the objections of the writ petitioner -appellants, but the writ petitioner -appellant did not challenge the same either in the statutory appeal that was available to it before the Presiding Officer of the Debt Recovery Tribunal. The order having been passed by the Recovery Officer not challenged in any other proceedings and it is only after three years when further orders were passed by the Recovery Officer including order of attachment that in 2009 the writ petition was filed once limitation for challenge in appeal had expired. On the aforesaid grounds the writ Court refused to interfere and come to the rescue of the writ petitioner in respect of sale of properties ostensibly purchased by petitioner for consideration.

(2.) WE have heard parties at length and we are not inclined to interfere, though for slight different reasons. In fairness to Mr. Ambuj Nayan Chaubey, learned counsel appearing in support of the appellant, we must notice a plea raised by him. He submits that it is on 28.11.1987 that an agreement for sale of certain lands was entered into between I.C.P.L. and the Bihar Distillery Limited (B.D.L.) the writ petitioner -appellant. It is on 06.02.1988 that the Bank recalled the dues in toto and it is on 29.02.1988 Money Suit No. 09 of 1988 was instituted for recovery of about Rs. 23,00,000/ -. The sale deeds as between I.C.P.L. and B.D.L. were executed, two in number, on 11.07.1988 and 14.07.1988 and were duly registered. On these facts, he submits that there being an agreement for sale long proceeding the Suit, the sale deed executed after the suit was instituted, sale would not be hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act.

(3.) ON the strength of the aforesaid decision, he submits that there being an obligation to sell by virtue of the agreement to sell aforesaid prior to the suit, subsequent execution of sale deed, cannot be avoided much less on the principles of lis pendens, We are unable to agree.