Vista Itcl (India) Limited ... vs Sanjay Dattatrey Kakade And Ors
2021 Latest Caselaw 16344 Bom

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     ORDINARY ORIGINAL CIVIL JURISDICTION
                            [ COMMERCIAL DIVISION ]

                      COURT RECEIVER'S REPORT NO.363 OF 2021
                                        IN
  COMMERCIAL EXECUTION APPLICATION (LODGING) NO.1599 OF 2018

Vistra ITCL (India) Ltd.
(Formerly known as IL & FS Trust Co. Ltd.) and Anr.        .. Applicants
                     Vs.
Sanjay Dattatrey Kakade and Ors.                           .. Respondents


Mr. Sharan Jagtiani, with Mr. Jatin Pore, Ms. Shraddha Achliya and
Ms. Ankita Agrawal, i/by DSK Legal, for the Applicants.
Mr. Girish Godbole, i/by Mr. Rahul Soman, for Respondent Nos.1 and 2.
Mr. Girish Godbole, with Mr. Yatin R. Shah, Mr. Shivam Bhagwati and
Mr. Shahzad Khajotia, for Respondent No.3.
Mr. Shridhar Dhekale, OSD, Court Receiver is present.


                                         CORAM : A. K. MENON, J.

                                         DATE    : 25TH NOVEMBER, 2021.
P.C. :

1. Prayer clause (a) of the Court Receiver's Report indicates non-

cooperation by the respondents despite Receiver being appointed of numerous

properties, which are described in Annexure-A to a letter dated 31 st October

2019 from the applicants' Advocates ("Annexure-A"). Initially, the Receiver

was not provided with any documents in relation to various properties listed

in Annexure-A. Subsequently, out of the 22 items listed in Annexure-A,

describing various plots of lands, agricultural, non-agricultural, commercial

buildings, residential properties and lands, only one original document has

4-CRR-363-2021.doc Dixit been deposited with the Receiver. That pertains to item 2 of the Annexure-A.

Item 2 describes the property as 12 Hectares at Village Range, Gat No.262,

Mouje Range, Khed Shivapur, Tal. Haveli, Dist. Pune.

2. However, the Receiver points out that the Sale Deed dated 10 th March

2011 deals with an area of only 5 H 19 R. Thus, there is clearly a shortfall of

about 7 H, which is unexplained. Today, Mr. Godbole has no instructions

whatsoever as to the balance area of land; whether there is a separate

document by way of a Sale Deed or otherwise. He seeks time to take

instructions.

3. In view of the fact that the original Sale Deed dated 10 th March 2011 is

now deposited with the Receiver, the Receiver, in my view, should take

possession of the said land, as disclosed in the Sale Deed. A further disclosure

in Exhibit-L to the further affidavit dated 25 th October 2021 indicates that the

property at item 2 is in possession of a tenant - Arjun Devkar.

4. Property listed at item 11 in Annexure-A is said to be admeasuring

7,965 sq.ft., bearing Plot No.24, situate at Karvenagar, Pune (Arihant Jewellers

Building, Beside Maruti Bhairavnath Mandie, Karvenagar Flyover,

Karvenagar, Pune). A photocopy of the Development Agreement in favour of

the judgment-debtor no.1 handed over to the Receiver's office reveals that the

judgment-debtor no.1, as a developer, appears to have put up construction on

the plot of land forming subject matter of the Development Agreement.

5. On behalf of the respondents, Mr. Godbole has no information whether

4-CRR-363-2021.doc Dixit the Development Agreement is accompanied by a Power of Attorney in favour

of the 1st respondent-judgment debtor. However, Mr. Jagtiani points out that

since the description in Exhibit-L sets out that the building is constructed and

handed over to the prospective purchasers and landlords, in the event there is

any unsold unit or flat, that should not be sold or parted with in view of the

appointment of the Court Receiver. That is a reasonable suggestion.

6. The other properties in respect of which no documents have been

provided are items 14, 15 and 21 in Annexure-A. Mr. Godbole states that the

property at item 14 has been mortgaged to one Samata Nagari Sahakari Bank

Ltd. This he states on the basis of Exhibit-L to the further affidavit-in-reply

dated 25th October 2021. The description in Exhibit-L as far as possession of

property at item 14 is concerned reads as follows :-

"Building constructed and handed over to prospective

purchasers and original owners."

7. The owner's name is not disclosed. However, since it is part of

Annexure-A, it is the 1st respondent-judgment debtor who is represented to

be the owner. According to the learned counsel for the respondents, it is

mortgaged to the bank and he has no instructions on whether the property is

occupied. He also does not have documents to show the extent of borrowing

or whether any mortgage was created at all save and except to state that some

security is created in favour of the Samata Nagari Sahakari Bank Ltd.

4-CRR-363-2021.doc Dixit

8. The property listed at item 15 in Annexure-A is yet another residential

flat, which is in the possession of judgment-debtor no.2. As per Exhibit-L,

there is no litigation and no encumbrance.

9. As far as property at item 21 in Annexure-A is concerned, which is

described as Jadhav/Vani Plot at Karvenagar, Pune, Mr. Godbole states that the

respondents do not possess a copy of this MOU. In Exhibit-L, it is disclosed

that there is no litigation in relation to the said plot and that possession is said

to be with one Jadhav. There is no explanation forthcoming as to how

information pertaining to this plot has become available to the deponent as on

date of affirming the affidavit. In the third column of Exhibit-L, it is stated

that the MOU is between the deponent-Sanjay Kakade and the said Jadhav;

yet, possession is said to be with Jadhav.

10. In view of the above, I pass the following order :-

(i) Court Receiver shall take possession of the plot of land

at item 2 in Annexure-A, admeasuring 5.19 Hectares,

bearing Gat No.262, Mouje Range, Khed Shivapur,

situate at Village - Range, Tal. Haveli, Dist. Pune. If the

said Arjun Devkar is found to be the tenant, he shall not

be dispossessed. The Receiver shall make an interim

report forthwith after taking possession. Receiver shall

mention the fact of taking possession by putting up a

proper board at site. The Pune District Collector shall

4-CRR-363-2021.doc Dixit assist the Receiver to put up an all weather board on

metal poles.

(ii) The Receiver shall also make enquiries with the

Collector's office to ascertain the extent of the land that

is in possession, which is adjoining 5 H and 19 R.

(iii) The Collector's office shall render all possible assistance

and provide copies of any documents including copy of

the Extract of the Record of Rights in respect of plot of

land bearing Gat No.262 described in Annexure-A and

Exhibit-L.

(iv) The respondents are restrained from in any manner

parting with possession, alienating, encumbering,

creating third party rights or surrendering possession of

any of the units/flats that are yet to be sold or

continuing to be in their possession as on date in the

property listed at item 11 in Annexure-A is concerned,

which is said to be admeasuring 7,965 sq.ft., bearing

Plot No.24, situate at Karvenagar, Pune (Arihant

Jewellers Building, Beside Maruti Bhairavnath Mandie,

Karvenagar Flyover, Karvenagar, Pune).

(v) The Receiver is directed to take physical possession of

4-CRR-363-2021.doc Dixit the said property being Residential Flat No.55/11A, Plot

No.12, Kakade Paradise, Ashok Path Lane, Law College

Road, Pune described at item 14 in Annexure-A and

make a report in that respect.

(vi) The Receiver is directed to take physical possession of

the said property being Residential Flat No.101,

Treasure Park Building No.E, S.No.61, Pune-Satara Road,

Behind Kotak Mahindra Bank, Shiv Darshan Road,

Parvati, Pune - 411 009 at item 15 in Annexure-A.

(vii) The entire process of taking over possession of the

premises, as stated above, shall be videographed.

(viii) The applicant shall make necessary arrangements for

the said purpose and deposit with the Court Receiver

such additional amount that may be required to enable

possession to be taken of these properties.

(ix) If tenant or any person is found to be in possession of

the properties, possession of which is directed to be

taken over by the Receiver, they shall not be

dispossessed.

(x) The applicant is directed to visit the property being

Jadhav/Vani Plot, bearing CTS No.4/17, situate at Opp.

4-CRR-363-2021.doc Dixit Mouktik Paranjape Scheme, Prakash Lagu Motiwala

Path, Behind Palande Courier, Erandavane, Pune - 411

004, listed at item 21 in Annexure-A, and file an

additional affidavit disclosing the status of the property.

Depending on the contents of the additional affidavit,

further directions will be issued to the Receiver.

(xi) Likewise, in respect of all other items comprised in

Annexure-A, the applicant shall depute a suitable

representative to verify location and accuracy of the

properties described in Annexure-A to the letter dated

31st October 2019 and Exhibit-L to the further

affidavit-in-reply of 25th October 2021. Let this

exercise be completed within two weeks from today.

The visits shall be videographed.

(xii) Accordingly, affidavit disclosing results of the exercise

of verification shall be filed on or before 13 th December

2021.

(xiii) As far as prayer clause (b) of the Receiver's Report is

concerned, the office of the Collector shall provide all

information relating to the location of the properties in

the Record of Rights in respect of each of the plots

4-CRR-363-2021.doc Dixit referred to in Annexure-A, while verifying whether the

description of these plots is accurate.

(ixv) Copies of the title-deeds, if any, available with the

relevant Sub-Registrar shall also be provided to the

Court Receiver. Ms. Chavan, learned AGP shall ensure

that this is complied within one week of the request of

the Receiver.

(xv) In the event of any resistance to handover possession of

the properties, as directed above, the Receiver shall seek

police assistance from the concerned police station,

which is directed to provide all possible assistance to the

Receiver's representatives right from the Receiver's

arrival in the relevant district till possession is handed

over and till the Receiver leaves.

(xvi) The Receiver shall give one week's notice to the

concerned police station to enable them to make

necessary arrangements.

(xvii) List the Receiver's Report on 15th December 2021.

(A.K. MENON, J.)

Digitally signed SNEHA 4-CRR-363-2021.doc by SNEHA ABHAY DIXIT ABHAY Date:

Dixit 2021.11.26 DIXIT 14:20:06 +0530