Geeta Umesh Gandhi vs Prashama Shukla And Anr
2023 Latest Caselaw 3474 Bom

                                                                        3-IAL-9145-23.doc

Sharayu Khot.
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      ORDINARY ORIGINAL CIVIL JURISDICTION

                     INTERIM APPLICATION (L) NO. 9145 OF 2023
                                                IN
                      COURT RECEIVER'S REPORT NO. 71 OF 2023
                                                IN
                                    SUIT (L) NO. 1242 OF 2018


      Geeta Umesh Gandhi                                     ...Applicant/
                                                             Intending Purchaser

                In the matter between

      Prashama Shukla & Anr.                                 ...Plaintiffs

                Versus

      Heena Builders & Developers & Ors.                     ...Respondents

                                             ----------
      Mr. Shanay Shah, Ms. Mansi Shah i/by Pravin Mehta and Mithi and
      Co. for the Applicant.
      Ms. Sapana Rachure with Ms. Neha Achliya for the Plaintiff in
      SL/1242/18.
      Mr. Jamshed Master i/by Kuber Wagle for the Defendant Nos. 1
      and 2.
      Ms. Ankita Pawar a/w Mr. Harshavardhan Khambete for the
      Applicants in IAL/8938/23 & IAL/8997/23.
      Mr. Nishant Sasidharan a/w Ms. Gauri G. Mestha i/by LJ Laws for the
      Judgment Creditor/Plaintiff in S/817/15.
      Mrs. Rekha Rane, 2nd Asstt. to C.R. present.
                                             ----------

                                             CORAM : R.I. CHAGLA J
                                              DATE : 10 April 2023

                                               1/7




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                                                       3-IAL-9145-23.doc


ORDER :

1. By this Interim Application, the Applicant/Intending

purchaser has sought directions to the Court Receiver to clarify

whether the title of the subject flats are free from all encumbrances

and reasonable doubts and in the event, there is a charge on the

subject flats, the Court Receiver be directed to obtain No Objection

Certificate from M/s. India Bulls Housing Finance Limited in respect

of the sale of the subject flats.

2. Further relief is sought for extension of time for making

payment of balance purchase consideration in terms of order dated

6th March 2023.

3. Mr. Shanay Shah, learned Counsel appearing for the

Applicant/Intending purchaser has referred to the prior order dated

21st April 2022 wherein this Court had recorded the submission of

Mihir Shah, partner of Defendant No. 1, that true certified copy of

the agreements have already been handed over to the Court Receiver

and submission that the sale of the subject flat Nos. 601 and 602 can

be proceeded with on the basis of the certified copies of the

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registered agreements dated 10th June 2021. This Court had also

recorded his submission that the original Title Deeds are misplaced

and no encumbrances have been created on flat Nos. 601 and/or 602

and the Receiver is free to sell the same.

4. Accordingly, the Court Receiver had taken steps to sell

the subject flats. By order dated 6th March 2023, this Court had

accepted the Applicant/Intending purchaser's offer to purchase the

subject flats for the sum of Rs. 11.75 Crores.

5. The Court Receiver was accordingly, directed by the said

order dated 6th March 2023 to enter into an Agreement for Sale with

the Applicant/Intending purchaser in respect of Flat Nos. 601/6A and

602/6B, subject to the Applicant/Intending purchaser depositing

balance sale consideration within four weeks from the date of the

said order. It was made clear that in the event, the balance sale

consideration was not deposited, the offer of the Applicant/Intending

purchaser shall not be accepted without further reference to the

Court and the Court Receiver shall forfeit the EMD of Rs.1 Crore.

6. Mr. Shanay Shah has referred to search carried out by

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Mr. Harish P. Banger, Search Clerk of the documents relating to the

subject flats in the Sub-Registrar's office 1 to 7. The Search Reports

are annexed at Exh.J and K to the Interim Application. The search

was conducted on 21st March 2023. In the Search Report of Mr.

Harish P. Banger, it is mentioned that the subject flats have

encumbrances in favour of M/s. India Bulls Housing Finance Limited

as on 31st March 2012.

7. Mr. Shanay Shah has referred to the communication by

which the Advocate for the Applicant on 25th March 2023 had called

upon the Court Receiver to enquire as to whether the subject flats are

free from encumbrances. Reference was made to the findings in the

Search Report. The Court Receiver by response email communication

dated 28th March 2023 sought the complete addresses of M/s. India

Bulls Housing Finance Limited so that necessary correspondence

could be made with them. By further communication dated 29th

March 2023, this has been responded to by the Advocate for the

Respondent providing the necessary details.

8. Mr. Shanay Shah has submitted that considering that the

documents with Sub-Registrar's office upon search conducted shows

3-IAL-9145-23.doc

encumbrances in favour of M/s. India Bulls Housing Finance Limited,

the purchase consideration which was directed to be paid within four

weeks from order dated 6th March 2023 has not been paid awaiting

clarification from the Court Receiver on whether there are still

encumbrances on the subject flats.

9. Mr. Jamshed Master, the learned Counsel for the

Defendant Nos. 1 and 2 has brought it to the notice of this Court that

the Advocates for Defendant Nos. 1 and 2 by email dated 3rd April

2023 sent to the Court Receiver attached a copy of No Due Certificate

dated 18th January 2015 issued by M/s. India Bulls Housing Finance

Limited in respect of the subject flats. He has submitted that the

search conducted of the documents in the Sub-Registrar office 1 to 7

showed encumbrances as of 31st March 2012 i.e. prior to No Due

Certificate issued by M/s. India Bulls Housing Finance Limited.

10. Considering that the Applicant/Intending

purchaser had learnt of the encumbrances from the documents in the

Sub-Registrar office 1 to 7 upon search taken on 21st March 2023

and thereafter follow up was made with the Court Receiver as

aforementioned, there has been a delay in making payment of the

3-IAL-9145-23.doc

purchase consideration by the Applicant/Intending purchaser which

is justified.

11. Accordingly, the Court Receiver shall issue notice

to M/s. India Bulls Housing Finance Limited in order to get

clarification as to whether the No Due Certificate dated 28th January

2015 still holds good or has been subsequently, withdrawn.

12. The Representative of M/s. India Bulls Housing

Finance Limited shall remain present on the next date in order to

clarify the position as to whether they have any encumbrance on the

subject flats.

13. The Court Receiver as well as the Advocates for

the Applicant/Intending purchaser shall communicate this order to

M/s. India Bulls Housing Finance Limited.

14. The above matter shall be listed on 17th April

2023 at 2.30 p.m. along with the Interim Application (L) No. 8938 of

2023 and Interim Application (L) No. 8997 of 2023.

3-IAL-9145-23.doc

15. Till then, time for compliance with the order dated

6th March 2023 for making payment of balance purchase

consideration is extended till further orders.

[R.I. CHAGLA J.]