Bombay High Court
Vista Itcl (India) Limited ... vs Sanjay Dattatrey Kakade And Ors on 9 March, 2023
Bench: R. I. Chagla
3-CRR 363.2021 in COMEX(L) 1599.2018.doc
K.S. Jadhav
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COURT RECEIVER'S REPORT NO.363 OF 2021
IN
COMMERCIAL EXECUTION APPLICATION (L) NO.1599 OF 2018
Vistra ITCL (India) Ltd. ...Applicants /
Formerly known as IL and FS Trust Co. Ltd. Plaintiffs
and Anr.
Versus
Sanjay Dattatreya Kakade & Ors. ...Defendants
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Mr. Gaurav Joshi, Senior Advocate a/w Mr. Jatin Pore a/w Ms.
Ankita Agrawal a/w Mr. Gaurav Suryavanshi i/b DSK Legal,
Advocates for Applicants / Plaintiffs.
Mrs. Rekha Rane, IInd Assistant to the Court Receiver present.
Mrs. Jyoti Chavan, AGP for Respondent/State present.
Ms.Ankita Singhaniya i/b Essence Legal Services, Advocate for
Respondent Nos.1 to 3.
Mr. Bharat Mehta a/w Ms. Shruti D. Vyas, Senior Panel Counsel for
Union of India in IA (L) No.8156/2020.
Mr. Akshay Deshmukh a/w Mr. Pratik Wakade a/w Mr. Aniket
Pawar, Advocate for Intervener in CHSCDL 920/2018.
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CORAM : R.I. CHAGLA J.
DATE : 06TH MARCH, 2023.
ORDER :
1. Mr. Gaurav Joshi, learned Senior Counsel appearing for the
Applicants has referred to the letter of Valuer Best Mulyankan
3-CRR 363.2021 in COMEX(L) 1599.2018.doc
Consultants Limited dated 16th February, 2023 addressed to the Court
Receiver, wherein certain documents viz. Audited Balance Sheet as on
31st March, 2022 and Trial Balance as on current date are required
for the purpose of valuation of the Equity and Preference Shares of
KCCPL and KEDPL as per the directions of this Court vide order dated
30th January, 2023.
2. The IInd Assistant of the Court Receiver has tendered the
letter received by Valuer Best Mulyankan Consultants Limited.
3. Mrs. Singhaniya, learned Counsel appearing for Respondent
Nos. 1 to 3/Judgment Debtors tenders Additional Affidavit-in- Reply
on behalf of Respondent Nos.1 and 3, further Affidavit of Disclosure
on behalf of Respondent Nos. 1 and 3 and further Affidavit of
Disclosure on behalf of Respondent Nos. 2, which are E-filed. She
states that the copy of Audited Balance Sheet dated 31 st March, 2022
and Trial Balance as on current date required by Valuer Best
Mulyankan Consultants Limited will be made available to them
within a period of one week from today. The statement is accepted.
4. Upon receipt of the requisite documents, the exercise shall be
carried out by Valuer Best Mulyankan Consultants Limited within a
3-CRR 363.2021 in COMEX(L) 1599.2018.doc
period of two weeks therefrom and Valuation Report shall be
submitted to the Court Receiver.
5. Mr. Joshi has sought further orders directing the Court
Receiver who had been appointed by the order dated 24th August,
2018 with all powers under Order 40 including the power of sale, to
take possession of the properties mentioned at Serial No.8 and 13 of
the Annexure-A to the letter dated 31 st October, 2019 addressed by
Advocate for the Applicants to the Court Receiver and wherein the
details of the immovable properties have been set out. These
immovable properties at Serial Nos. 8 and 13 are mentioned as
follows :
Sr. Name Area Address Nature of Detailed Location and
No. Agreement landmark as required
8 Sanjay 7440 Shivaji Nagar, Shivaji Housing S.No.103, Plot No.62, CTS
Kakade Sq.Ft. Bhamburda, Society - Deed No.3168, Shivaji Housing
18/339 CHS of Transfer Co.Op. Soc., Near Bahirat
No.3168, Plot Udyan, Behind Standard
No.62 and Chartered Bank, S.B.
CTS No.3168, Road, Bhamburda, Shivaji
Sr. No.103, Nagar, Pune.
Pune.
13 Sanjay 29450 Shivaji Nagar, Lease Sanjay Kakade Bungalow,
Kakade Sq.Ft. Bhamburda, Agreement Plot No.9, Yashvant
Plot No.9, Ghadge Nagar, Behind
Sr.No.132/B, ABIL House, University
CTS No.2731, Road, Shivajinagar, Pune.
Pune.
6. He has also sought directions with regard to the immovable
3-CRR 363.2021 in COMEX(L) 1599.2018.doc
property mentioned at Sr. No.14 of Annexure A to the said letter
which immovable property is situated at 55, 11A Kakade Paradise,
Ashok Path Lane, Law Collage Road, Pune. The Court Receiver has
taken physical possession in respect of the said immovable property
at Sr. No.14 but directions are sought with regard to sale of the
subject property.
7. Mr. Joshi has further referred to the Affidavit of Disclosure of
Respondent No.2 and in particular, the disclosure made with regard
to the immovable properties at Pages 2586 and 2587 wherein it is
shown that these immovable properties at Sr. No.8, 13 and 14 have
being mortgaged to Lok Mangal Co-Operative Bank Limited, India
Bulls Housing Finance Limited and Samta Nagri Co-Operative Bank
Limited respectively.
8. Mr. Joshi has referred to Sec. 73 of the Code of Civil
Procedure, 1908, wherein under sub Sections (a) & (b) of Sec. 73, it
is provided that - (a) where any property is sold subject to a
mortgage or charge, the mortgage or incumbrancer shall not be
entitled to share in any surplus arising from such sale and (b) where
any property liable to be sold in execution of a decree is subject to a
mortgage or charge, the Court may, with the consent of the
3-CRR 363.2021 in COMEX(L) 1599.2018.doc
mortgagee or incumbrancer, order that the property be sold free from
the mortgage or charge, giving to the mortgagee or incumbrancer the
same interest in the proceeds of the sale as he had in the property
sold.
9. Mr. Joshi has accordingly submitted that the Court Receiver
be directed upon taking physical possession of the aforementioned
properties at Sr. No.8 and 13 as well as in the context of the
immovable property at Sr. No.14 in respect of which the Court
Receiver has already taken possession, obtain the consent of the
aforementioned mortgagee bank / financial institution.
10. Mrs. Singhaniya, leaned Counsel for Respondent Nos. 1 to 3
has raised an objection with regard to immovable property at
aforementioned Sr. No.13 which she states is a residential Bungalow
where the Respondents are residing. She has relied upon Sec.61(1)
(c) of the Code of Civil Procedure, 1908 in this context and has
sought leave to place these facts and submissions on record.
Accordingly, Respondent Nos. 1 to 3 shall file their Affidavits within
two weeks from the date of this order.
11. Considering the submission of Mr. Joshi with regard to the
3-CRR 363.2021 in COMEX(L) 1599.2018.doc
Court Receiver appointed to take physical possession of the
aforementioned subject properties, I am inclined to grant such
directions with respect to the immovable property at Sr. No.8.
Accordingly, the Court Receiver shall take physical possession of the
aforementioned property at Sr. No.8 within a period of three weeks
from the date of this order. Necessary co-operation shall be provided
by the parties to the proceedings with regard to the possession being
taken by the Court Receiver. The Court Receiver is permitted to use
police assistance for taking physical possession of the subject
properties.
12. The Court Receiver upon taking physical possession, shall file
a Report in this Court regarding compliance with this order which
shall be filed within a period of two weeks from obtaining physical
possession.
13. In so far as the sale of these properties are concerned, that
will be considered on the next date, prior to which the Court Receiver
shall address correspondence with the aforementioned mortgagee
bank / financial institution in whose favour the subject properties at
Serial Nos. 8 and 14 have been mortgaged with a view to obtain their
consent with regard to the sale of the subject properties.
3-CRR 363.2021 in COMEX(L) 1599.2018.doc
14. With regard to the subject property at Sr. No.13, similar
direction will be issued only after considering the submissions of Mrs.
Singhaniya, learned Counsel for Respondent Nos. 1 to 3 on the next
date. Accordingly, the Court Receiver shall not take physical
possession with respect to aforementioned immovable property at Sr.
No.13 till further orders.
15. The Court Receiver shall nevertheless take symbolic
possession of aforementioned immovable property at Sr. No.13.
16. The matter shall be placed on 27 th March, 2023 at 2.30 p.m.
for further directions.
17. The Court Receiver's Report No. 363 of 2021 shall be placed
on the next date.
18. It is noted that Respondent Nos. 1 and 2 are present in Court
pursuant to the orders of this Court. Upon request of Advocate for the
Respondent Nos. 1 and 2, the Respondent No. 1 shall remain present
on next date for himself as well as on behalf of Respondent No.2.
[R.I. CHAGLA J.]
