Bombay High Court
M/S. Paper Box Company, Through Its ... vs Cosmos Co-Operative Bank Ltd. And Ors on 10 June, 2024
Author: Gauri Godse
Bench: Gauri Godse
2024:BHC-AS:22802
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Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9846 OF 2017
M/s. Paper Box Company of India
a Partnership Firm, duly registered
under the provisions of Indian
Partnership Act 1932 acting through
its partner Mr. Kamal Bhatiya and
having its registered office at Paper
Box House, Mahakali Caves Road,
Mumbai - 400 093. .....Petitioner
Vs.
1. Cosmos Co-operative Bank Ltd.
having its office at 36A, Maru, Niketan
D.L. Vaidya Road, Dadar (West),
Mumbai - 400 028.
2. M/s. Kalapi Flexible Containers
Ltd., Registered Office at : 4/5,
Rajwadi Shopping Centre,
Chakalasahar Road, Opp.
Cigarette Factory, Andheri (East)
Mumbai - 400 009.
3. Mr. Firoz Kasamali Nanji
4. Mrs. Shirin Firoj Nanji
Respondent Nos. 3 and 4 C/o.
M/s. Kalapi Flexible Containers
Ltd. Registered Office at : 4/5,
Rajwadi Shopping Centre, Chakala,
Sahar Road, Opp. Cigarette
1/24
::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 15:03:23 :::
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Factory, Andheri (East),
Mumbai - 400 009. ....Respondents
Mr. Ashish Gatagat a/w Mr. Vivek Shiralkar, Yashoda Desai, Vijay
Poojari i/b Shiralkar and Co. for the petitioner
Ms. M. P. Thakur, AGP for the State
CORAM: GAURI GODSE, J.
RESERVED ON: 28th FEBRUARY 2024
PRONOUNCED ON: 10th JUNE 2024
JUDGMENT:
BASIC FACTS:
1) This petition is filed to challenge the Judgment and Order passed
by the Co-operative Appellate Court dismissing the petitioner's appeal.
The petitioner had filed an appeal for challenging the order passed by
the Co-operative Court holding that the petitioner had no subsisting
right in the attached flats. The dispute was filed by the bank to recover
the outstanding dues from respondent no. 2. Respondent nos. 3 and 4
are the directors of respondent no. 2. The petitioner claiming right, title
and interest in the attached flats, had filed an application to get
impleaded in the dispute and also prayed for releasing the attachment.
2) The petitioner claimed right, title and interest in the attached flats
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as owner based on an agreement dated 28 th May 1997 and tenancy
rights in favour of M/s. Papco Investment Corporation under tenancy
agreement dated 22nd December 1995. The petitioner claims to have
paid an amount of ₹30 Lakhs to respondent no. 2. The petitioner
further claims that respondent nos. 3 and 4 had executed power of
attorney in favour of one Mohan Bhatiya and Radhika Bhatiya,
empowering them to enter into negotiations for the sale of the attached
property and execute the required documents. The attached properties
are flat nos. 411 and 412, which stood in the name of respondent nos.
3 and 4 ('said flats").
3) The petitioner claims to have paid the amount towards the first
charge on the said flats raised by M/s. TCI Finance Limited. The
petitioner claims to have repaid the amount by filing consent terms in
execution proceedings initiated in this Court for the execution of the
decree passed in the Secunderabad suit in favour of M/s. TCI Finance
Limited. The petitioner thus claims that respondent nos. 3 and 4
thereafter executed an agreement for sale on 28 th May 1997 for
transferring the said flats in the name of the petitioner. Respondent
no.-1 bank filed a recovery suit in the Co-operative Court against
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respondents nos. 2 and 3. In the said suit, an ex-parte order for
attachment before Judgment was passed and a special recovery
officer was appointed for execution of the order of attachment before
Judgment. Hence, on 23rd June 1997, the petitioner informed
respondent no. 1 that right, title, and interest had been created in
favour of the petitioner, and the society has also issued no objection
certificate ("NOC") for the transfer of the said flats in the name of the
petitioner. It is the petitioner's case that in such circumstances, they
filed an application in the Bank's suit for getting impleaded as a party
defendant. Petitioner also filed a separate application for vacating the
order of attachment before Judgment. The petitioner's applications
were rejected. The Bank's Dispute application was allowed, directing
respondent nos. 2 to 4 to pay the outstanding dues with interest, and
the attachment of the flats was continued till the realisation of the
awarded amount. Hence, the petitioner had filed two separate appeals.
The cooperative appellate court disposed of the said appeals by a
common judgment and order setting aside the rejection of the
petitioner's applications and setting aside the continuation of the
attachment order. The cooperative appellate court remanded the
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matter to the cooperative court for holding an inquiry on whether the
petitioner had any subsisting right in the attached flats. After remand,
the Co-operative Court decided the objection raised by the petitioner
and declared that there was no subsisting right of the petitioner in the
attached flats. Hence, the petitioner had filed an appeal before the Co-
operative Appellate Court. However, the said appeal is dismissed,
resulting in confirmation of the order of attachment passed in favour of
respondent no. 1. Hence, the present petition.
SUBMISSIONS ON BEHALF OF THE PETITIONER:
4) Learned counsel for the petitioner submitted that the said flats
are owned by respondent nos. 3 and 4 in their individual capacity and
they have created right, title and interest in favour of the petitioner
much before the order of attachment. It is submitted on behalf of the
petitioner that the dispute filed by the respondent bank was finally
disposed of by Judgment and Award dated 31 st July 1997, directing
respondents nos. 2 to 4 to jointly and severally pay the outstanding
amount with interest and by the said final Award, the order of
attachment before Judgment was directed to be continued till
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execution of the Award. The said part of the Judgment and Award
directing the continuation of the attachment was challenged by the
petitioner by filing an appeal that was allowed, thereby setting aside
the continuation of the order of attachment. Thus, it is the submission
on behalf of the petitioner that once the continuation of the order of
attachment was set aside by the Co-operative Appellate Court,
respondent no. 1-bank was not entitled to proceed further on the basis
of the attachment of the said flats as directed during the pendency of
the dispute.
5) Learned counsel for the petitioner submitted that the agreement
for sale was also executed in favour of the petitioner much prior to the
order of attachment. Hence, a conjoint reading of Sections 54 and 55
of The Transfer of Property Act, 1882, the contract entered into
between petitioner and respondent nos. 2 and 3 would amount to
creating a right in favour of the petitioner. He thus submitted that
transfer in favour of the petitioner would not be affected by Section
95(3) of The Maharashtra Co-Operative Societies Act, 1960 ('MCS
Act'). In support of the said submissions, learned counsel for the
petitioner relied upon the decision of the Hon'ble Supreme Court in the
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case of Vannarakkal Kallalathil Vs. Chandramaath Balakrishnan 1.
Thus, by relying upon the said decision, the learned counsel for the
petitioner submitted that the order of attachment would not override
the contractual rights between the parties, which have created a
substantial right, title and interest in favour of the petitioner. The
agreement in favour of the petitioner was executed on 28 th May 1997
and was registered by a deed of confirmation dated 15 th April 1999.
The challenge to the order of attachment before Judgment is not
accepted by the Co-operative Court as well as the Appellate Court on
the ground that the agreement for sale did not exist before the order of
attachment was passed. Learned counsel submitted that the said
observation by both the Courts is contrary to the proposition of law laid
down by the Hon'ble Supreme Court in the said decision of
Vannarakkal Kallalathil.
6) Learned counsel for the petitioner further submitted that the
agreement for sale in favour of the petitioner is subsisting as the
validity of the same is not challenged or questioned by respondent no.
1 by adopting any appropriate proceedings. Hence, the agreement for
1 1990 3 SCC 291
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sale in favour of the petitioner is valid and subsisting by accepting full
consideration and handing over possession of the said flats to the
petitioner. The shares with respect to the said flats are also transferred
by the society in the name of the petitioner. The initial charge of M/s.
TCI Finance Limited is cleared by the petitioner by making payment of
the entire outstanding amount. Learned counsel thus submitted that
rights were created in favour of the petitioner much before the order
passed for attachment before Judgment was passed, which disentitles
the respondent no. 1-bank to proceed further with respect to the said
flats against the petitioner.
7) In support of the aforesaid submissions, learned counsel for the
petitioner relied upon the order passed by this Court in an execution
application filed in Secunderabad Suit No. 475 of 1997. He submitted
that on 14th March 2012, an execution application filed by M/s. TCI
Finance Limited in this Court is disposed of in terms of the consent
terms. He submitted that the claim of M/s. TCI Finance Limited against
respondent no. 2 was thus settled by the petitioner as the right, title
and interest created in favour of the petitioner by respondent nos. 3
and 4 were accepted in the said proceedings.
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8) Learned counsel for the petitioner submitted that respondent
nos. 3 and 4 are not principal borrowers, and the said flats stood in the
name of respondent nos. 3 and 4 in their individual capacity.
Admittedly, the said flats were never mortgaged with respondent no. 1-
bank. Hence, right, title and interest created in favour of the petitioner
much prior to the order of attachment before Judgment would disentitle
respondent no. 1-bank to proceed against the said flats. Learned
counsel for the petitioner submitted that the order of attachment before
Judgment was an ex-parte order passed in respect of the said flats on
17th June 1997, though the said flats admittedly, were never part of the
secured property with respondent no. 1 Bank.
9) By order of attachment before Judgment, the Court
Commissioner was directed to take possession of the said flats and in
the event any person was found occupying the said flat, the said
persons were directed to be continued in possession as agent of the
Court Commissioner. However, the Court Commissioner has never
completed the procedure, and thus, the order of attachment before
Judgment was never implemented.
10) The learned counsel for the petitioner submitted that much
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before the agreement for sale was executed in favour of the petitioner,
tenancy rights were created in favour of the sister concern of the
petitioner, i.e. M/s. Pepco Investment Corporation and the society had
also issued NOC for the grant of tenancy in favour of M/s. Pepco
Investment Corporation. Partners of M/s. Pepco Investment
Corporation and the partners of the petitioner are the same. Hence,
the petitioner filed an application for vacating the order of attachment
before Judgment. When the main dispute was disposed of, the Co-
operative Court had directed that the order of attachment before
Judgment shall continue till execution of the Award. However, in an
appeal preferred by the petitioner, the order of attachment before
Judgment was set aside. Hence, the respondent bank had no right to
execute the order of attachment before Judgment. Thus, it was
submitted on behalf of the petitioner that the application of the
petitioner filed in the said dispute could not have been rejected on the
ground that there was no subsisting right in favour of the petitioner.
11) Learned counsel for the petitioner relied upon the decision of the
Hon'ble Supreme Court in the case of Bai Hakimbu and others Vs.
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Dayabhai Rugnath2. Learned counsel for the petitioner specifically
relied upon paragraphs 4 and 5 and submitted that the said decision
was regarding the order of attachment not being in accordance with
the provisions of Order XXXVIII, Rules 5 and 6 of the Code of Civil
Procedure, 1908 ("CPC"). By relying upon the said paragraphs,
learned counsel for the petitioner submitted that respondent no. 1 was
required to first call upon respondent nos. 3 and 4 as well as the
petitioner to furnish security or to produce the property or its value and
appear to show cause as to why the property be not attached. In the
event the concerned party fails to comply with the show cause notice
or fails to furnish security, only then the attachment of the property can
be ordered. Learned counsel for the petitioner submitted that the
petitioners were in possession of the said flats based on an agreement
for sale and were never given an opportunity or called upon to furnish
any kind of security. He thus submitted that the order of attachment is
not sustainable for the want of issue of the show cause notice and an
opportunity for the petitioner to furnish the security. He thus submitted
that unless the required process of attachment is not followed, the
2 AIR 1939 Bom 508
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attachment cannot be termed as a valid attachment and there would
be no attachment in the eyes of law. He thus submitted that even
otherwise, the order of attachment before Judgment relied upon by
respondent no. 1 is not a valid attachment as required under Order
XXXVIII Rules 5 and 6 of CPC.
SUBMISSIONS ON BEHALF OF RESPONDENT NO.1:
12) Learned counsel for the respondent no. 1-bank supported the
impugned Judgment and Order. Learned counsel for respondent no. 1
submitted that respondent no. 1-bank had sanctioned a loan in favour
of respondent no. 2 by way of cash credit facility, bills discounting,
term loan and letter of credit, which total amounted to Rupees 1 Crore
60 Lakhs. Since the outstanding dues were not paid by the borrower,
the dispute application was filed by respondent no. 1 along with an
application under Section 95 of the MCS Act read with Order XXXVIII
Rule 5 for attachment before judgment and Order XXXIX Rules 1 and
2 of CPC praying for restraining the respondent nos. 2 to 4 from
disposing of the said flats. Respondent nos. 3 and 4 being directors of
the borrower, i.e. respondent no. 2, they had stood guarantors for the
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loan availed by respondent no. 2 company. Hence, the application for
attachment before Judgment was rightly allowed by the Co-operative
Court for attaching the properties belonging to respondent nos. 3 and
4, who stood as guarantors for the repayment of the loan availed by
respondent no. 2. The petitioner had filed an application for
impleadment as a necessary party in the dispute. The said application
was filed through one Shri. Kamal Bhatiya claiming that the said flats
were given on a tenancy basis and subsequently purchased by the
petitioner on 28th May 1997. However, the supporting documents
would show that the tenancy agreement was never executed in favour
of the petitioner and that the same was in the name of M/s. Pepco
Investment Corporation. With reference to the petitioner's claim that
even the society had issued a NOC for transferring the said flats in the
name of the petitioner is concerned; learned counsel for respondent
no. 1 submitted that perusal of the NOC would show that the same
was a conditional NOC. There is nothing produced on record to show
that the conditions were complied. Hence, the petitioner is not entitled
to seek any benefit based on the said NOC. Thus, the application filed
by the petitioner was rightly rejected by the Co-operative Court.
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13) Learned counsel for respondent no. 1 further submitted that the
petitioner had no subsisting right in the said flat as the agreement for
sale dated 28th May 1997 did not create any right in favour of the
petitioner. He further submitted that even confirmation of the
agreement for sale by way of a registered confirmation deed would not
create any right in favour of the petitioner as the said confirmation
deed was a unilateral declaration made by the petitioner. Learned
counsel for respondent no. 1 further pointed out that the registered
confirmation deed is signed by the constituted attorney of the
petitioner; however, the said authority was never enclosed with the
confirmation deed. He thus submitted that the document of the
agreement for sale could not be termed as a valid and legal document
in support of the petitioner's claim that there is any right, title and
interest created in favour of the petitioner in the said flats by
respondent nos. 3 and 4. The petitioner's claim based on the tenancy
document is dated 21st December 1995 and executed in favour of M/s.
Pepco Investment Corporation and not the petitioner. Further reliance
of the petitioner on the agreement for sale would also not create any
right title and interest in favour of the petitioner as the said agreement
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is executed by the constituted attorney claiming that respondent nos. 3
and 4 had executed power of attorney dated 23 rd December 1995 in
favour of the partners of the M/s. Pepco Investment Corporation. By
referring to the document of power of attorney, learned counsel for
respondent no. 1 submitted that the said document was executed on a
stamp paper of ₹90. Hence, the document is not admissible in
evidence. Thus, it was submitted that neither the document of tenancy
nor the document of agreement for sale would create any right, title
and interest in favour of the petitioner for praying to vacate the order of
attachment. He thus submitted that the Co-operative Court has rightly
rejected the application filed by the petitioner, and the same is rightly
confirmed by the Co-operative Appellate Court.
ANALYSIS:
14) I have considered the rival submissions made by both parties.
Before examining the rival contentions, it is necessary to refer to the
basic undisputed facts. Respondent no. 1-Bank filed the Dispute for
recovering outstanding dues of Rupees One Crore and Sixty Lakhs
from respondents nos. 2 to 4. Respondent No. 2 - Company is the
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principal borrower and respondents nos. 3 and 4 are the Directors of
respondent no. 2, who stood as guarantors for the loans advanced to
respondent no. 2. The two flats in question were not mortgaged with
the bank. In the Dispute, the Bank filed applications for interim relief for
restraining respondent nos. 3 and 4 from alienating the flats and also
prayed for attachment of the two flats standing in the name of
respondents nos. 3 and 4. By Order dated 17 th June 1997,
Cooperative Court ordered the attachment of the flats and directed the
court commissioner to take possession of the flats with a direction that
if the respondents nos. 2 to 4 paid 50% of the outstanding dues, then
the attachment should be released and respondents nos. 3 and 4 shall
be restrained from parting with possession or creating third-party
interest in the flats.
15) Admittedly, the outstanding dues were not paid. The petitioner
filed applications in the dispute praying for impleadment as party and
for releasing the attachment. By order dated 30 th July 1997, the
petitioner's applications were rejected by the Cooperative Court. By
Judgment and Award dated 31 st July 1997, the Dispute was allowed,
directing respondents nos. 2 to 4 to pay the outstanding dues and the
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attachment and injunction order was continued till recovery of the
awarded amount. The petitioner filed two separate appeals to
challenge the rejection of the petitioner's objection to attachment and
to challenge the continuation of the order of attachment while allowing
the Dispute. The Cooperative Appellate Court disposed of both
appeals by a common judgment and order dated 22 nd October 2002
and set aside the order dated 30 th July 1997 and also set aside the
order continuing the order of attachment pending execution of the
Award. The appellate court remanded the matter to the cooperative
court, directing it to decide whether the petitioner had subsisting rights
in the flats.
16) The remand order was not challenged. Hence, it is the argument
of the petitioner that once the order continuing the attachment was set
aside while remanding the matter to the cooperative court, the bank
had no authority to proceed with the attachment against the petitioner.
I do not see any substance in this argument, as after the remand
order, the cooperative held an inquiry and recorded a finding that there
is no right, title or interest created in favour of the petitioner on the
basis of documents relied upon by the petitioner and thus declared
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that the petitioner had no subsisting right in the attached flats. By the
remand order passed by the appellate court, the continuation of the
order of attachment pending the execution of the Award was set aside
to enable the cooperative court to hold an inquiry on the objection to
the attachment raised by the petitioner and find out whether the
petitioner had any subsisting right in the attached flats. Thus, only the
continuation of the attachment order was set aside. Therefore, once
after holding an inquiry on the petitioner's objection, it is declared that
the petitioner had no subsisting right in the attached flat, the
attachment continues.
17) A perusal of the judgment and order of the cooperative court
indicates that the petitioner's oral as well as documentary evidence
relied upon to claim right in the attached flats is not accepted. It was
held that the tenancy agreement of 1995 relied upon by the petitioner
was executed in the name of Pepco Investment Corporation and not in
favour of the petitioner. The case of the petitioner, based on a power of
attorney executed by respondent nos. 3 and 4 in favour of Pepco
Investment Corporation was not accepted as the same did not confer
any title in favour of the petitioner. It is held that the agreement dated
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28th May 1997, though executed prior to the order of attachment dated
17th June 1997, the same does not create any right in favour of the
petitioner as the terms of the agreement provided for certain
compliances before execution of the document of transfer. The
confirmation deed is also not believed on the ground that it was not
signed by the owners and did not confer any title. Thus, it was held
that except for the right to protect possession under Section 53A of the
Transfer Property Act 1882 ("TP Act"), the document relied upon by the
petitioner did not confer any title in favour of the petitioner in view of
Section 54 of the TP Act.
18) The appellate court also examined the oral and documentary
evidence relied upon by the petitioner. After reappreciating the
evidence, the appellate court confirmed the findings recorded by the
cooperative court. Thus, the order deciding the petitioner's objection
and declaring that the petitioner had no subsisting right in the attached
flat is confirmed.
19) Respondents nos. 2 to 4 were given the option to secure the
outstanding amount by paying or depositing 50% of it. However,
respondents nos. 2 to 4 failed to even appear in the Dispute
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proceedings and contest the case. Hence, the Bank's contentions in
the dispute application remained uncontested. Thus, the cooperative
court accepted the Bank's case and allowed the Bank's Dispute
application directing respondents nos. 2 to 4 to jointly and severally
pay the outstanding amount with interest. Admittedly, the show cause
issued by the court was not answered, and the option given to deposit
the 50% amount was not availed. Hence, the interim order of
attachment was confirmed, and the Dispute application was allowed.
The petitioner's objection to the attachment order was dismissed.
Hence, while allowing the dispute application, directions were issued
to continue the attachment till the full realisation of the awarded
amount. Admittedly, the petitioner also failed to secure the outstanding
amount. A perusal of the attachment order shows that directions were
issued to take possession of the flats and continue the occupant in
possession as the agent of the court receiver. Thus, in the absence of
any cogent material to show that the petitioner had any subsisting right
in the attached flats, the petitioner cannot be permitted to take any
advantage by arguing that the attached flats were never actually
attached or that the attachment order was not implemented by the
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court commissioner. Thus, the decision of the Hon'ble Supreme Court
in the case of Bai Hakimbu, relied upon by the learned counsel for the
petitioner, is of no assistance to the case of the petitioner.
20) The petitioner is objecting to the attachment of the flats on the
ground that a subsisting right is created in favour of the petitioner prior
to the order of attachment. To substantiate the grounds of objection,
the petitioner relies upon a tenancy agreement executed prior to the
order of attachment. However, the tenancy agreement is not in favour
of the petitioner. The tenancy agreement appears to be in the name of
another company, Pepco Investment Corporation. The petitioner relies
upon payment advanced to respondent no. 2 prior to the order of
attachment and execution of an agreement for sale to secure the
amount advanced. However, the said document does not confer any
title to the petitioner. The petitioner also relies upon payment made to
TCI Finance to clear the debts of respondent no. 2 by entering into
consent terms in an execution application in this court for the
execution of a decree passed by the Secunderabad court. However,
none of the above creates any right, title or interest in favour of the
petitioner in respect of the flats. Even the registered confirmation deed
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executed after the attachment order is not signed by the owners and is
a unilateral declaration. Thus, even the said document does not
confer any title in favour of the petitioner. Thus, even assuming that
there was some agreement executed in favour of the petitioner prior to
the order of attachment, none of the actions claimed by the petitioner
has culminated in conferring any title in favour of the petitioner. Hence,
there is no substance in the reliance placed on Sections 54 and 55 of
The TP Act. Therefore the decision of the Hon'ble Supreme Court in
the case of Vannarakkal Kallalathil relied upon by the learned counsel
for the petitioner is of no assistance to the petitioner's case.
21) There is also no substance in the argument of the learned
counsel for the petitioner that the agreement for sale in favour of the
petitioner subsists as the validity of the same is not challenged or
questioned by the Bank. The obligation to substantiate the claim of
having title to the flats was upon the petitioner. Once failed to establish
any title to the flats, the Bank is entitled to proceed further against the
attached flats to recover the outstanding amount in execution of the
judgment and award.
22) Thus, I find substance in the arguments raised by the learned
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counsel for the Bank. None of the supporting documents relied upon
by the learned counsel for the petitioner regarding the tenancy
agreement in the name of M/s. Pepco Investment Corporation, the
conditional NOC issued by the society for transferring the said flats in
the name of the petitioner, the agreement for sale and the confirmation
deed, confer valid title in favour of the petitioner. Learned counsel for
the Bank rightly pointed out that the registered confirmation deed is not
signed by the owners and is signed only by the constituted attorney of
the petitioner; however, the said authority was never enclosed with the
confirmation deed. Thus, even if the document is registered, the same
cannot be termed as a valid and legal document in support of the
petitioner's claim that there is any right, title and interest created in
favour of the petitioner in the said flats by respondent nos. 3 and 4.
23) It is a well-established principle of law that the High Court can
interfere in the exercise of its power of superintendence when there
has been a patent perversity in the order the courts subordinate to it or
when there is a gross and manifest failure of justice, or the basic
principles of natural justice have been flouted, and the writ jurisdiction
has to be very sparingly exercised.
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24) I do not find that the cooperative courts have committed any
jurisdictional error. There is no violation of the principles of natural
justice. I do not find any manifest error or perversity in the reasons
recorded in the impugned judgments and order. This is not a fit case
for exercising powers under Article 227 of the Constitution of India.
25) For the reasons recorded above, the petition is dismissed.
[GAURI GODSE, J.]
26) At this stage, learned counsel for the petitioner seeks extension
of ad-interim protection which is operating till date.
27) The ad-interim protection as recorded in order dated
6th September 2017 to continue for a period of six weeks from today.
[GAURI GODSE, J.]
IRESH Digitally signed by
IRESH MASHAL
MASHAL Date: 2024.06.10
19:54:41 +0530
