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2012 Supreme(Bom) 2063
High Court of Judicature at Bombay
ANOOP V. MOHTA, J.
Dr. Krishna Ganpat Karekar & Another
Versus
Pradip Janardan Mangaonkar of Mumbai
Insolvency Petition No. 10 of 2010
Decided on : 29-10-2012
For the Creditor:R.V. Vengurlekar, Advocate.
For the Debtor:Karl Shroff i/by Tanvir Shaikh, G.M. Joshi, Advocates.
Headnote:Presidency Towns Insolvency Act, 1909 - Sections 9(b) and 12(1)(c) - Insolvency proceedings.
Since delay in taking out insolvency proceedings cannot be condoned hence petition under Section 12 of Act deserves to be rejected. - The foremost question, therefore, is delay in taking out proceedings under the Act against the debtor in Section 12(1)(c). The purpose and object of the Act just cannot be overlooked while considering the aspect of delay in such matter. In the present case, the admitted facts and the debt so referred above, need to be taken into consideration without going to the trial of the matter.
Therefore, taking over all view of the matter it is clear that the provisions so referred and read by the parties are mandatory. There is no question of extension of limitation by applying and/or invoking the provisions of the Limitation Act. There is no question of even condonation of delay. In this background in view of the above admitted position on record, the petition so filed by the Bank is beyond limitation and, therefore, rejected without expressing anything on merits.
The Petitioning creditor has invoked the provisions of The Presidency Towns Insolvency Act, 1909 (for short, the Insolvency Act).
2. The basic facts are as under: On 31 March, 2003, The Care Cooperative Bank Ltd. (Care Bank) granted loan to The Debtor, being The Director of the Care Bank, of Rs.800 LAC @ 18% against The Equitable Mortgage, by depositing The Title Deeds in respect of the Shop No. B7, situated at Neel Ratna Chs Ltd., 107, Mapkhan Nagar, Marol Naka, Andhri (East), Mumbai 400 005, with Sixty Monthly installments of Rs. 13,33300, with last Installment due on 11 April, 2008. The Debtor was also Guarantor for M/s. Swami Samarth Textile, Prop. Shri Sunil Kumar Kanodia. The Debtor created The Equitable Mortgage of the shop, in favour of Care Bank. The Title Deeds of the Shop are still in possession of the Petitioning Creditors.
3. On 12 June, 2003, the Respondent (Pradip) has purchased the property/shop by a registered agreement for sale and the possession of the same was taken forcibly on 17 April 2009 by the SRO (Special Recovery Officer) of the Petitioning Creditor in pursuance to the Recovery Certificate dated 10 April 2009. The SRO has knowledge of the transaction of the year 2003.
4. On 8 September, 2006, the Petitioning Creditors obtained the Recovery Certificate No. 2192 of 2006, against the Debtor, for Rs. 6,83,055.00, with interest thereon @ 17.5% from 1st April, 2006 till payment. The copy of the said Recovery Certificate was served upon the Debtor, not upon the respondent who is not the original debtor.
5. On 10 April, 2007, the Petitioning creditors also obtained Recovery Certificate against M/s. Swami Samarth Textile & Guarantors (including The Debtor herein, being the Guarantors) bearing Recovery Certificate No.2113 of 2006 for Rs. 14,88,267.00, with interest thereon @ 17.5% from 1 April, 2006 till payment. The copy of the Recovery Certificate was also served upon the Debtor.
6. On 10 June, 2008, Care Bank was merged with the Petitioning creditors, as per the Order passed by the Registrar and Commissioner of the Cooperative societies, Pune, MS.
7. On 6 October, 2008, the Special Sales and Recovery Officer (SRO) of The Petitioning Creditors, sent Demand Notices, to pay the amount due under the Recovery Certificates, as none of the parties therein had filed the Appeal against the Recovery Certificates. On 5 November, 2008 the SRO of the Petitioning Creditors sent Notice before attachment dated 5 November, 2008, to the Debtor, under the Recovery Certificate No.2112/06.
8. On 17 April 2009, the SRO of the Petitioning Creditors, went to take the physical possession of the Shop and the debtor, voluntarily and willingly, handed over the symbolic possession of the Shop to the SRO who drew the punchnama dated 17 April, 2009 to that effect, bearing the signature of the Debtor and the Debtor informed the sale of the shop to the Respondent, by furnishing Xerox copy of the Agreement, thereof.
9. On 21 April, 2009, the SRO of the Petitioning Creditor sent letter to the Respondent inter alia informing him, for attachment of the shop and to sell the Shop in Public auction, as per the law, as the xerox copy of the agreement dated 12 June, 2003, produced by the Debtor, was not stamped and registered and the shop is still in the name of the Debtor in the record of the Society, as the owner thereof.
10. On 6 June, 2009, the Respondent made the Application to SRO for establishing his rights on the shop, under the Maharashtra Cooperative Societies Act, 1960 (MCS Act). The SRO, after hearing all concerned parties, passed the order inter alia rejecting the Application of the Respondent, with the Order. The premises attached belonged to Respondent No.3, Shri Krishna Ganpat Karekar (i.e. the Debtor herein) therefore the attachment and punchanama, carried out, is legal.
11. On 9 September, 2009, the Respondent challenged the order dated 6 June, 2009 of the SRO, before Divisional Joint Registrar (DJR) by filing Revision Ap
