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(13) AO 37 2019

IN THE HIGH COURT OF BOMBAY AT GOA

APPEAL FROM ORDER NO 37 OF 2019

TERSEE M. FERNANDES

AND 2 ORS., …... APPELLANTS

VS

BALTAZAR DAS NEVES

FERNANDES AND 2 ORS., ….... RESPONDENTS

Mr. Galileo F. Teles, Advocate for the Appellants.

Mr. M. D. Costa, Senior Advocate with Ms. K. Betquecar, Advocate for the

Respondent no.1.

Mr. F. E. Noronha, Advocate for the Respondents no.2 and 3.

CORAM: M. S. SONAK, J.

DATE : 6th July, 2021.

ORDER:

Heard Mr. G. Teles, the learned counsel for the appellants, Mr. M.D.

D'Costa, the learned Senior Advocate who appears with Ms. K. Betquecar, for

the respondent no.1 and Mr. F. E. Noronha, the learned counsel for the

respondent nos. 2 and 3.

2.

This is an Appeal Against Order dated 5/3/20219 made by the learned

Senior Civil Judge at Margao (Inventory Court) disposing of the appellants'

application at Exhibit B-1 for re-opening of the inventory proceedings and for

re-auctioning of the assets of the inventory proceeding at Exhibit 19.

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(13) AO 37 2019

3.

Mr. Teles, the learned counsel for the appellants at the outset points out

that there was an error o the part of the appellants in relying on the decision in

Vilas Atmaram Bandodkar vs. Atmaram P. Bandodkar 2010 Goa L. R. 175,

since this decision stands reversed by the Hon'ble Apex Court in Baburao

Karekar and anr. Vs. Vilas Atmaram Bandodkar (2015) 12 SCC 659 . Mr.

Teles, however, submits that even in terms of the decision of the Hon'ble Apex

Court, owlety amount or at least the prescribed percentage has to be deposited

within three days from the date of demand. He points out that the time period

of three days is to be assessed based on what is set out in the decision of the

Hon'ble Supreme Court in Baburao Karekar (supra).

4.

Mr. Teles submits that in the present case the auction was held on

7/7/2001 and the chart based on the auction was prepared on 11/7/2001. He

submits that till date the auction purchasers have not paid any percentage of the

owelty amount. He submits that in the year 2015, the appellants required the

auction purchasers to deposit such amount. But the auction purchasers resisted

the same by urging that the demand was too late. He submits that till date, no

portion of the owelty amount has been deposited by the auction purchasers and

therefore, going by the ruling in Baburao Karekar (supra) as also the legal

position, a re-auction will have to be held by reopening the inventory

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(13) AO 37 2019

proceedings.

5.

Mr. M. B. D'Costa, the learned Senior Advocate and Mr. F.E. Noronha in

unisim point out that the time for depositing commences from the date of

demand. They point out that by reference to the roznama that a specific notice

was issued to the father of the appellants requiring him to raise a demand. That

such notice was ultimately served by substituted service on 7/7/2001. They

point out that even after 11/7/2001 despite opportunity, no demand was raised

by the father of the appellants. Mr. Noronha points out that in the year 2015,

the appellants straightaway applied for setting aside of the auction without

making any demand. He points out that the respondent nos.2 and 3 specifically

applied to the Inventory Court for deposit of the amount, from which it is quite

clear that there was no resistance to the deposit. Mr. D'Costa and Mr. Noronha

submit that even now, the respondents are most eager to deposit the amount

and, that too, with interest as is specified under the law. They, therefore, submits

that there is no error with the view taken by the inventory Court and this appeal

may be dismissed.

6.

The rival contentions now fall fo