Appeal No. 1 of 2005. Case: Chandrashekhar Vs Recovery Officer, Debts Recovery Tribunal and Ors.. Nagpur Debt Recovery Tribunals
| Case Number | Appeal No. 1 of 2005 |
| Counsel | For Appellant: J.S. Mokadam, Adv. and For Respondents: A.A. Bade, Adv. for the Respondent No. 1, S.B. Dhoble, Adv. for Respondent No. 3, R.V. Shah, Adv. for Respondent Nos. 4, 9 and 10 |
| Judges | K.J. Paratwar, Presiding Officer |
| Issue | Income Tax Act, 1961 - Schedule II - Rules 11, 11(3), 11(5); Transfer of Property Act, 1882 - Section 65A and 65A(2); Code of Civil Procedure, 1908 (CPC) - Order 21 |
| Citation | IV (2005) BC 1 |
| Judgement Date | July 08, 2005 |
| Court | Nagpur Debt Recovery Tribunals |
Judgment:
K.J. Paratwar, Presiding Officer
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The order passed on 2nd February, 2005 by learned Recovery Officer (Smt. H.D. Gajbhiye) of this Tribunal disallowing M.A. No. 17/ 2004 in R.P.No. 150/2003 (arising from O.A. 185/2001) has aggrieved the appellant-objector, who had taken out the said application.
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The appellant's case in this appeal (as also in the M.A. before the learned Recovery Officer) has been that he is in possession of the property commonly called as 'Shivaji Mangal Karyalaya' as lessee since from 1st November, 1998. It is the appellant's case that respondent Nos. 4 to 10 executed Deed of Lease with yearly rent of Rs. 1.50 lakhs and put the appellant in possession. On, or about 3rd November, 2004 respondent No. 3 along with 10-15 persons came over the property and claimed that he had purchased it in auction conducted by Recovery Officer of this Tribunal and that the sale certificate has been issued in his favour pursuant to confirmation of the sale. Thus the appellant's possession was seriously threatened. That was why the appellant took out objection under Rule 11 of 2nd Schedule to Income Tax Act, 1961 seeking order directing the respondent No. 3 not to interfere in lawful physical and peaceful possession.
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The respondent No. 2 contested the objection. The appellant's possession, muchless legal, is contested. The Lease Deed is said to be sham arid bogus document.
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The learned Recovery Officer, after taking into consideration the evidence and circumstances on record and on hearing the learned Counsel for the parties was pleased to disallow the objection and direct the appellant to deliver vacant possession within 15 days failing which forcible possession was directed to be taken. The learned Recovery Officer found that the property was mortgaged way back in 1987; that the certificate debtors allegedly leased the property much thereafter (1.11.98) without knowledge of the mortgagee-respondent No. 1 Bank. The Lease Deed being not registered, is not legal document. No one had pointed out in that recovery proceedings during the course of one year when She proclamation was pasted on 3 occasions about the lease between the appellant and respondent Nos. 4 to 10. That is how the learned Recovery Officer had turned down the contentions taken up by the appellant, while disposing of the objection.
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The impugned order is said to be bad inter alia because the learned Recovery Officer exceeded her jurisdiction inasmuch as she went on to disallow the appellants claim of being tenant. That was in contravention of the legal position that the Recovery Officer cannot go into the question of appellant's right of possession. The appellant's contention is that no sooner the learned Recovery Officer was shown that the appellant is in possession, she should have directed delivery of only symbolic possession. The direction to give physical possession contravenes the appellant's statutory right of remaining...
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