Insolvency Petition No. 10 of 2010. Case: Dr. Krishna Ganpat Karekar and Apna Sahakari Bank Ltd. a Society deemed to be registered under The Maharashtra Co-operative Societies Act, 1960, having its registered office at Apna Bazar, 106, A Govindji Keni Road, Naigaon, Mumbai 400014 and The Administrative office at Apna Bank Bhavan, Dr. S.S. Rao Road, Parel, Mumbai 400012 Vs Shri Pradip Janardan Mangaonkar of Mumbai, Adult, Indian Inhabitant, residing at Flat No. 19/A/202, Shivaliya Cooperative Housing Society Ltd., Shivdham Complex, Film city Road, Malad (East), Mumbai 400097 and Working for Gain, at The office No. 4/1/G, Navjivan Cooperative Housing Society Ltd., Lamington Road, Mumbai 400009. High Court of Bombay (India)
| Case Number | Insolvency Petition No. 10 of 2010 |
| Counsel | For Appellant: Mr. R.V. Vengurlekar, Adv. And For Respondents: Mr. Karl Shroff i/by Tanvir Shaikh, Adv. And For Debtor: Mr. G.M. Joshi, Adv. |
| Judges | Anoop V. Mohta, J. |
| Issue | Limitation Act, 1963 (36 of 1963) - Section 5; Maharashtra Co-operative Societies Act, 1960 - Section 101; Registration Act, 1908 - Sections 47, 49; Transfer of Property Act, 1882 - Sections 123, 17 |
| Judgement Date | October 29, 2012 |
| Court | High Court of Bombay (India) |
Judgment:
Anoop V. Mohta, J.
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The Petitioning creditor has invoked the provisions of The Presidency Towns Insolvency Act, 1909 (for short, the Insolvency Act). 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. 8-00 LAC @ 18% against The Equitable Mortgage, by depositing The Title Deeds in respect of the Shop No. B-7, situated at Neel Ratna Chs Ltd., 107, Mapkhan Nagar, Marol Naka, andheri (East), Mumbai 400 005, with Sixty Monthly installments of Rs. 13,333-00, 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.
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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.
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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.
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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.
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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.
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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.
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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 panchnamas 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.
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On 21 April...
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