Appeal No. 17 of 2008. Case: Kirtikumar Dresswala Vs Dena Bank and Ors.. Mumbai Debt Recovery Tribunals
| Case Number | Appeal No. 17 of 2008 |
| Judges | K. J. Paratwar, Presiding Officer |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XXI Rules 21, 89, 90, 92; Order XXXIV Rule 5 |
| Judgement Date | September 05, 2008 |
| Court | Mumbai Debt Recovery Tribunals |
Judgment:
K. J. Paratwar, Presiding Officer
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The Appellants are aggrieved by order dated 04.03.2008 passed the Ld. Recovery Officer (Mr. P.K. Chaturvedi) of this Tribunal below Exh. 30 in Recovery Proceeding. No. 197 of 2005. The Appellants are Certificate Debtors in the said Recovery Proceeding. On their failure to pay the amount of Recovery Certificate, the Ld. Recovery Officer proceeded against mortgaged flat being No. 1 situated in building called Shanti Niketan at Plot No. 95-A, Marine Drive, Mumbai-400002 and issued Proclamation for Sale of the same.
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The Appellants had taken out an application (Exh. 30) before the Ld. Recovery Officer for: (i) declaring Sale Proclamation dated 27.12.2007 as null and void, (ii) staying the sale scheduled on 07.03.2008 and for re-valuation of the property on the ground that the same was used for commercial purposes while the valuation done by the Tribunal Receiver was as residential premises. The said application was also filed on many other grounds. All the grounds except the ground of re-valuation seem to have been given up before the Ld. Recovery Officer at the time of arguments before him. It has been accordingly noted by the Ld. Recovery Officer in the impugned order and the factual noting has not been controverted before me. The scope of the Appeal, is thus limited.
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The Ld. Recovery Officer heard the parties and was pleased to reject the application at Exh. 30. The Ld. Recovery Officer observed that the premises are residential and not commercial and as such upheld the valuation thereof and consequently refused to (i) get the property re-valued and (ii) set aside the Proclamation of Sale. After he passed according order on 04.03.2008 he proceeded to sale the property on 07.03.2008 during the pendency of the Appeal, having earlier been filed on 05.03.2008.
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In the grounds of the Appeal, although concentration is on the wrong and incorrect valuation, the Appellants have also taken other grounds earlier taken in the application before the Ld. Recovery Officer. However, as noted above, since all the other grounds have been abandoned, the scope of the Appeal, is limited i.e. on the point of valuation. It is contended that the Ld. Recovery Officer failed to consider that there was ample evidence on the record showing that the premises were actually used for commercial purposes. Apart from the licence under Bombay Shop & Establishment Act there were Maintenance Bills from the society stating that the premises are used for commercial purposes. The Ld. Recovery Officer, it is further submitted that, has failed to consider that the Bank was aware of the fact that the premises are shop premises. The order is said to be bad in law and unsustainable.
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In the grounds of the Appeal, although concentration is on the wrong and incorrect valuation, the Appellants have also taken other grounds earlier taken in the application before the Ld. Recovery Officer. However, as noted above, since all the other grounds have been abandoned, the scope of the Appeal, is limited i.e. on the point of valuation. It is contended that the Ld. Recovery Officer failed to consider that there was ample evidence on the record showing that the premises were actually used for commercial purposes. Apart from the licence under Bombay Shop & Establishment Act there were Maintenance Bills from the society stating that the premises are used for commercial purposes. The Ld. Recovery Officer, it is further submitted that, has...
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