Decided on December 30,2004



K.J.Paratwar, - (1.) THE order passed by Recovery Officer (Shri S.S. Iyer) of this Tribunal in Recovery Proceeding No. 224 of 2001 has aggrieved the Bank - appellant who is Certificate Holder in the Recovery Proceeding. THE Bank has taken possession on 19.12.2003 of Flat No. "A", 108, Shivam - 1, Co-operative Housing Society Ltd., Raheja Complex, Off Western Express Highway, Malad (E), Mumbai 400097 in the execution. By the impugned order on an application (Exh. 43) taken out by Intervener/ respondent No. 1, the learned Recovery Officer directed the appellant to restore possession of the Flat on the ground that the Intervener - respondent No. 1 was in possession of the same on the date of attachment thereof.
(2.) The Intervener had taken out said application on the ground that it is in possession of the flat from the respondent Nos. 2 and 3 under Leave and Licence Agreement dated 21.4.1997 for 3 years with option to extend the licence period for another term of 3 years. In fact, by letter dated 15.2.2000 the respondent No. 2 renewed the Licence for 5 years from 22.4.2000 with option for further renewal for 5 years on 10% escalation in the compensation. The respondent No. 1 has been paying maintenance charges and outgoings since that time. The respondent No. 1 -Intervener claims that on the date of taking physical possession, the learned Recovery Officer was pleased to uphold the Intervener's aforesaid contention and as such directed the Bank to redeliver the possession. The aforesaid order is under challenge in this Appeal on the ground that the learned Recovery Officer did not consider the law and the authorities cited on behalf of the Bank; that the learned Recovery Officer did not consider that Leave and Licence Agreement was required to be on proper stamp duty and registered; that the property was declared by this Tribunal in the judgment to be mortgaged; and that the precious right of the appellant has been deprived.
(3.) VIDE reply in the nature of affidavit of Mr. Gopal Somani (Exh. 5) Director of respondent No. 1, the findings of the learned Recovery Officer are supported while contesting the appeal.;

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