Decided on August 05,2005



K.J.Paratwar, - (1.) BEING aggrieved by the order passed by learned Recovery Officer (Mr. K.G. Madankar) of this Tribunal on 28th April, 2005 in I.A. No. 42/2004 in R.P. No. 23/2003, the Certificator Debtor Nos. 3A to 3D in R.P. No. 23/2003 have filed this appeal.
(2.) In order to understand the controversy, it is necessary to set out these facts : The respondent-No. 1 Bank had filed Spl. Civil Suit No. 48/90 in the Court of Civil Judge, Sr.Dn., Nagpur. The suit was decreed by judgment dated 20.7.1994 inter alia providing that the LRs of defendant No. 3 (who died on 1.8.1991 i.e. during pendency of the suit) would be liable to the extent of estate, if any, in their hands from the deceased. The Bank had filed Darkhast pursuant to the aforesaid decree. Since the decretal amount was a crore and above, the Bank filed application under Section 31-A or RDB Act in this Tribunal being M.A. No. 473/2003 for issuance of Recovery Certificate. The application was allowed by my learned predecessor by order dated 21.1.2003. The Recovery Certificate issued pursuant thereto also provided that the present appellants (being LRs of deceased Mr. Murlidhar) were liable to the extent of assets in their hands from the deceased. Pursuant thereto R.P. No. 23/2003 was registered in which the learned Recovery Officer issued warrant of attachment on 2nd December, 2003. On the Certificator Debtor's request, my learned predecessor had rectified the Recovery Certificate pursuant to which fresh warrant of attachment dated 25th April, 2004 was levied inter alia in respect of House No. 630, Ghat Road, Kanoria Bhawan, Nagpur which is subject matter of this appeal. On 18.7.2004 the appellants herein lodged objection before the Recovery Officer (which was registered as I.S. 42/2004) and prayed for lifting the attachment on the ground that appellant No. 1-A is exclusive owner of the property in her own rights. In other words, the ground of objection was that the property did not come to her from deceased Mr. Murlidhar. The foundation of the objection has been that the property was purchased by M/s. Kanoria Bros., a firm registered under Indian Partnership Act from Janata Construction Co. Pvt. Ltd. vide registered Sale Deed dated 22.11.1966. The appellant No. 1-A was partner in the firm (having 10% share), her husband i.e. deceased Mr. Murlidhar also having 10% share while remaining 8 partners having 10% share each. The firm came to be dissolved by dissolution deed dated 1.7.1984. Under that deed, the appellant No. 1-A became exclusive owner of the property. Thus, the appellant No. 1 -A is owner since long before death of Mr. Murlidhar which means that she did not become owner through Mr. Murlidhar. Her ownership is recorded in the public record. In the objection giving rise to this appeal the appellants prayed for lifting attachment over the property on aforesaid grounds.
(3.) THE respondent No. 1 Bank opposed the prayer by inter alia contending that the appellants did not file evidence to show that the property was purchased by them. It was contended that merely because the appellant No. 1-A is shown to be owner of the property in public record, she did not become owner. THE contention is that deceased Mr. Murlidhar and his brother Mr. Beniprasad (D2 in the suit) both director guarantors of the borrower company (namely M/s. Kanoria Haycock Sanderson Ltd.) were owners of the property. While opposing the objection the levying of attachment is supported on these grounds.;

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