Decided on February 01,2006



K.J.Paratwar, - (1.) THIS is second time that the appellant has come to this Tribunal. She had earlier filed Appeal No. 7 of 2004 challenging order dated 11.2.2004 of learned Recovery Officer (Shri Singh) directing taking over possession of Flat No. 20, 5th Floor, Bhavna Vallabh Nagar Co-operative Housing Society Limited, Juhu Vile Parle Development Scheme (JVPD), Mumbai-400056 on 12.2.2004. While disposing of said Appeal this Tribunal remanded back the matter to the learned Recovery Officer with direction to hear the parties and pass speaking order. The order passed on 26.3.2004 by learned Recovery Officer pursuant thereto has aggrieved the appellant.
(2.) The appellant was intervener in Recovery Proceeding (RP) No. 89 of 2001. In October 2003, the appellant took out intervention application before the learned Recovery Officer which was accompanied with application for lifting attachment over Flat No. 20. The appellant's case is that she is owner in possession of the flat. As such, the learned Recovery Officer could not have attached the same. It is stated that the flat was mortgaged to M/s. Prithvi Leasing and Financing Limited. There was irrevocable power of attorney including right to sale in favour of Prithvi Leasing and Financing Limited. The mortgage of the flat in favour of the Bank therefore could not have been created. The learned Recovery Officer is said to have erred in not appreciating that the order of Hon'ble High Court of Judicature at Bombay appointing the Receiver and the property being custodia legis was in the nature of interim arrangement. It is stated that when the identity of the flat was not in controversy, the mis-description or wrong number of the flat should not have come in the appellant's way.
(3.) THE respondent No. 1 through affidavit of Mr. Manoj Kumar (Exh. 9) has supported the impugned judgment and submitted that respondent Nos. 2 to 9 are absconding since September 1998. Yet collusive suit is filed in Small Causes Court against said respondents through their constituted attorney Mr. Santosh Shetty (husband of appellant). It is contended that the mortgage of the flat in favour of the Bank was created by respondent Nos. 2 to 10 on 9.1.1998 and accordingly declaration has been given by this Tribunal while disposing of the original application. THE agreement dated 6.10.2001 purportedly executed by Mr. J.V. Patni (through Mr. Santosh Shetty) in the appellant's favour is a sham and bogus document. In any case, at the time agreement coming into existence, the flat was also in possession of the Court Receiver appointed by Hon'ble High Court of Judicature at Bombay (Hon'ble Shri Justice A.P. Shah) by order dated 17.3.1999. THE learned Recovery Officer is said to have correctly appreciated the facts and come to the right conclusion. THE dismissal of the appeal is sought for.;

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