S.C. Gupte, J. - (1.) THESE two Notices of Motion, Notice of Motion No. 5 of 2014 and Notice of Motion No. 43 of 2014, seek deletion of subject properties from the list of assets of the insolvent and directions to the Official Assignee not to seek possession or auction of the properties. Notice of Motion No. 5 of 2014 is in respect of Flat No. B -295, Sarita Vihar situated in Delhi Development Authorities ("DDA"), New Delhi - 110 044, whereas Notice of Motion No. 43 of 2014 is in respect of Flat No. C -624, Sarita Vihar situated in Delhi Development Authorities, New Delhi 110 - 044. Directors were originally sought on behalf of the insolvents to the Official Assignee to take all necessary and immediate steps with a view to seek custody/ charge and possession of the assets and properties of the insolvents, which purportedly include two properties described above. The case of the Applicants is that the title in respect of these properties vests in the Applicant; that the Applicant is in possession of these properties, and that the Applicant being a stranger to the insolvency, the Insolvency Court has no jurisdiction to decide the title of these properties or take possession thereof from the Applicant.
(2.) THE facts of the case may be stated as follows: On 17 December 2003, this Court by orders separately passed in two insolvency petitions (Insolvency Petition Nos. 82 of 2002 and 28 of 2001) declared one Bansi Jaising and his two sons, namely, Ravi Jaising and Avinash Jaising as insolvents. On 29 June 2013, Avinash Jaising took out a Notice of Motion (Notice of Motion No. 25 of 2013), claiming various reliefs and directions against the Official Assignee. In the first place, a direction was sought against the Official Assignee to file a report inter alia explaining inaction for more than 10 years in commencing adjudication proceedings concerning the insolvent Ravi Jaising (Insolvent No. 1) and his estate. Directions were also sought regarding the assets of Ravi Jaising (insolvent No. 2). Along with these directions, orders were sought for taking custody/ charge and possession of the assets and properties of Bansi Jaising and Ravi Jaising. In the list of assets purportedly owed by Bansi Jaising which was annexed to the Notice of Motion, the residential flat described above, namely, Flat No. B -295 was disclosed by the Applicant Avinash. As far as the other flat, namely, Flat No. C -624 is concerned, it was said to form part of assets owed by late Ratna Jaising, wife of Bansi Jaising. It was submitted that this flat was willed away by late Ratna to her daughter -in -law, Ms Monisha, wife of Ravi Jaising, and a testamentary petition was filed by Ms Monisha Jaising for probate of the will. By an order dated 22 July 2014, after hearing Counsel for Ms Monisha Jaising. Applicant Avinash and Official Assignee, this Court noted the statement of Counsel for Ms Monisha that flat No. C - 624 was bequeathed to her by the deceased Ratna Jaising under a will and last testament dated 12 May 2010 and that Monisha, as a well wisher of the insolvents, offered to handover the flat to the Official Assignee for satisfying claims against the insolvents. On this statement, which was accepted by this Court, the Official Assignee was directed to take necessary steps in the matter. It appears that various orders were passed from time to time in the Notice of Motion of Avinash. Finally, by an order dated 3 February 2015, the Notice of Motion was disposed of as infructuous, since the reliefs prayed for therein had already been granted in earlier orders passed by this Court. It appears that in pursuance of the orders passed by this Court, whilst symbolic possession of Flat No. C -624 was taken over by the Official Assignee, no steps were taken in respect of Flat No. B - 295. After she came to know about these orders and steps sought to be taken by the Official Assignee in respect of the two flats described above, the Applicant has taken out the present Notice of Motion seeking directions against the Official Assignee not to proceed further in respect of these properties as they belong to and are possessed by the Applicant. The case of the Applicant insofar as Flat No. B -295 is concerned is that this flat was initially allotted by Delhi Development Authority ("DDA") to Bansi Jaising on 13 March 1987. Pursuant to this allotment, Bansi Jaising was put in possession of the flat. On 12 September 1990, an agreement for sale was executed between Bansi and the predecessor -in -title of the Applicant, Mr. O.P. Komar (father of the Applicant for sale of the flat to the latter). A general power of attorney executed by Bansi on the same date in favour of O.P. Komar. DDA, thereafter, issued a show cause notice to Bansi for cancellation of his allotment and even issued a letter dated 21 May 1991 cancelling the allotment. Subsequent to this cancellation, proceedings were initiated by DDA against Bansi under the provisions of the Public Properties (Eviction of Unauthorized Occupants) Act, 1971. The proceedings appear to have been dropped by DDA subsequently. In the meantime, however, on or about 9 April 1997, a deed of conveyance was executed by DDA in respect of the flat in favour of O.P. Komar. It is claimed that O.P. Komar was put in possession of the subject flat. O.P. Komar, thereafter, executed a will on 11 August 1997 bequeathing the subject flat to the Applicant. A suit was filed by O.P. Komar against Bansi before the High Court of Delhi seeking a permanent injunction against Bansi restraining him from disturbing the possession of the Plaintiff and his family members. This suit was transferred to the Court of Additional District Judge, Delhi. By an order dated 16 December 2004, learned Additional District Judge, Delhi directed Bansi not to interfere with the possession of the Applicant in respect of the subject flat. In the meantime, the present Insolvency Petition was filed against Bansi Jaising and others and the orders of adjudication were passed. On these facts, it is claimed that the Applicant not only has a title to the subject flat through DDA, but also has been in possession of the flat. As far as flat No. C - 624 is concerned, the case of the Applicant is that the owner of this flat, Ms Ratna Jaising, had in or around early 1982 applied to DDA for allotment of the flat. Ms Ratna was, however, unable to make the required payment for the flat. Ms Ratna thereupon approached the Applicant for making the payment to DDA for and on her behalf. The Applicant accepted the request and made payment of Rs. 2.89 lacs to DDA for the subject flat. As Ms Ratna could not make any arrangements to return the payments made by the Applicant and her family members for purchase of flat, Ms Ratna offered the possession of the flat to the Applicant on assurance that she would execute all necessary documents for transfer of the flat to the Applicant or any of his family members in the records of DDA. It is submitted that on this assurance, most of the original documents relating to allotment of the subject flat were deposited by Ms Ratna and her husband Bansi with the Applicant. The Applicant has, accordingly been in possession of the flat through himself and his family members since 1990. Particularly, it is the Applicant's son Kumar with his wife and children who is said to be residing in the subject flat. The Applicant relies upon several documents including a letter addressed by Ratna as far back as on 1 August 1991 to DDA authorizing Kumar (Applicant's son) to go ahead and get electrical work done and documents pertaining to the gas connection installed by Kumar along with statements of refilling of gas cylinder between 1994 and 2014. The Applicant also relies upon a letter issued by Ratna giving her NOC for issuance of ration card and the ration card issued to Kumar at the address of the subject flat. The Applicant also relies upon further documentary evidence including voter identity card issued in favour of Kumar at the address of the subject flat, the mobile connection availed of by Kumar on the address of the subject flat, as also water and electricity bills, property tax bills issued by statutory authorities in respect of subject flat, the bank statement and other material in support of the Applicant's case that these bills have been paid from time to time by Kumar. On these facts, it is claimed that the Applicant and her family members are entitled to claim documents of conveyance in respect of the subject flat from the successor -in -title of Ms Ratna and at any rate, are in possession of the subject flat ever since 1991.
(3.) THE record of the case, which has partly been referred to above, clearly indicates that there is adequate material before the Court to show that the Applicant has documents of title in respect of Flat No. B -295 and also to show the settled possession of the Applicant and his family members in respect of Flat No. C -624. As against this position, it is claimed on behalf of the insolvents that Flat No. B -295 belongs to the insolvent Bansi and Flat No. C - 624 belongs to Ms Monisha, wife of insolvent Ravi, who has made the same available to the Official Assignee for disposal in accordance with law with a view to discharge the insolvents' debts. It is suggested that on the basis of the application of the insolvent Avinash, this Court is expected to enter upon a trial with respect to the title of the insolvents / their well wishers to the subject properties. No doubt under Section 7 of the Presidency Towns Insolvency Act, 1909, the Insolvency Court has full powers to decide all questions whatsoever, whether of law or fact, which arise in the course of the insolvency within the cognizance of the Court, or which the Court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of the property of the insolvent. Section 7, however, read with Section 36 of the Presidency Township Insolvency Act, does not envisage any trial of contested questions of title as between the Official Assignee and a stranger to insolvency. In fact, the proviso to Section 7 read with Section 36(1) of the Insolvency Act indicates that though the Court has power to decide a question of title and order delivery of the property of the insolvent in a fundamental sense, the Court can do so if the property is in possession of a third party only after such third party admits that he is in possession of the property belonging to the insolvent. In the absence of such admission, the Insolvency Court cannot enter upon a controversy concerning either the title or possession of the property as between the insolvent, who is represented by the Official Assignee, and the third party stranger.;