BELLEY REALTORS PVT LTD Vs. ORIENTAL BANK OF COMMERCE

JUDGEMENT

(1.) THIS Misc. appeal is filed by the appellants/original objectors Belley Realtors Pvt. Ltd. and Another being aggrieved by the order dated 18.9.2003 passed by the learned Presiding Officer of the Debts Recovery Tribunal-II, Mumbai in Appeal No. 34/2002. The said appeal was filed against order of the Recovery Officer dated 5.12.2002 in Recovery Proceeding No. 39/2002. By the said order, the Recovery Officer rejected the application of the appellants dated 4.9.2002 (Exhibit 34) in which they had prayed that the attachment ordered by the Recovery Officer with respect to the property namely 4th floor of Wembley Building, Nehru Road, Vile Parle (West), Mumbai be lifted and that warrant of attachment be quashed. When the appeal was filed against that order passed by the Recovery Officer to the learned Presiding Officer under Section 30 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the learned Presiding Officer partly allowed the said appeal and substituted the order of the Recovery Officer by giving declaration that mortgage of the 4th floor of Wembley Building, Nehru Road, Vile Parle (West), Mumbai standing on plot No. 300 in favour of the respondent No. 1 Bank shall be subject to the result as per final Order of the High Court of Judicature at Bombay in (i) Company Petition No. 294/1997 filed by the appellant No. 2 namely Pioneer Sales Agencies Pvt. Ltd. and Suit No. 922/1997 filed by the appellant No. 2 Pioneer Sales Agencies Pvt. Ltd. and against the respondent Nos. 2 to 4 namely M/s. Olympus Superstructures Pvt. Ltd., Mr. Dinky Macarena's and Smt. Bela Mascarenhas (original defendants). Being aggrieved, the present appeal is filed in this Appellate Tribunal.

(2.) Few facts, which are required to be stated to understand the controversy in this appeal are as follows:

(3.) I have heard Mr. K.I. Shah for the appellants and Mr. Pandit for the respondent Bank. I have gone through the voluminous proceedings including the proceedings of Suit No. 922 of 1997, Company Petition No. 291 of 1997 and various orders passed therein. I have also gone through the proceedings of O.A. No. 3637 of 2000, so also recovery proceedings bearing R.P. No. 39 of 2002, and in my opinion, the Recovery Officer as well as the learned Presiding Officer, both committed error in passing the impugned orders.