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TMI Blog2015 (12) TMI 1382X X X X Extracts X X X X X X X X Extracts X X X X ..... the Recovery Officer of the Debt Recovery Tribunal, Patna. By the said order the Recovery Officer rejecting the objections as filed by the writ petitioner-appellant, directed for auction sale of its properties holding that properties purchased by the writ petitioner-appellant from Industrial Corporation Private Limited were properties which were mortgaged and charged from before. The learned Single Judge by his judgment and order dated 04.03.2010, passed in C.W.J.C. No. 7184 of 2009, held that the properties were sold by I.C.P.L. to the writ petitioner-appellant after institution of the Money Suit for recovery of money based on substituting charge created on the properties. The learned Single Judge held that in such a situation sale of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02.1988 Money Suit No. 09 of 1988 was instituted for recovery of about Rs. 23,00,000/-. The sale deeds as between I.C.P.L. and B.D.L. were executed, two in number, on 11.07.1988 and 14.07.1988 and were duly registered. On these facts, he submits that there being an agreement for sale long preceeding the Suit, the sale deed executed after the suit was instituted, sale would not be hit by the doctrine of lis pendis under Section 52 of the Transfer of Property Act. He has placed reliance on the judgment of the Apex Court reported in case of 1990 (3) SCC page 291 (Vannarakkal Kallalathil Sreedharan Vrs. Chendramallth Belakrishnan & Another). On the strength of the aforesaid decision, he submits that there being an obligation to sell by virtue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain created on the properties and on 20.08.1987 charges were duly registered in terms of the Company Act. As noted above, there were substantial defaults on all corners. It now appears that on 16.11.1987 Bihar Distillery Limited was incorporated and registered under the provisions of the Company Act, 1956. Its Managing Director later was Mr. Viren Pandey, who was also the Managing Director-cum-Chairman, I.C.P.L. at that time. On 28.11.1987 an agreement was drawn up between I.C.P.L and B.D.L. for sale of the Distillery unit of I.C.P.L. There being substantial defaults on or about 06.02.1988, the Central Bank of India recalled all dues and liabilities from I.C.P.L. This defaulted their obligation under the compromise mortgage decree and ultim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer clearly held that charge on the properties had been created much prior to the agreement for sale. The entire properties had already been mortgaged first and then additional charge was also created. All this was long before the agreement for sale. Thus the agreement for sale is of no consequence and the sale deed after the institution of Money Suit cannot in any way, affect or prejudicially affect the right of the Bank to recover the dues which were secured to the properties of I.C.P.L. as subsequently transferred to B.D.L. We are in agreement with the view. It is on these facts that we thinks that the Apex Court judgment as relied upon is not applicable. There was pre-existing charge on the properties prior to agreement for sale tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... barred by limitation is provided under Rule 68B aforesaid. We are not impressed. As per the writ petitioner/appellant before us the attachment was made in the year 2009 when the writ petition was filed. The writ petition had been dismissed, there is an appeal pending. It is the attachment order that was challenged before this Court. If we read Rule 68B which was essentially made for recovery of tax assessment then sale had to take place within three years of attachment. This rule is applicable to proceeding before D.R.T. as far as possible. In 2009 the writ petition itself being filed and the attachment being of the year 2009, we see no ground how it could be submitted that the proceedings to sell the properties could be beyond time. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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