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2015 (12) TMI 1382

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..... 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 next submitted that only there was the first attachment which was made on 23.08.2001 soon after the proceedings had been received from Civil Court and the objections were rejected. Again we could not agree. The proceedings would show that one after another objections of different natures were taken objecting to st .....

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..... d 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 properties after the suit has been instituted would defeat the right of the creditor i.e. the plaintiff in the Money Suit, which is the Central Bank of India. The learned Single Judge further held that the order of the Recovery Officer was passed on 21.06.2006, rejecting the objections of the writ petitioner-appellants, but the writ petitioner-appellant did not challenge the same either in the statutory appeal that was available to it bef .....

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..... 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 of the agreement to sell aforesaid prior to the suit, subsequent execution of sale deed, cannot be avoided much less on the principles of lis pendis, We are unable to agree. In order to decide this, there are certain other facts which have to be taken into account. I.C.P.L. is an old Private Limited Company incorporated under the Companies Act, 1956. It basically had a Sugar Mill and extensive lands for the said purpose. I .....

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..... . 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 ultimately on 29.02.1988 Execution Case No. 03 of 1988 was filed in the Court of learned Sub-Judge-III, Siwan for executing the compromise decree and on the same date Money Suit No. 09 of 1988 was also instituted for recovery of money advanced for which charges had already been created on the properties. Notwithstanding, this on 14.07.1988 I.C.P.L. vide two registered sale deeds as noticed earlier, sold 124 bighas lands and in du .....

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..... k 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 that makes all the difference. The properties as received by B.D.L. were mortgaged properties and charge had been created. Thus, the obligation to sell as created by the agreement between the I.C.P.L. and B.D.L. could not take precedent over pre-existing mortgage and charge. Thus, the steps taken by the Recovery Officer to realize the dues of I.C.P.L. from the properties which now stood transferred to Bihar Distillery Limited ( .....

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..... 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 next submitted that only there was the first attachment which was made on 23.08.2001 soon after the proceedings had been received from Civil Court and the objections were rejected. Again we could not agree. The proceedings would show that one after another objections of different natures were taken objecting to steps being taken for sale of the properties, naturally the Recovery Officer had to decide the issue. Validity .....

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