Sri Noor Mohammad vs The Life Insurance Corporation and Sri Prakash Melode

A.S. Bopanna, J.—The petitioner is before this Court assailing the possession notice dated 09.02.2013 published in the newspaper by the first respondent seeking to take possession of the petition schedule premises. The petitioner who has assailed the said notice would contend that he has entered into an agreement of sale with the second respondent whereunder the property was agreed to be sold in favour of the petitioner. In that regard, the petitioner has already instituted a suit in O.S. No. 4/2007 whereunder the petitioner herein is seeking for specific performance of the agreements dated 28.04.2005 and 12.05.2006.

The second respondent herein is opposing the said suit and on the other hand, the second respondent has filed another suit in O.S. No. 179/2008 against the petitioner herein seeking possession of the petition schedule property. The said suits are said to be clubbed and are being tried together. In the meanwhile, since the second respondent had availed certain financial benefits from the first respondent and had created charge in respect of the petition schedule property, they had proceeded further to invoke the provisions of the SARFAESI Act and had sought to take possession of the premises regarding which the second respondent had created charge in favour of the first respondent and to which the petitioner herein claims right under the Agreement of sale contending that he is in possession of the property. It is in that circumstance, the petitioner is before this Court.

When the petition was taken up for consideration on the last date of hearing, learned counsel for the petitioner, on instructions from the petitioner, had submitted that the petitioner is prepared to pay the outstanding amount which is due from the second respondent to the first respondent towards the financial transactions and the petitioner is prepared to have the same adjudicated in the civil suit and thereafter seek for appropriate relief against the second respondent in the said suit. The said action of the petitioner is to protect his possession and thereafter to proceed with the matter against the second respondent in the pending proceedings before the Civil Court.

In view of the same, the first respondent has indicated that a sum of Rs. 29,88,034.94/- (Rupees twenty nine lakhs eighty eight thousand and thirty four and paisa ninety four only) is due from the second respondent to the first respondent. A copy of the calculation sheet has been furnished to the learned counsel for the petitioner. Learned counsel for the petitioner on instructions, would submit that he is prepared to pay the said amount to the first respondent subject to three monthly installments being granted to the petitioner. Learned counsel for the first respondent would agree to the same.

Accordingly, the petitioner is granted liberty to deposit the said sum which is due in three installments, i.e., before 31.12.2013. In that view of the matter, the first respondent shall keep in abeyance the possession notice dated 09.02.2013 till the said period. If the said amount is paid by the petitioner, no further action will be taken by the first respondent and the documents relating to the property which is available with the first respondent would be made over to the Civil Court, if appropriate orders are passed by the Civil Court calling for the said documents. Thereafter, the petitioner and the second respondent would abide by the ultimate orders that would be passed by the Civil Court and the amount paid by the petitioner would remain subject to result of the litigation between the petitioner and the second respondent before the Civil Court for the purpose of adjustment amongst themselves. Needless to mention that if the petitioner does not deposit the amount within the period as agreed herein, the first respondent would thereafter be entitled to proceed further pursuant to the notice dated 09.02.2013. All contentions relating to the right of the petitioner in respect of the petition schedule property and the defence, if any by the second respondent herein are left open to be agitated before the Court below and any of the observations made herein would not prejudice the case of the rival parties before the Civil Court. Since this Court has left open the dispute to be raised before the Civil Court, in view of the present demand and the payment made by the petitioner if any amendments are required in the plaint it would be open for the parties to seek such relief before the Court below which would be considered by the Court below as per law.

In terms of the above, the petition stands disposed of.