Disposed

Surya Morphy Eichards Ltd. v. Bank of India

Bombay HC22 Feb 2005CHS/1144/2003

Case brief

AI extract

What is this about?

Disposing of an execution application in arbitration proceedings, the Court held that a debt recovery officer empowered by Section 34 of the RDBEF Act 1993 can execute a recovery certificate in priority to an unsecured creditor's decree. The Court directed the recovery officer to determine the validity of the alleged equitable mortgage.

What did the court decide?

Chamber summons disposed of with direction to Recovery Officer to determine validity of mortgage in recovery proceedings.

Surya Morphy Eichards Ltd. Vs Bank of India — Execution and Attachment | Bombay HC (2005)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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O.O.C.J.

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CHAMBER SUMMONS NO.1144 OF 2003
IN
EXECUTION APPLICATION NO. 254 OF 2003
IN
ARBITRATION PETITION NO. 159 OF 2003

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 Eureka Forbes Ltd .... Plaintiff
 v/s.
 Surya Morphy Richards Ltd .... Defendant
 AND
 Bank of India .... Applicant

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 Janak Dwarkadas with Rahul Chitnis i/b. Shreerang
 Shrimani for the plaintiffs.

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 Leon Samuel i/b. M/s. Advani and Co. for the defds.
 S. Shetye with Mr. K.K. Shroff and Ms. Swati
 Deshpande i/b. M.S. Budhanwalla and co. for the
 applicants.

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 CORAM: S.U. KAMDAR, J.

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 DATE : 22ND FEBRUARY, 2005.

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P.C. :

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 1. In respect of the properties under attachment,

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 the applicant bank is claiming a charge by virtue of
 equitable mortgage in their favour. The applicant
 bank is also claiming that there is a recovery
 certificate issued by the DRT under the provisions of
 the Recovery of Debts Due to Banks and Financial
 Institutions Act, 1993. In view of the judgment in

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 the case of Canara Bank vs. Allahabad Bank reported

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in AIR 2000 SC 1535 that by virtue of section 34 of

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 the Act the debt recovery officer is empowered to

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 proceed and execute the said recovery certificate in
 priority to the decree passed by this Court. In the
 present case the decree holder is an unsecured
 creditor and thus not entitled to proceed with
 execution of decree in preference to the recovery
 certificate issued by DRT. Thus the execution
 proceedings in respect of the said properties will
 proceed before the recovery officer. The plaintiff
 herein who are unsecured creditors are claiming that

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 the said properties belongs to the defendants and
 that they are entitled to execute the decree as
 against the said properties. They are also claiming
 that there is no valid mortgage in favour of the
 applicant bank. The plaintiffs are permitted to
 raise all these issues before the recovery officer.
 The applicant bank makes a statement that they are
 not objecting to the applicant raising all these
 issues before the recovery officer and/or Debt
 Recovery Tribunal and that the recovery officer
 and/or Debt Recovery Tribunal should determine the
 same in accordance with law. The DRT and or the
 Recovery Officer is directed to determine whether

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 there is a valid mortgage executed or not before the
 competent authority in the said recovery proceedings.
 With the aforesaid directions the said chamber
 summons is disposed off. There shall be no order as
 to costs.

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 sd/-

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 **********

Surya Morphy Eichards Ltd. v. Bank of India

Case brief

What is this about?

What did the court decide?

Surya Morphy Eichards Ltd. v. Bank of India

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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Coram

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