Development Agreement executed by the leaseholders after attachment is void

In law, if the attachment is operating in respect of any property, alienation of rights therein is void. Section 64 of the Code of Civil Procedure makes it amply clear. Considering the fact that the Development Agreement executed by the leaseholders, Prakash Shendge and Vilas Shendge, in favour of S.V. Developers in respect of Page 25 of 44

Jvs. WP.1137.2004 said plots, after the attachment thereof, being in the nature of alienation of the species of rights of the leaseholders, is hit by the principle underlying Section 64 of the Code and, therefore, void.

Bombay High Court

Sangli Sahakari Bank Ltd vs 5) M/S. S. V. Developers on 11 June, 2012

Bench: A.M. Khanwilkar, S. S. Shinde

3. We propose to dispose of all the three Writ Petitions by this common judgment. For, the issues raised in these Writ Petitions are over lapping.

4. The first set of Writ Petitions (WP/1137/2004 and WP/1138/2004) filed by the Petitioner Bank is for revocation of permission granted by Pimpri Chinchwad New Town Development Authority (for short "PCNTDA") in favour of Prakash Shivajirao Shendge (Respondent No. 4 in Writ Petition No. 1137/2004, hereinafter referred to as "Prakash Shendge") and Vilas Dhondiram Shendge (Respondent No. 4 in Writ Petition No. 1138/2004, hereinafter referred to as "Vilas Shendge") to develop Plot No. 12 and Plot No. 13 respectively, and to pass an order against PCNTDA to permit the Recovery Officer of the Bank to sell the said plots, as a follow up measure, pursuant to the attachment of the said plots by the Recovery Officer, in connection with Recovery Certificates issued against the said persons, on 13 th September, 2002 and 25th September, 2002 respectively, under Section 101 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as "Said Act"). The second set of Writ Petition, being Writ Petition No. 1021/2011, is also filed by the Petitioner Bank for quashing and setting aside order dated 24 th Page 6 of 44
Jvs. WP.1137.2004 December, 2010 passed by the Divisional Joint Registrar, in connection with shop Nos. 32 to 39 in Building "City Pride" constructed upon the said plot Nos. 12 and 13, in spite of order of attachment of the said plots was subsisting. The said shop numbers 32 to 39 have been attached by separate attachment order dated 17th February, 2010 and as a follow up measure to the said attachment, the Recovery Officer wanted to proceed with the auction sale of the said plots. That auction was challenged by the Respondent Nos. 3 to 5 (in Writ Petition No. 1021/2011). The said challenge has been upheld by the Divisional Joint Registrar in Revision Application, which decision is subject matter of challenge in Writ Petition No. 1021/2011.

5. We shall now advert to the relevant facts common to all these Petitions. On 8th February, 1996, deed of lease was executed by PCNTDA in favour of Prakash Shendge in respect of Plot No. 12 admeasuring 843.6 square meters and designated as "Sub District Center" meant for commercial development in Sector 25, village Akurdi, Taluka - Haveli, District - Pune for a period of 99 years. The lease deed was registered with the Sub Registrar, Taluka - Haveli, District - Pune. Another lease deed was executed by PCNTDA in favour of Vilas Shendge on the same terms in respect of Plot No. 13, Page 7 of 44
Jvs. WP.1137.2004 admeasuring 882.5 square meters, designated as "Sub District Center" meant for commercial development in the same area. Even this lease deed is registered with the Sub Registrar, Taluka - Haveli, Dist, Pune.
6. One M/s. Shivalik Transport Company, Respondent No. 3 in Writ Petition No. 1138/2004 and Respondent No. 6 in Writ Petition No. 1021/2011 (hereinafter referred to as "Shivalik"), secured loan from the Petitioner Bank for a sum of ` 65 lakhs. The said Shivalik is a registered partnership firm consisting of partners Gopal K. Agarwal and Shankar Bapu Dudhal. At the relevant time, they were members of the Petitioner Bank. The proximity of these two persons with Shendge family is evident from the fact that Suresh Shendge and Shri. Vilas Shendge (leaseholder of plot No.13) stood guarantors for the said loan transaction.

7. The Bank also provided loan to Accrate Exim Private Limited, Respondent No. 3 in Writ Petition No. 1137/2004 and Respondent No. 7 in Writ Petition No. 1021/2011 (hereinafter referred to as "Accrate"), in the sum of ` 5 crores. The said Accrate is a registered Private Limited Company. Two of its directors, Prakash Shendge (leaseholder of plot no.12) and Prakash Menon were members Page 8 of 44
Jvs. WP.1137.2004 of the Petitioner Bank. Notably, the repayment of the said loan was guaranteed by Prakash Shendge and Jaisingh Dhondiram Shendge. (cousin brother of Prakash Shendge).

8. Here it may be useful to advert to the genealogy of Shendge family. The same reads thus:
Krishnaji Shendge
(deceased)
|
______________________________________
| | Shivajirao Krishnaji Shendge Dhondiram Krishnaji Shendge (son) [deceased on 23.12.2002] (son) | | _______________________________ _____________ | | | | | | | Parvatibai Prakash Suresh Ramesh Sandeep Vilasrao Jaisingh (widow) (son) (son) (son) (son) (son) (son) |
__________________________
| | |
Suvarna Raj Vijay (wife) (son) (son)
9. It may be also useful to note the association and connections of the members of Shendge family at the relevant time. The above named Jaisingh Shendge was director of the Petitioner Bank from 1993 to 2002 and Chairman of the Petitioner Bank from 1993 to 1995 and from 1996 to 1998. Father of Prakash Shendge, i.e. Page 9 of 44
Jvs. WP.1137.2004 Shivajirao Krishnaji Shendge was MLA and Minister of Development of Milk and Transportation, in the Government of Maharashtra between 1989 to 1994. Prakash Shendge himself was MLC from 2005 to 2011 and is sitting MLA for a period of 2011 to 2016. Real brother of Prakash Shendge, i.e. Ramesh Shendge is a sitting MLC in the State for a period between 2010 to 2016. This genealogy and the influential position wielded by the members of the Shendge family inevitably helped M/s. Shivalik and M/s. Accrate to obtain loan of ` 65 lakhs and ` 5 crores respectively from the Petitioner Bank. In fact, Suresh Shendge and Vilas Shendge stood guarantors for the said loan transaction between Shivalik and the Petitioner Bank; and Prakash Shendge and Jaisingh Shendge stood guarantors for the loan transaction between the Petitioner Bank and Accrate.
10. The said Shivalik and Accrate committed default in repayment of loan. As a result, the Petitioner Bank had no option but to initiate proceedings for issuance of Recovery Certificate under Section 101 of the said Act. The Assistant Registrar issued Recovery Certificate on 13th September, 2002 for recovery of ` 6,43,10,371/- along with further interest at the rate of 21% per annum, in favour of the Petitioner Bank to be recovered jointly and severally from said Page 10 of 44
Jvs. WP.1137.2004 Accrate, its directors and guarantors. Another Recovery Certificate was issued by the Assistant Registrar on 25th September, 2002 under Section 101 of the said Act for recovery of ` 1,06,39,401/- along with further interest at the rate of 22% per annum, to be paid to the Petitioner Bank, jointly and severally by said Shivalik, its partners and guarantors. As no response was received, the Recovery and Sale Officer of the Petitioner bank (hereinafter referred to as "Recovery Officer") proceeded to attach the two plots referred to above, leased out to Prakash Shendge and Vilas Shendge, respectively, on 11 th February, 2003. On the same day, the Recovery Officer sought consent from PCNTDA for sale of the said plot Nos. 12 and 13.

11. In spite of the order of attachment and steps taken by the Recovery Officer towards the auction sale of the two plots, said Prakash Shendge and Vilas Shendge (leaseholders of the respective plots) executed development agreements to develop the said plots in favour of M/s. S. V Developers, Respondent No. 5 in Writ Petition No. .
1137/2004 and Writ Petition No. 1138/2004 respectively (hereinafter referred to as S. V. Developers). The said development agreements were registered on 3rd March, 2003 with the Sub Registrar, Taluka - Haveli. Notably, S. V Developers is a registered partnership firm .
Page 11 of 44
Jvs. WP.1137.2004 comprising of partners-Vishwanath Mahavir Varma, Sitaram Mahavir Varma, Suresh Shivaji Shendge (real brother of Prakash Shendge) and Suvarna Suresh Shendge. This partnership firm was registered on 25 th April, 2003 and stated to have commenced its business from 1 st February, 2003.

12. From the genealogy of Shendge Family, reproduced above, it is seen that Suvarna Shendge is the wife of Suresh Shendge and sister-in-law of Prakash Shendge and Vilas Shendge. Suresh Shendge is the real brother of Prakash Shendge and cousin brother of Vilas Shendge.

13. Whilst the request of Recovery Officer of the Petitioner Bank, vide letter dated 11th February, 2003 was pending with PCNTDA for grant of consent to auction the two plots, i.e. plot No. 12 and plot No. 13, the said S. V. Developers, claiming to have acquired interest in the said plots, by virtue of development agreements dated 3 rd March, 2003, vide application dated 31st March, 2003 requested PCNTDA to grant them permission to amalgamate the two plots to enable them to develop the same.
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14. Soon thereafter, vide letter dated 3rd April, 2003, PCNTDA informed the Recovery Officer that the Bank cannot transfer the two plots being plot No. 12 and plot No. 13 to third party by auction sale.
15. The PCNTDA then issued the Commencement Certificate in favour of Prakash Shendge and Vilas Shendge on 4th June, 2003, permitting them to construct building on the said two plots admeasuring 1725.703 square meters, as per the sanctioned plan.
16. Realising that the order of attachment of two plots, issued in connection with the Recovery Certificates dated 13th September, 2002 and 25th September, 2002, was likely to be defeated by the leaseholders - Prakash Shendge and Vilas Shendge - by developing the attached plots on the basis of the development permission granted in their favour, the Petitioner Bank immediately rushed to this Court on 13th January, 2004, by way of first set of writ petitions, being Writ Petition Nos. 1137/2004 and Writ Petition No. 1138/2004. The Petitioner Bank prayed for setting aside the permission given by PCNTDA to Prakash Shendge and Vilas Shendge to develop the two plots and for further direction against PCNTDA to permit the Recovery Officer to sell the said two plots for realising the amount recoverable Page 13 of 44
Jvs. WP.1137.2004 jointly and severally from them, in connection with the two Recovery Certificates.

17. The Division Bench of this Court, on 9th February, 2004, granted Ad-interim relief injuncting Prakash and Vilas Shendge and S. V Developers to dispose of, sale and/or alienate, by way of sale or .
transfer, the said two plots and/or any construction put up thereon and to be carried out during the pendency of the Petition. The first set of Writ Petitions, however, were dismissed on 31 st August, 2004 on the ground that it involved disputed question of facts.
18. Thereafter, S. V Developers entered into Articles of .
Agreement on 4th January, 2005, agreeing to sell shop Nos. 32 to 39 admeasuring 163.32 square meters, along with attached terrace admeasuring 42.23 square meters for consideration of ` 30 lakhs only, in the building named "City Pride" constructed on Plot Nos. 12 and 13, in favour of (i) Mrs. Suvarna Suresh Shendge; (ii) Vijay Suresh Shendge (minor) and (iii) Raj Suresh Shendge (minor) (Respondent Nos. 3, 5 and 4 respectively in Writ Petition No. 1021/2011 hereinafter referred to as "Suvarna Shendge", "Vijay Shendge" and "Raj Shendge"). As aforesaid, Suvarna Shendge is wife of Suresh Shendge and Vijay Page 14 of 44
Jvs. WP.1137.2004 Shendge and Raj Shendge are minor sons of Suvarna Shendge and Suresh Shendge.

19. Against the decision in the first set of Petitions, dated 31 st August, 2004, the Petitioner Bank filed Special Leave Petitions before the Apex Court, being SLP (Civil) Nos. 4964/2005 and 4965/2005 on 25th February, 2005. The Respondents in the said Appeals including PCNTDA, Prakash Shendge, Vilas Shendge and S. V. Developers were restrained by the Apex Court from alienating, encumbering with the property in question.

20. The Recovery Officer of the Petitioner Bank then proceeded to issue order of attachment on 17 th February, 2010 under Section 156 of the said Act read with Rule 107 of the Maharashtra Co-operative Societies Rules, 1961 (hereinafter referred to as the "said Rules"), in respect of the said shop Nos. 32 to 39 in building "City Pride". After issuance of attachment order in respect of the said shops, the Recovery Officer issued notice for public auction of the said shops on 27 th July, 2010. The said Suvarna Shendge, Vijay Shendge and Raj Shendge filed Application No. 3/2010 under Rule 107(19) of the said Rules before the Recovery Officer for revocation of the said auction notice. The Page 15 of 44
Jvs. WP.1137.2004 Recovery Officer, by order dated 25 th August, 2010, dismissed the said Application. Against this decision, the said Applicants, preferred Revision Application before the Divisional Joint Registrar, for quashing and setting aside the order dated 25th August, 2010, passed by the Recovery Officer, as also for revocation of the auction notice issued by him dated 27th July, 2010.

21. During the pendency of the said Application, the Appeal, preferred by the Petitioner Bank, before the Apex Court, against the decision in the first set of Writ Petition Nos. 1137/2004 and 1138/2004, dated 31st August, 2004, was decided and the Apex Court allowed the said Appeal vide Judgment and Order dated 16 th November, 2010. The Apex Court reversed the opinion of the Division Bench of this court that the two Writ Petitions, filed by the Petitioner Bank, involve disputed questions of fact. The Apex Court, therefore, remanded the said two Writ Petitions to this Court for being decided on merits. Accordingly, the first set of Writ Petitions, filed by the Petitioner bank, have been restored to the file to its original numbers and proceeded herewith.
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22. After restoration of the first set of two Writ Petitions, filed by the Petitioner Bank, the Divisional Joint Registrar allowed the Revision application No. 269/2010, filed by Suvarna Shendge, Vijay Shendge and Raj Shendge. The order passed by the Recovery Officer, dated 25th August, 2010 was quashed and set aside. Against this decision, the Petitioner Bank has now filed third Writ Petition, being Writ Petition No. 1021/2011. As the three Writ Petitions involve common and over lapping issues, it was decided to hear all the three Writ Petitions together.

23. The Petitioner Bank sought leave to amend the first set of Writ Petitions to incorporate further facts and subsequent developments and for further reliefs. The Applications for leave to amend the said Writ Petitions were allowed on 7th June, 2011 permitting the Petitioner Bank to amend the Writ Petitions. Accordingly, first set of Writ Petitions have been amended by the Petitioner Bank. The Petitioner Bank has also filed Civil Applications in the pending first set of Writ Petitions being Civil Application No. 1740/2011 and 1741/2011 respectively, praying for directions against Accrate Exim, Prakash Shendge and S.V.Developers in Writ Petition No. 1137/2004 and Shivalik, Vilas Shendge and S. V Developers in the second Writ Petition No. .
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Jvs. WP.1137.2004 1138/2004 to deposit amount referred to in the respective Recovery Certificates and, pending the Writ Petitions, allow the Petitioner Bank to auction the said shops. Even these applications are being heard together, with the first set of Writ Petitions.

24. The principal argument of the petitioner-Bank is that, since the order of attachment was operating in respect of the said plots on and from 11th February, 2003, in law, it was not open to the leaseholders to create any third party right, title or interest therein. For that reason, the Development Agreements executed on 3 rd March, 2003 in favour of S.V. Developers for development, construction and sale of premises was nullity and hit by Section 64 of the Code of Civil Procedure. Since the said transaction was nullity, S.V. Developers had no right whatsoever in law to develop the said plots or construct buildings thereon, much less to sell premises in the constructed building. For the same reason, the Articles of Agreement executed by S.V. Developers on 4th January, 2005 will not create any right in favour of Suvarna Shendge, Raj shendge and Vijay Shendge in respect of Shop Nos. 32 to 39 in the building "City Pride" constructed on the said plots. All these transactions are void and will have to be treated as nullity, so as to enable the petitioner-Bank to take the order of attachment to its Page 18 of 44
Jvs. WP.1137.2004 logical end for recovery of the amount payable under the two Recovery Certificates by the principal borrowers and the guarantors, jointly and severally, both in respect of the two plots and/or eight shops as the case may be. Further, the said transactions under the Development Agreements dated 3rd March, 2003 and the Articles of Agreements dated 4th January, 2005 are fraudulent transfers effected with a view to defeat and delay the recovery of the amount under the Recovery Certificates from the principal borrowers and the guarantors. The transferee under the respective transactions cannot claim that the same were in good faith. Inasmuch as, the Development Agreements dated 3rd March, 2003 in respect of said plots bearing Plot Nos. 12 and 13, respectively, were executed in favour of S.V Developers. Suresh .
Shendge and Suvarna Shendge are the partners of the said registered partnership firm. The said partnership firm was registered only on 25 th April, 2003 claiming to have commenced its business from 1 st February, 2003. The two plots were attached in terms of the order passed by the Recovery Officer dated 11th February, 2003.

25. Admittedly, Suresh Shendge and Suvarna Shendge are closely related to Prakash Shendge and part of the same family. Suresh Shendge and Prakash Shendge are real brothers and Vilas Shendge is Page 19 of 44
Jvs. WP.1137.2004 their cousin. The Articles of Agreement dated 4 th January, 2005 are in favour of Suvarna Shendge, Vijay Shendge (minor) and Raj Shendge (minor). Vijay Shendge and Raj Shendge were the minor sons of Suresh Shendge and Suvarna Shendge. Besides, the shop Nos. 32 to 39 admeasuring 163.32 square metres along with attached terrace of 42.23 square metres were transferred in favour of Suvarna Shendge, Vijay Shendge and Raj Shendge for a measly consideration of ` 30 lakhs only. These circular transactions were entered for defeating and delaying the recovery of amount paid under the two Recovery Certificates.

26. It is also contended that Jaisingh Shendge, Vijay Shendge, Prakash Shendge and Ramesh Shendge form the same family. They wielded enormous political influence inlcuding on PCNTDA, being M.L.As., M.L.C. and Minister during the relevant period. Jaisingh Shendge was not only the Director of the petitioner-Bank, but also Chairman of the bank. The members of Shendge Family singularly and collectively ensured that the petitioner-Bank does not get permission from PCNTDA to conduct auction-sale of the attached plots; and, at the same time, proceeded to execute the Development Agreements in respect of the said plots in favour of S.V. Developers in which Suresh Page 20 of 44
Jvs. WP.1137.2004 Shendge and Suvarna Shendge were partners and in control of the situation. Thus, by no standard, the transfer of the two plots in favour of S.V Developers or, for that matter, transfer of shops in favor of .
Suvarna, Vijay and Raj can be said to be in good faith and for due consideration (prevailing market price of the said shops). Accordingly, it is contended that giving development rights to S.V. Developers by Prakash Shendge and Vilas Shendge is not in good faith and for due consideration. The petitioner-Bank, therefore, asserts that the said transactions will have to be ignored, being void, not only because of transfer made during the subsistence of order of attachment, but also because the same are fraudulent and not in good faith and for due consideration. The petitioner-Bank is, therefore, entitled to proceed against the concerned property for recovery of its dues in connection with the two Recovery Certificates. For that, direction should be issued to PCNTDA to permit public auction of the said plots by setting aside the decision of PCNTDA to allow amalgamation and development of the said plots, as also refusing to permit the petitioner-Bank to conduct public auction thereof. According to the petitioner-Bank, the transactions in respect of plots and the premises / shops in the building constructed thereon are against the order of injunction passed by the Court and nullity even on that count.
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27. The argument of the contesting respondents was in four groups. The first is by S.V. Developers, the second by respondent Nos. 3 to 5 in O.S. Writ Petition No. 1021 of 2011, (claiming to be bonafide purchasers of the said shops), the third by Prakash Shendge and Vilas Shendge, leaseholders of said plots and the fourth by Accrate and Shivalik.

28. As regards the argument of PCNTDA, it is submitted that the communication dated 14th November, 2003 was sent on the basis of the decision of this Court in the case of The Shamrao Vithal Co- operative Bank Ltd. v. M/s. Star Glass Works, Mumbai, & Ors., AIR 2003 Bom 205, which had taken the view that even co-operative banks were covered by the Banking Law and, therefore, cannot resort to remedy under Section 101 of the said Act. It is, however, accepted that the said decision is later on reversed by the Apex Court. Further, the Bank is obliged to deal with the two plots in conformity with the Land Disposal Rules as assured by the Bank in its communication dated 11 th February, 2003.
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Jvs. WP.1137.2004
29. The counsel appearing for the private respondents contended that, once attachment of plot is done, it is not open to attach the premises or shops in the building constructed on the said plot. Such attachment would result in second attachment and not consistent with the scheme of Rule 107 of the said Rules. For that reason, the attachment of said shops done by the Recovery Officer on 17 th February, 2010 is not legal and valid. Therefore, the decision of the Revisional Authority of setting aside the said attachment and public notice for auction of the said shops, will have to be upheld. The counsel for S.V. Developers contended that the interim order passed in the first set of writ petitions (Nos. 1137 of 2004 and 1138 of 2004) was on 9 th February, 2004, whereas Memorandum of Understanding with the leaseholders was executed on 22 nd March, 2001, and the Development Agreements were executed on 3 rd March, 2003. Further, the ad-interim order was vacated on 31st August, 2004 on dismissal of the two writ petitions. The Supreme Court interim order was passed only on 25 th February, 2005. The transactions in respect of the said shops, however, were effected in the interregnum on 4th January, 2005. As a result, there was no order of injunction operating either at the time of execution of Development Agreement in favour of S.V. Developers or execution of Articles of Agreement in favour of Suvarna, Vijay and Raj Page 23 of 44
Jvs. WP.1137.2004 in respect of the said eight shops.

30. The counsel for the developers and the private respondents were at pains to argue that the order of attachment dated 11 th February, 2003 in respect of the two plots cannot impact the transactions pursuant to the Development Agreement dated 3 rd March, 2003 and the Articles of Agreement dated 4th January, 2005. According to them, relief claimed in terms of prayer clause (b) of the first set of two writ petitions has become infructuous.

31. In response, the counsel for the petitioner-Bank submits that the affidavit filed by the partner of S.V Developers dated 9 th .
March, 2004 concedes that S.V Developers have created third party .
interest in the said property in favour of the persons who have booked their premises in the said property. However, no conveyance in favour of third parties, including, in particular, respondent Nos. 3 to 5 in O.S. Writ Petition No. 1021 of 2011, has been executed. That presupposes that the title in the shops has not been transferred as yet. He further submits that, since the Apex Court has remanded the two writ petitions for re-consideration on merits in terms of judgment dated 16 th November, 2010, all questions will have to be considered by this Court Page 24 of 44
Jvs. WP.1137.2004 on their own merits, in accordance with law, and the Court must thereafter issue appropriate directions or pass such order, if necessary, by moulding the reliefs claimed by the petitioner-Bank.
32. The first question that needs to be considered is: What is the effect of attachment of two plots, being plot Nos. 12 and 13, respectively? The attachment order was passed by the Recovery Officer under Section 156 of the said Act on 11 th February, 2003 in connection with the loan transaction between the petitioner-Bank with Shivalik and Accrate, to which the leaseholders in respect of two plots, Prakash Shendge and Vilas Shendge were guarantors. It is indisputable that the said attachment order operates till this date.

33. Suffice it to note that, the order of attachment of two plots in connection with Recovery Certificates dated 13 th September, 2002 and 25th September, 2002 is not the subject-matter of challenge in any pending proceedings. In law, if the attachment is operating in respect of any property, alienation of rights therein is void. Section 64 of the Code of Civil Procedure makes it amply clear. Considering the fact that the Development Agreement executed by the leaseholders, Prakash Shendge and Vilas Shendge, in favour of S.V. Developers in respect of Page 25 of 44
Jvs. WP.1137.2004 said plots, after the attachment thereof, being in the nature of alienation of the species of rights of the leaseholders, is hit by the principle underlying Section 64 of the Code and, therefore, void.
34. The next question is, whether the Development Agreements executed in favour of S. V. Developers were in good faith? Notably, the Development Agreements were executed by the leaseholders on 3 rd March, 2003 in favour of the partnership firm S. V. Developers, which has been constituted only in February 2003 and registered in April 2003. The brother of leaseholders - Suresh Shendge, was one of the partners in the firm along with his wife, Suvarna Shendge. Further, the consideration for which the said Development Agreements were executed by the leaseholders, in favour of S.V Developers is not .
forthcoming. In the backdrop of these facts, the transaction cannot be protected by Section 53 of the Transfer of Property Act, 1882. Further, the fact that the said Development Agreements were executed only after the attachment order was passed by the Recovery Officer on 11 th February, 2003 compels us to accept the argument of the petitioner- Bank that the transfer of the said rights in favour of S.V. Developers was a sham and fradulent transfer within the meaning of section 53 of the Transfer of Property Act, effected to defeat or delay the claim of the Page 26 of 44
Jvs. WP.1137.2004 petitioner-bank arising out of the two Recovery Certificates against the leaseholders. It was, thus, a fraudulent transfer and not in good faith at all. Therefore, the Development Agreements dated 3 rd March, 2003 in favour of S.V. Developers in relation to attached plot Nos. 12 and 13 are void. Once the said transaction is void, all actions taken on the basis of the said transaction effected by S. V Developers, will .
necessarily have to be ignored, in law.

35. The petitioner-Bank is justified in contending that the circular transactions effected by the leaseholders and the said guarantors, who happen to be members of the Shendge Family, are the product of a conspiracy hatched to defeat and delay the recovery of the amount under the Recovery Certificates by public auction of the two plots. We find the argument of the petitioner-Bank that the members of Shendge Family, (Jaisingh Shendge, Prakash Shendge, Suresh Shendge and Vilas Shendge - being MLA, MLC and Minister and also being Director and Chairman of the petitioner-Bank), wielded extensive political influence and were capable of influencing the PCNTDA, not to allow the Bank to sell the two plots by public auction, instead hasten to grant permission to construct building on the said plots, in spite of the subsisting order of attachment, which was made known to the said Authority. Page 27 of 44
Jvs. WP.1137.2004
36. A Priori, the leaseholders, Prakash Shendge and Vilas Shendge, as well as S.V Developers, cannot be allowed to contend that the .
Development Agreements in question were executed in good faith. They had complete knowledge of order of attachment dated 11 th February, 2003 in connection with the two Recovery Certificates in connection with loan transactions between Shivalik or Accrate with the petitioner-Bank. Further, considering the fact that circular transactions have been executed, whereby the members of the Shendge family and resultantly the leaseholders, were to enrich themselves by getting market value of eight shops in the building "City Pride" constructed on the said plots, was nothing short of defeating and delaying the petitioner-Bank from recovery of the amount under the two Recovery Certificates.

37. Notably, there is nothing on record that the title in the said plots of Prakash and Vilas Shendge, has been lawfully transferred. The Recovery Officer could justly ignore the abovesaid transactions and proceed with the public auction of the property in question, including of the said shops. It was also open to the Recovery Officer to direct the Page 28 of 44
Jvs. WP.1137.2004 leaseholders and persons claiming through them to remove the structures constructed and standing on the said plots and hand over possession of vacant plots. It was equally possible for the Recovery Officer to sell the two plots along with the structures standing thereon on "as is where is" basis, which may or may not fetch the best price to offset the outstanding amount payable under the two Recovery Certificates executable against the leaseholders and other guarantors, Suresh Shendge and Vilas Shendge. It was equally possible for the Recovery Officer to auction the said shops only, in the first instance, to recover the amount payable under the Recovery Certificates.
38. Be that as it may, we may now consider the effect of the Articles of Agreement executed by S.V. Developers in favour of Suvarna, Vijay and Raj dated 4th January, 2005. The eight shops referred to in the said Articles of Agreement dated 4th January, 2005 were attached by the Recovery Officer on 17th February, 2010 having noticed that the said transaction was a subterfuge so as to retain the property within the Shendge Family by such circular transactions. Notably, Suvarna Shendge is one of the partners along with her husband, Suresh Shendge in S.V Developers. The eight shops, said to have been .
transferred under the said Articles of Agreement dated 4 th January, Page 29 of 44
Jvs. WP.1137.2004 2005 are only for a meager consideration of ` 30 lakhs, admeasuring 163.32 square meres along with attached terrace of 42.23 square metres in building "City Pride". In the context of the attachment of the eight shops, the argument of Suvarna, Vijay and Raj (respondent Nos. 3, 5 and 4 in O.S. Writ Petition No. 1021 of 2011), is that, the said attachment was impermissible, because the said persons were neither guarantors, nor principal borrowers, in respect of the loan transactions, in connection with which, the two Recovery Certificates have been issued. Secondly, it amounts to second attachment, which is impermissible and, thirdly, said attachment is not consistent with Rule 107 of the Rules.

39. We are not impressed by these objections. Firstly because, the transaction in their favour is void. For, S. V. Developers has had no lawful authority to enter into that transaction. Further, the transaction was amongst the circular transactions to ensure that the value of the property is kept intact by creating rights in favour of members of Shendge Family in the eight shops. That was done to defeat and delay the recovery of the amount by the Bank under the Recovery Certificates from the principal borrowers and guarantors jointly and severally. Moreover, the said transaction, on the face of it, is not in good faith, Page 30 of 44
Jvs. WP.1137.2004 because the Articles of Agreement are executed in favour of none other than one of the partners of S.V Developers, Suvarna Shendge, who .
happens to be wife of another partner, Suresh Shendge, and their two minor children, Raj and Vijay. It was also not a transaction for due consideration. From the Agreement itself, it is evident that it is only for a consideration of ` 30 lakhs for eight shops admeasuring 163.32 square meres along with attached terrace of 42.23 square meters. For all these reasons, it necessarily follows that the said transaction was also fraudulent and to defeat and delay the due recovery of the amount under the two Recovery Certificates.

40. Reverting to the argument of the said respondents that the attachment of the eight shops pursuant to order passed by the Recovery Officer on 17th February, 2010 would result in second attachment, even this argument does not commend to us. The first attachment order passed by the Recovery Officer on 11th February, 2003 was in respect of two plots. In spite of the said attachment, the leaseholders proceeded to give development rights thereof to S.V. Developers. The Authority (PCNTDA) did not accede to the request of the petitioner-Bank to allow them to conduct public auction of the two plots; and, instead, allowed the leaseholders guarantors to develop the said plots - facilitating Page 31 of 44
Jvs. WP.1137.2004 creation of third party rights in the units constructed thereon. The petitioner-Bank, having realised that the matter may get complicated and the Recovery Officer, after realising that the eight shops have been transferred in favour of members of Shendge Family, which otherwise would become available to the leaseholders for disposal, proceeded to attach the said shops. There is nothing wrong in such attachment, which is not of the plots, but of the shops in the constructed building, which also has potentials of recovery of the amount towards the Recovery Certificates pending execution against the leaseholders by ignoring the Articles of Agreement being nullity and fraudulent transaction. Thus, it is not second attachment of the same plots, but of premises / shops in the building constructed on the subject plots. No legal provision or precedent has been brought to our notice, which prohibits such attachment (of the shops), on the finding that the same are still available in the hands of the guarantors.
41. As regards the argument that the attachment of shops was not permissible and that it was not consistent with Rule 107 of the said Rules, even this argument does not commend to us. The attachment is of shops. It is on the assumption that the Development Agreement in favour of S.V. Developers itself was not binding on the Page 32 of 44
Jvs. WP.1137.2004 petitioner-Bank, being nullity. Thus, S.V. Developers has had no right to transfer the said eight shops, which are subject-mater of attachment in building named "City Pride" constructed on the attached plots. Further, the transaction in favour of Suvarna, Vijay and Raj was a fraudulent transaction and, in law, the said shops were available in the hands of the guarantors for recovery of the amount in respect of the Recovery Certificates against them. For, the purported transfer by way of Articles of Agreement dated 4th January, 2005 in favour of Suvarna, Vijay and Raj was a fraudulent transfer, which deserved to be ignored, in law.
42. The next argument was that such attachment was not permissible by clauses (10) and (11) of Rule 107, is also devoid of merits. Clause (10) of Rule 107, stipulates that immovable property shall not be sold in execution of a decree, unless such property has been previously attached. The purpose of attachment of the eight shops was to put the said property to auction so as to recover the dues pertaining to the two Recovery Certificates from the guarantors / leaseholders of the two plots. Reliance was then placed on clause (11) of Rule 107. It prescribes the power for attachment and sale or sale without attachment of immovable property. Emphasis was placed on the proviso. There is nothing in clause (11) or, for that matter, the Page 33 of 44
Jvs. WP.1137.2004 proviso under clause (11), which would render the attachment dated 17th February, 2010 of the eight shops as illegal.
43. We are conscious of the fact that the question whether the documents creating third party rights, in respect of the shops, are void, ordinarily, should be decided in a suit filed for such declaration. In the present case, however, it is noticed that the attachment order is of shops, which have been purportedly transferred in favour of Suvarna Shendge, Vijay Shendge and Raj Shendge. They are the family members of Shendge family. Further, Suvarna is the wife of Suresh Shendge, who is one of the guarantors to the loan transaction with Shivalik. Moreover, Suvarna is also partner along with her husband Suresh in S. V Developers, the transferor. The question regarding .
genuineness and legality of transaction in favour of Suvarna, Vijay and Raj could be justly examined by the Recovery Officer, in proceedings arising from attachment. Even for this reason, we are inclined to answer the issue in favour of the Bank.

44. The counsel for the petitioner relied on paragraph 25 of the decision of the Apex Court in the case of Salem Advocate Bar Association T.N. v. Union of India, (2005) 6 S.C.C. 344, which restates Page 34 of 44
Jvs. WP.1137.2004 the legal position obtaining from Section 64 of the Code. To wit, where an attachment has been made, any private transfer or delivery of property attached or of any interest therein contrary to such attachment shall be void as against all claims enforceable under the attachment.

45. Reliance has been placed on another decision of the Apex Court in the case of C.S. Mani (Deceased) by LR C.S. Dhanapalan v. B. Chinnasamy Naidu (Deceased) through LRs. (2010) 9 SCC 513. The Court had occasion to deal with the legal position regarding determination of attachment. It noted that an attachment of an immovable property effected in execution of a decree, will continue until the said property is sold and the sale is confirmed, unless it is determined or removed on account of any of the following reasons: (i) by deemed withdrawal under Order 21 Rule 55 CPC, (ii) by determination under Order 21 Rule 57 CPC, (iii) by release of the property from attachment under Order 21 Rule 58 CPC, or (iv) by operation of law, that is, on account of any statute declaring the attachment in execution shall cease to operate, or by the decree (in respect of which the property is attached) being nullified, or by the execution being barred by the law of limitation, or (v) by consent of Page 35 of 44
Jvs. WP.1137.2004 parties. In the present case, none of this has happened, for which reason, the attachment of the two plots or of the shops in connection with the Recovery Certificates or the order of the Recovery Officer dated 11th February, 2003 would continue to operate.
46. Reliance is also placed on other decisions of the Apex Court in the cases of Tayabhai M. Bagasarwalal & Anr. v. Hind Rubber Industries Pvt. Ltd. & Ors., (1997) 3 SCC 443 and All Bengal Excise Licensees Association v. Raghabendra Singh & Ors., (2007) 11 SCC 374. Reliance is also placed on decisions of this Court in Keshrimal Jivji Shah & Nnr. v. Bank of Maharashtra & Ors., (2004) 3 Mh.L.J. 893, T.E.S. Pvt. Ltd. v. Indian Chemicals & Ors., AIR 2004 Bombay 198 (F.B.) and B.B. Patil v. State of Maharashtra & Ors., AIR 1975 Bombay 143 (F.B.). We do not think it necessary to dilate on these authorities, except to observe that no contra legal provision or precedent has been shown by the respondents that the attachment order passed by the Recovery Officer in respect of the two plots on 11 th February, 2003 or the attachment orders passed by the Recovery officer in respect of eight shops in the building "City Pride" constructed on the two attached plots dated 17th February, 2010 have elapsed or come to end. So long as the said attachment operates, it is open to the Page 36 of 44
Jvs. WP.1137.2004 Recovery Officer of the petitioner-Bank to take the same to its logical end. As the Recovery Officer, as aforesaid, could call upon the leaseholders to remove the structure constructed on the two plots put up after the order of attachment and then auction the said plots or to auction the said attached plots on "as is where is" basis and/or also to auction the units/shops in the building "City Pride".
47. That takes us to the relief claimed in the first set of Petitions. The Petitioner Bank has challenged the permission granted to the leaseholders Prakash Shendge and Vilas Shendge for amalgamating the two plots being plot Nos. 12 and 13 and to develop the same through the developer S. V Developers. The argument of S. V . .
Developers is that this prayer clause has become infructuous after the building is constructed on the two plots and grant of Completion Certificate. This argument does not commend to us. The permission of amalgamation of the two plots, permitted by PCNTDA was during the pendency of the permission sought by the Recovery Officer of the Petitioner bank from PCNTDA to sell the two attached plots. That request of the Recovery Officer was rejected only on 3 rd April, 2003. But, before that, the leaseholders Prakash Shendge and Vilas Shendge executed development agreement in favour of S. V Developers, a .
Page 37 of 44
Jvs. WP.1137.2004 partnership firm of which the family members of Shendge family are partners, namely Suresh Shendge and Suvarna Shendge. In the first place, consequent to order of attachment of the two plots, it was not open to the leaseholders Prakash Shendge and Vilas Shendge to give away the development rights to S. V. Developers. That transaction is hit by Section 64 of the Code of Civil Procedure. That transaction being void, S. V. Developers had no legal right to develop the property. As a matter of fact, the leaseholders themselves also could not have developed the said attached plots. Thus, the PCNTDA committed jurisdictional error in granting permission to the leaseholders to develop the property through S. V. Developers, in spite of the order of attachment, operating against the said plots. Merely because the leaseholders and S. V. Developers completed the construction, on the basis of permission given by PCNTDA, that does not mean that it is not open to the Petitioner Bank to ask for the revocation of the said permission, being void and illegal. The Petitioner Bank can then insist that the leaseholders shall remove the structure standing on the attached plots and make available the said plots to the Petitioner Bank for disposal by public auction, so that the sale proceeds can be adjusted towards the amount recoverable from the leaseholders, in respect of two Recovery Certificates. Moreover, we are inclined to accept the Page 38 of 44
Jvs. WP.1137.2004 argument of the Petitioner Bank that it is not open to the Respondents to argue that prayer clause (b) has become infructuous because the Supreme Court has remanded the first set of Writ Petitions for reconsideration in accordance with law, keeping all questions open. Suffice it to observe that the permission granted by PCNTDA, to the leaseholders, to develop the attached plots, in spite of knowledge of order of attachment, in respect of concerned plots, was operating, we have no option but to hold that the said permission granted by PCNTDA was without authority and colourable exercise of power.
48. The second relief claimed in the first set of Writ Petitions is to direct the PCNTDA to grant permission to Recovery Officer for sale of the attached plots. The Petitioners are entitled to even this relief. However, the sale of the property must be in conformity with the extant regulations and municipal laws regarding transfer and development of the said plots. It is a different matter that the Petitioner Bank may call upon the leaseholders to remove the structure standing on the two plots or sell the two plots on "as is where is basis". That is the prerogative of the petitioner Bank and ought to be exercised keeping in mind the primary objective of recovering best market price for the property attached under two separate attachment orders for recovery of Page 39 of 44
Jvs. WP.1137.2004 the dues in connection with the two recovery certificate against the guarantors, jointly and severally.

49. The relief claimed in the third Writ Petition, being Writ Petition No. 1021/2011, is to set aside the order passed by the Revisional Authority, dated 24th December, 2010 allowing the Revision Application filed by Suvarna Shendge, Vijay Shendge and Raj Shendge. The Revisional Authority has held that the said Applicants were neither the borrowers nor the guarantors of Respondent No. 1 Bank. They are owners of 8 shops, which were attached by the Respondent No. 1 Bank. They purchased the shops under agreement for sale dated 4 th January, 2005, out of the 40 shops in the shopping complex constructed on the two plots. The Revisional Authority has held that when the agreement for sale was registered, there was no injunction for sale of the shops. Indeed, when the shops were purportedly sold under the Articles of Agreement dated 4th January, 2005, there was no injunction for selling the shops. However, as found earlier, the said Articles of Agreement has been executed by S. V. Developers, it had no authority to do so. For, the transfer of development right effected in favour of S. V. Developers in terms of development agreement dated 3 rd March, 2003 pertaining to the attached plots, was itself nullity. Further, the purported sale of Page 40 of 44
Jvs. WP.1137.2004 the 8 shops, in favour of Suvarna Shendge, Vijay Shendge and Raj Shendge is neither in good faith nor for due consideration. It is a fraudulent transfer effected only to defeat and delay the recovery of amount from the leaseholders/guarantors, who are none else but the family members of Shendge family. Significantly, Suvarna is partner of the said S. V. Developers, along with her husband Suresh Shendge - who is one of the guarantors. Furthermore, the purported transfer of 8 shops, which have been attached by the bank, in terms of order of the Recovery Officer, dated 17th February, 2010 is only for a measly price of ` 30 lakhs, which was not commensurate with the prevailing market price. Even for this reason, it is a fraudulent transfer. It matters not that Suvarna Shendge, Vijay Shendge and Raj Shendge are not guarantors. In view of the finding that, the transfer of 8 shops in their favour is fraudulent and, therefore, void; and more so, the construction of the building, in which the said shops are situated, itself, is in breach of order of attachment, they would not get any title in the said 8 shops. The title of the property remains, in law, with leaseholders Prakash Shendge and Vilas Shendge. For all these reasons, the Recovery Officer would be justified in proceeding against the 8 shops independently, in terms of order dated 17th February, 2010, for disposing of the same by public auction. Accordingly, the conclusion reached by the Revisional Page 41 of 44
Jvs. WP.1137.2004 Authority will have to be quashed and set aside and instead the Recovery Officer is permitted to proceed with the public auction of the said 8 shops attached, in terms of order dated 17 th February, 2010, for recovering the dues concerning the two Recovery Certificates, pending execution against guarantors Prakash Shendge and Vilas Shendge. Accordingly, the impugned decision of the Revisional Authority is set aside and the decision of the Recovery Officer to proceed with the public auction of the 8 shops, being shop Nos. 32 to 39, in building "City Pride", constructed on plot Nos. 12 and 13 is upheld.
50. For the reasons noted herein before, we have no hesitation in allowing all the three Writ Petitions filed by the Petitioner Bank on the above terms. We make it clear that it is open to the Petitioner Bank to call upon the leaseholders to restore the position of the two plots, status quo ante issuance of attachment order on 11 th February, 2003. It will also be open to the Petitioner Bank to consider to sale the two attached plots on "as is where is basis" and/or to separately sell the 8 shops in the first place by public auction, so that best price is recovered to offset the the outstanding dues under the two Recovery Certificates from the leaseholders/guarantors Prakash Shendge and Vilas Shendge. Page 42 of 44
Jvs. WP.1137.2004 If the Petitioner Bank opts for the first option, in that case, the permission granted by PCNTDA, to the leaseholders Prakash Shendge and Vilas Shendge, be deemed to have been cancelled in terms of this order and in that case, the Petitioner bank would resubmit the proposal to the PCNTDA for permission to sell the plots by public auction, after getting back vacant and peaceful possession thereof, from the leaseholders. That Application will have to be considered by PCNTDA on its own merits in accordance with law, expeditiously. So long as, the Petitioner Bank is willing to abide by the provisions pertaining to public auction of land belonging to PCNTDA, as per the extant regulations and municipal laws, there is no reason, why such permission to sell two plots, by public auction, should not be granted to the Petitioner Bank. If the decision of the PCNTDA is adverse to the Petitioner Bank, it will be open to the Petitioner Bank to challenge the same before appropriate forum, which challenge can be considered on its own merits in accordance with law.

51. Accordingly, all the three Writ Petitions are allowed with costs, on the above terms.
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Jvs. WP.1137.2004
52. In view of disposal of the Writ Petitions, nothing survives for consideration in the Civil Applications. Civil Applications are also disposed of.
(S. S. SHINDE, J.) (A. M. KHANWILKAR, J.) Page 44 of 44

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