Collision of 2 orders of 2 different courts
Kumari Cheenu
(Querist) 16 September 2018
This query is : Resolved
I got possession of a shop through Execution Petition but then I came to know that this property was under the possession of a Bank. Bank had used SARFASI ACT.
Now I have informed everything to my Execution Court and have asked some time to study the new situation.
My questions:-
Should I file an application u/s 340(CRPC) because my opponent had concealed material fact from the Court?
Or an application u/s 47 CPC because this section says that all the questions related to an Execution must be resolved in the Execution Court. But I need further clarification that whether my questions fall in the ambit of this section or not?
Or file Damages in this Execution Court or some other Court?
Or 420?
My question are based on my NET surfing but nothing is clear to me. SOS.
Dr J C Vashista
(Expert) 17 September 2018
Before instituting the suit or during adjudication (before settlement of issues i.e., the suit was decreed) did you find out encumbrance on the suit property?
Consult a local senior lawyer for better appreciation of facts/documents, guidance and proceeding.
However, if you are practicing or suit property is located in Delhi and feel like, may contact me at:
Ch. No 647, Dwarka courts complex, New Delhi-110075 cell # 9891152939
email: majjagdish@yahoo,com
Kumari Cheenu
(Querist) 17 September 2018
Mr Vashistha, thnx a lot for replying sir. I am not a lawyer. This is my personal Case. I got the decree through Arbitration. Arbitral Award was in my favour. Then I filed the execution Petition. The Ld. ADJ, ordered the physical possession. When I took the physical possession of the property then only I came to know that this property was under the possession of a certain bank.
I have informed the same to the Execution Court i.e. ADJ who ordered the possession in my favour.
Now further I am confused what is the best road ahead for me.
Please guide...
Isaac Gabriel
(Expert) 17 September 2018
If the bank enforced the searfasi Act prior to the award in arbitration,the arbitral award becomes infructious. Perhaps, it might not have been known to the opposite party while attending the arbitration to elicit this fact.
Guest
(Expert) 17 September 2018
@ Kumari Cheenu,
If you rely mainly on net surfing, even for framing questions, you will land nowhere, as merits of the case, nature of the dispute, dates of the arbitration award as well as the decision under sarfaesi Act, intentions of parties, and the bank's involvement are the very crucial issues to be examined in detail for the purpose of appropriate advice.
Since you are already in possession of the property on account of execution decree, in my views for the time being you are required only to deliver a copy of the execution decree to the related bank to see their reaction/ response.
In the meanwhile, you must make it a point to have some personal consultancy from some talented expert on property laws to get yourself fully prepared for the future course of action.
Otherwise, you are sure to get your case complicated to the extent of no easy retrieval in your favor.
BAALASUBRAMANNYAMM
(Expert) 17 September 2018
Since the property is in the hands of Bank, you would not get the possession of the property through the Execution Court against the same property. It is very clear that NO ENCUMBRANCES effected as on the date of possession of the delivery of the property. So better to enforce the decree in any other property, if your opponent had.
Guest
(Expert) 17 September 2018
@ Mr. balasubramannyamm,
In the starting sentence the querist has stated that he got possession of the shop.
BAALASUBRAMANNYAMM
(Expert) 17 September 2018
Dhingra Ji,
I understand the point. But he again stated in the 2nd para "Now I have informed everything to my Execution Court and have asked some time to study the new situation". It means that " No physical Possession of the shop" have completed.
Guest
(Expert) 17 September 2018
Baalasubramannyamm ji,
I don't think, we have to presume anything at our own, as against what the querist has stated something.
To be frank, in my view, the query is merely an academic query, as reveals some hypothetical situations that the querist has made mention, e.g., he has not discussed anything about the basis of his right and claim for taking possession of the shop, on what account and event he had to go for arbitration, if not already in possession that too ignoring the existing circumstances of implication of the Sarfaesi Act, how and when he came to know about the case under the Sarfaesi Act, and why he could not bring that in to the notice of the Arbitrator, etc,
He has simply raised an academic query, not discussed the real problem, may be by manipulating the query himself just to falsely show as if he has some practical problem..
.
Kumari Cheenu
(Querist) 17 September 2018
I am thankful to all the Experts but when I wrote that this is a personal Case, plz trust.
I gave bayana( earnest money) to my opponent, he neither gave the shop nor the double of the earnest money.
The case went in the arbitration, I won. As per the Award, ADJ ordered possession in my favour. I have the physical possession with me right now.
I assume that as the bank shall claim in the Court its possession back the ADJ shall set aside his order through which I got the possession.
But what other options I have further, that was the question.
Guest
(Expert) 17 September 2018
@ Shri Baalasubraamannyamm,
Please be informed, she has confirmed that she has physical possession with her.
Guest
(Expert) 17 September 2018
@ Kumari Cheenu,
I stand by my original suggestion.
However, if the bank has already obtained any decree under the Sarfaesi Act, rest of the opinion, guidance, suggestion or advice, depends solely on examination of the judgment under Sarfaesi Act. Any suggestion on hypothetical basis may prove harmful to you.
