Chamber Summons No.1249 of 2009,Execution Application No.318 of 2005,Application/Case No.13 of 1996

14th June, 2013

Petitioner Counsel: Mr. YOGESH P. YAGNIK
Respondent Counsel: Mr. CHIRAG BALSARA, Ms. A. IRANI, Mr. MANISH DOSHI

JUDGMENT

JUDGMENT :- Applicant, the daughter of the Respondent, has taken out this Chamber Summons to set aside the warrant of attachment of the immovable as well as movable properties therein i.e. Flat No.408, Saidham Co.op. Society, Sodawala Lane, Borivli (West), Mumbai, being not a party to the proceedings between the Plaintiff and the Respondent-Judgment Debtor.

2. The brief facts as per the applicant are as under:

"(a) On 11.06.1995, the Agreement was executed between the Respondent and the Applicant by which the Respondent agreed to sell flat No.408, Saidham Co-operative Society, Sodawala Lane, Borivli (West), Mumbai-400 092 to the Applicant for a total sum of Rs.4,25,000/- which was then the prevailing actual price of the said flat.

(b) On 06.12.2000, the Contempt Authority- Bandra passed an order directing Chandrika Nandlal Mehta (Respondent-Judgment Debtor) to pay an amount of Rs.8,000/- per month.

(c) On 0.04.2001, CRA No.678 of 2001 was dismissed. On 10.04.2001, Special Leave Petition No.7022 of 2001 was filed and the Hon'ble Supreme Court granted exparte stay of the order dated 10.04.2001. On 26.06.2001, the Deed of Transfer for full consideration of Rs.4,25,000/- executed by the Judgment-Debtor in favour of the Applicants in respect of the flat.

(d) On 21.08.2001, a share certificate in respect of the flat recorded the transfer in favour of Chetna Kushroo Batty (the Applicant herein).

(e) On 20.12.2001, Kusum H. Soni (Applicant in the Execution Proceedings) filed an injunction Application in the said execution proceedings under Order 21 Rules 41 and 42 of the Code of Civil Procedure, 1908. On 18.03.2002, the Hon'ble Supreme Court vacated the aforesaid stay and SLP No.7022 of 2001 was dismissed as withdrawn. Thereafter on 12.04.2002, order allowing the aforesaid injunction application.

(f) On 22.04.2007, Notice No.900 of 2006 filed under Order 21 Rule 22 made absolute. On 02.02.2009, warrant of attachment and sale in respect of the suit flat and the movables lying in the suit flat. On 30.05.2009, Kusum H. Soni through her C.A. Shri K. Vaishnav addressed a letter to the Society enquiring in whose favour of the flat stands. On 01.09.2009, Society by letter informed that the suit flat stands in the name of Chetna N. Mehta (nee Batty) and not in the name of Mrs. Chandrika N. Mehta. Thereafter, on 31.07.2009, the present Chamber Summons was filed.

(g) On 12.03.2011, affidavit in reply was filed. The only allegation against the Applicant to the Chamber Summons is that the Respondent and the original Claimant are in collusion and conspiracy with each other. Despite the aforesaid fact, no substantive proceeding has been filed to set aside the Deed of Transfer and share certificate in favour of the Applicant herein. On 02.05.2013 rejoinder was filed by the Applicant."

3. The Applicant has filed sir-rejoinder to the same. Strong reliance was placed by the learned Counsel appearing for the Respondent-Judgment Debtor on the evidence/cross-examination of the Respondent (Smt.Chandrika) in the main Application No.13 of 1996, whereby it is stated that "I have another premises being flat no.408 in Saidham Society in Borivali. The said premises stand in the name of myself and my daughter Chetana in joint name. The said premises being purchased for my daughter Chetana and after her marriage she will be residing therein. My daughter is aged about 32 years. The said premises has been let out by us." The learned Counsel appearing for the Respondent contended that the averments so made in supporting affidavit as well as in the additional affidavit and the documents so filed in no way takes away the rights of the Judgment-Debtor to attach the immovable, as well as, the movable properties to recover the dues as per decree/order which has attained finality. The submission is also made that the transactions and the documents so relied upon are collusive in nature and these documents are also fraudulent. Therefore, the attachment order so passed needs to continue.

4. First of all the Decree-holder has never raised or got adjudicated issue about the title and share certificate which stand in the name of the Applicant. Mere averments that these documents are fraudulent and/or executed in collusion is not sufficient. Specifically in the present case, when there are material/documents on record to show that the agreement itself was executed between the Respondent and the Applicant in respect of flat in question dated 11.06.1995 for consideration of Rs.4,25,000/- which according to them was the prevailing price of the flat. The reason behind such transaction between the mother and the daughter just cannot be objected and/or challenged by any third person like Judgment-Debtor in such Execution Proceeding. The share certificate dated 21.08.2001 further endorsed and confirmed that the flat in question is owned by the Applicant and the share certificate recorded her name.

5. The Deed of Transfer for full consideration dated 26.6.2001 which has been executed prior to the share certificate in favour of the Applicant, and even prior to the date of Execution Application which was filed in the year 2005, the immovable property has been in the name of the Applicant. The Injunction Order even if as sought to be contended by the learned Counsel appearing for the Judgment-Debtor was admittedly was in the year 2002, a Notice under Order 21 Rule 22 of CPC was made absolute on 22.04.2007, and as there was no such assertion as made by the Respondent, that itself no way sufficient to deny the title of the property which stands in the name of the Applicant, in view of the documents so referred above which confirmed the Agreement of 1995 itself.

6. It is relevant to note that the Decree holder in such Execution Application by raising such objection of collusion and/or the documents being fraudulent, cannot justify their unilateral action of attaching the property of third person in such a fashion, as the same was done before verifying the title/relevant documents. The Applicant just cannot attach the property of the third person to execute the decree against the Judgment-Debtor unless supporting documents and material placed on record to show that the property, if they want to attach, is owned and/or belongs to the Judgment-Debtor only.

7. In a execution proceeding like this, the concerned office/officer just accepted the averments made by the Decree holder/Plaintiff and attached the immovable or the movable property. The Applicant has moved such Chamber Summons to get the order of attachment and/or lifted and filed supporting documents. The Plaintiff/Decree holder for the first time wants to adjudicate and/or challenged those documents in their Execution Application to support their basic case of attachment. This, in my view, is not permissible mode as it definitely affects and create the complication with regard to the third person's property title/ownership and also their right to enjoy the possession of the properties.

8. Normally, whosoever wants to challenge and/or ownership of any immovable and/or movable property, has to initiate the proceeding in accordance with law. In this proceeding, I am not deciding the right of the Plaintiff-Decree Holder to challenge and/or initiate such proceeding to challenge the share certificate, the agreement and/or deed of transfer and/or other related documents to prove that the whole transactions were fraudulent and/or collusive and the Applicant is not owner of this immovable as well as movable properties. I am of the view that the Plaintiff-Decree holder first discharge/support the case by initiating appropriate proceedings in accordance with law and after getting declaration and/or proving the averments so made of collusion and/or fraudulence may initiate such proceeding again.

9. In Plaintiff's Execution Application, at this stage, unless Plaintiff proves the case of collusion and/or alleged fraud, and the attachment of the immovable as well as the movable properties is unsustainable.

10. The averments are also made along with supporting documents to show that the movable properties are owned by the Applicant and not by the Judgment-Debtor. The documents so placed by the Applicant, unless set aside and/or declared invalid apart from the supporting averments so made, I am inclined to grant this Chamber Summons as prayed.

11. Accordingly, the Chambers Summons is allowed in terms of prayer clauses (a), (b) and (c).

12. However, it is made clear that the Execution Application against the Respondent to continue in accordance with law. There shall be no order as to costs.

13. The learned Counsel appearing for the Plaintiff-Decree holder seeks stay to this order for 8 weeks. Considering the reason so given, I am declined to grant stay, as in my view the attachment order is wrong and illegal. However, since the order of attachment has been in force since 2 February 2009, some interim protection needs to be granted. The learned Counsel appearing for the Applicant in Chamber Summons, on instructions, makes a statement that they will not create any third party right and/or interest and/or transfer in respect of immovable property for a period of 8 weeks from today. That suffice the purpose.

Ordered accordingly.