Final Order 1

Order Details: Chamber summons
Pdf Text: 1 53/2018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 53 OF 2018
IN
EXECUTION APPLICATION NO. 157 OF 2015
IN
SUMMARY SUIT NO. 3408 OF 2011
(CNR NO MHCC010002582018)
The Board of Trustees of the Port of Mumbai. …..Applicants
In the matter between
Manisha Dyshyant Mehta. .....Plaintiffs
V/s.
1. M/s. Shreeji Traders & Ors. ....Defendants
And
The Estate Manager & Ors. .....Additional
Respondents.
CORAM : HIS HONOUR JUDGE
SHRI. N.V.JIWANE
(C. R. No.: 28)
DATED : 30th January, 2018.
Advocate Mr. Vishal Talsani for the Judgment/debtor.
Advocate Mr. Aniket Ransubhe for the Decree/holder.
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ORAL ORDER
1. The applicant/objector has brought this Chamber
summons for setting aside/cancellation of warrant of attachment of
property bearing plot of land bearing no.87 at Mazgaon Tank Bunder
(Reay Road), Mumbai and for others ancillary relief.
2. It is contended by the applicant/objector that applicant
is the Board of Trustees of the Port of Mumbai under the provisions of
the Major Port Trusts Act, 1963. Under the provisions of section 29 of
the Major Port Trusts Act, 1963 all the properties vest in the Board of
Trustees. It is the contention by the applicant/objector that
applicant/objector was not the party to the proceeding between
decree/holder and Judgment/debtor. It is further contended by the
applicant/objector that the property bearing plot no.87 at Mazgaon
Tank Bunder (Reay Road), Mumbai, is the property owned by the
applicant/objector. The said property was given on lease to Shri.
Manilal D. Doshi, Shri. Gunvantrai M. Mehta & Shri Jaswantrai Mehta
(Father of the judgment/debtor no.2) commencing from 29/1/1973
jointly for a period of 30 years. But as the lessee committed breach of
lease and therefore, the applicant/objector terminated the lease and
filed the suit no. 131/137 of 1986 in Small Causes Court at Bombay for
possession and for arrears of rent. The said suit filed by the
applicant/objector was came to be decreed on 21/1/1997. The
applicant/objector executed the decree on 16/4/2014. But one
Abdullah Habibullah Siddiqui filed an obstructionist proceeding which
is pending. It is further contended by the applicant/objector that Shri.
Jaswantrai Manilal Mehta had taken out the Notice of Motion No.
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563/2010 for setting aside said exparte decree which was dismissed by
order dated 19/4/2011. Against the said order Shri. Jaswantrai Mehta
filed Writ Petition no. 8853/2014 but the same was withdrawn by him
on 08/12/2015. Thus it is contended by the applicant/objector that the
property attached in the present execution proceeding is not liable for
the attachment as the same is owned by the applicant/objector.
Therefore, the applicant/objector prayed to set aside the attachment
and to stop further proceeding of sale.
3. Decree/Holder strongly opposed the Chamber Summons
and contended that the applicant/objector has not approached the
Court with clean hand and suppressed the material facts from the
Court. It is further contended by the decree/holder that the property
described in the Chamber Summons does not resemblance with the
property attached by this Court in the execution proceeding. The
property attached is 144, Reay Road, Mumbai, while the
applicant/objector prayed to set aside the attachment of plot of land
bearing plot no.87 at Mazgaon Tank Bunder (Reay Road), Mumbai.
The decree/holder further objected to the Chamber Summons on the
ground that the Chamber Summons has been brought at belated stage
and barred by limitation. The applicant/objector was knowing about the
attachment since from June 2015 but has not taken any proceeding till
this date and therefore, contended that the Chamber Summons is
barred by limitation. The decree/holder further contended that the
Chamber Summons brought by the applicant/objector is barred by
principal of resjudicata as earlier Chamber Summons brought by
Judgment/debtor was rejected. It is further contended by the
decree/holder that the building on plot no.87 bearing gala no.144 is
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attached and the same needs to be sold in execution of the decree and
their will be no prejudice to applicant/objector because the plot is
owned by the applicant/objector which is not attached or required to
be sold. On all these grounds he prayed to reject the Chamber
Summons.
4. Heard Learned Advocate for applicant/objector and
Learned Advocate for decree/holder. It is an admitted facts on record
that the plot no.87 on which the gala no.144 at Mazgaon Tank Bunder,
Reay Road Mumbai is owned by the applicant/objector. The
decree/holder has filed on record the list of Mumbai Port Trust – Estate
Tenancies details, in which Shri. Manilal Daulatrai Doshi & Two others
were shown as tenant at Plot no.87. It is noteworthy to mention here
that decree/holder has filed the present execution proceeding against
the judgment/debtor for recovery of an amount as per the decree
passed on 30/4/2014. The Learned Advocate for decree/holder has
relied on reported ruling of AIR 2004 Bom198 Tangerine Electronics
Systems Pvt.Ltd. Mumbai. Vs. Indian Chemicals & Ors., wherein the
Hon'ble Bombay High Court at para no.33 has held as under;
“ The aforesaid provision leaves no manner of doubt that it
enables the tenant to claim or receive any sum or any
consideration, as a condition of the relinquishment. Transfer or
assignment of his tenancy of any premises. It indicates that the
tenant has a disposing power in respect of the interest in the
tenancy in the nonresidential premises for his own benefit
either by surrendering it to the landlord for any sum or
consideration or transfer or assign the tenancy for
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consideration. Clause appended to the proviso of subsection (1)
of Section 60 prohibits the attachment and sale of interest of the
lessee of a residential building to which the Rent Control Act
applies but the said prohibition is not applicable to the interest
of a tenant of a nonresidential premises to which the
Maharashtra Rent Control Act applies and therefore, it can
safely be held that the interest of the tenant in the non
residential premises to which the Act of 1999 applies is
attachable and saleable in execution of the decree against the
tenant.”
5. But the question in present Chamber Summons is that
whether the decree/holder is entitled to attached and sale the property
which was admittedly hold by the judgment/debtor under lease. It is
not the case of the decree/holder that the judgment/debtor are owner
of the property attached. It is settle principal of law that the interest of
the tenant in non residential premises is attachable and saleable in the
execution of the decree against the tenant. But in the present case the
decree/holder has attached the property and wants to sale lease hold
property in the execution of the decree which is not permissible in law.
By no stretch of imagination property of landlord can be sold in
execution of the decree against the tenant.
6. The learned Advocate for decree/holder submitted that
the property required to be sold is not plot but the structure standing on
the plot. The said contention of the decree/holder is misconceived and
not tenable in law. The judgment/debtor have no right or title over the
plot or structure standing thereon. Merely because there is delay in
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approaching the Court, does not debar applicant/objector who are the
real owner of the property to pray for removing attachment. The Order
21 Rule55 specifically empowered rightful owner to object for the
attached and further proceeding in the execution of decree on the
ground that such property is not liable to be attached. In the present
proceeding the right and title of the applicant/objector is not at all
disputed therefore, the applicant/objector being real owner of the
property attached i.e. plot no.87 at Mazgaon Tank Bunder (Reay
Road), Mumbai on which the judgment/debtor have no title can not be
attached and further no sale proceeding can be initiated in respect of
the said property. Therefore, I am of the considered opinion that the
applicant/objector have proved that the property attached in the
execution of the decree is not liable to be attached as the same is not
owned by the Judgment/debtor. Therefore, the Chamber summons
needs to be allowed. Hence, I pass following order.
O R D E R
1. Chamber Summons no.53/2018 is hereby allowed.
2. The property bearing plot no. 87 at Mazgaon Tank Bunder
(Reay Road), Mumbai having gala no.144, Reay road, Mumbai
400010 is not liable for attachment and sale in execution of the
decree.
3. The attachment of the said property as described above is
hereby set aside and further proceeding of sale of said property
is hereby recalled.
4. No order as to costs.
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5. Chamber Summons no.53/2018 disposed off accordingly.
(N.V.Jiwane)
Judge,
Date : 30/01/2018 City Civil Court, Gr. Bombay
Dictated on : 30/01/2018
Transcribed on : 31/01/2018
Signed on : 02/02/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
06.02.18 11.22 a.m. Sujata S. Sawant
Name of the Judge HHJ Shri N.V.Jiwane(CR No.28)
Date of Pronouncement of
Judgement/Order.
30.01.18
Judgement/order signed by P.O on 02.02.18
Judgement/order uploaded on 06.02.18
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