Final Order 1

Order Details: Chamber summons
Pdf Text: CNR.NO.MHCC010027042019
IN THE BOMBAY CITY CIVIL COURT OF BOMBAY AT MUMBAI
CHAMBER SUMMONS 552 OF 2019
IN
EXECUTION APPLICATION NO.557 of 2018
IN
SUIT NO.3225 OF 2010
Pushpa Ramesh Purohit
...Applicant/Respondent
IN THE MATTER BETWEEN
Coastal Energy Pvt.Ltd. ...Plaintiff
V/s.
Om Textile Pvt.Ltd. ...Defendant
And
Pushpa Ramesh Purohit ...Respondent
Appearances:
Ld. Adv.Chetan Shah for the Applicant.
Ld. Adv.Pallavi Kamadt for the Respondent.
CORAM : HER HONOUR JUDGE
SMT.SHAYANA V PATIL
COURT ROOM NO.14
DATED : 15th June 2019
ORDER
The chamber summons is taken out by the third
party/applicant/respondent against the attachment of the flat and
movables therein which are belonging to her.
2. The applicant has submitted in her affidavit in reply
of chamber summons that warrant of attachment of immovable
property and movables under Order 21, Rule 54 and 43 are issued
by this court in respect of flat No.3A, Bhagyodaya Building,
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J.V.Road, Ghatkopar(W), Mumbai and the movable therein for
execution of decree, whereas the judgment debtor in said decree is
not concerned with said flat in any manner. It is submitted that
the flat cannot attached in execution of the decree granted against
the judgment debtor. The judgment debtor is not owner of said
flat. The applicant has claimed that the flat is belonging to her in
her personal capacity. He has also produced monthly maintenance
receipts and electricity bills in respect of flat which stands in her
name and claimed that she is lawful owner in possession of flat
which is part of her stridhan.
3. The decree holder has filed the affidavit in reply to said
chamber summons and thereby denied the contentions of the
application. It is submitted that the applicant has no locusstandi
to challenge the attachment and that the applicant has not made
out any title documents in her favour for the flat. It is submitted
that applicant is wife of the director of defendant/company
against whom execution proceeding is taken out by the decree
holder. That the applicant has not shown how she acquired title in
said property. That chamber summons is taken out to frustrate the
decree by cancelling the attachment and it is filed in connivance
with the judgment debtor.
4. The applicant has filed rejoinder and thereby denied
the contention in affidavitinreply of the decree holder. She
submitted further that the flat was purchased by her parentsin
law from
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developer under agreement dated 11/04/1979 whereas, the father
in law Shri. Jeetmal Purohit died on 19/04/1995 and the share
certificate of flat was transferred jointly in the name of motherin
law and her husband. She further submits that her motherinlaw
got name of her husband replaced by her/applicant’s name and
accordingly the applicant, along with her motherinlaw, became
lawful owner of said flat as it is apparent from share certificate.
She also claimed that motherinlaw died on 06/02/2011 and
thereafter, she became absolute owner of the flat. She has
submitted that defendant company was never the owner of the flat
and movables lying therein. She has also filed relevant documents
along with said rejoinder.
5. The execution of the application reveals that it is in
respect of money decree of the judgment dated 10/04/2018 in suit
No.3225/2010 passed by this court against the judgment debtor
namely Om Textile Pvt.Ltd. having registered office at Flat No.3A,
Bhagyodaya building, J.V.Road, Ghatkopar(W), Mumbai. It also
reveals that the decree holder has sought assistance of court by
attachment of the immovable property of such flat and movables
therein as described in the schedule in such Exh.1 itself. The
roznama dated 12/12/2018 reveals that attachment warrant
under Order 21, Rule 43 & 54 of C.P.C. was issued on submission
by Ld.counsel for plaintiff without issuance of notice as the
execution application is filed within 2 years of passing decree and
the Judgment Debtor has not given his appearance. It also reveals
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that Ld. advocate for plaintiff/defendant had stated that property
sought to be attached is free from encumbrance and belongs to
defendant. The copies of attachment warrant under Order 21, Rule
43 and 54 are annexed with the chamber summons as Exh. A & B.
Execution proceeding does not consist of any specific report
received about the execution of the attachment as against said flat.
As such there is no report of due execution of attachment wherein
in the manner as described under Rule 54(2) of CPC from the
concerned authority of Sheriff.
6. The applicant has contended that she is the owner of
property sought to be attached under Order 21, Rule 54 of CPC for
execution of the decree passed against the judgmentdebtor who is
her husband and a director of the Judgment debtor company. The
decree holder has submitted that the applicant has not proved her
title to the flat sought to be attached. It needs to be considered
that it is decree holder who has to initially make out prima facie
that the property sought to be attached in execution of decree is
belonging to judgmentdebtor. It can be seen from the execution
proceeding that the decree holder has not annexed any title
documents or prima facie documentary material before the court
to believe that the flat sought to be attached is belonging to the
judgmentdebtor company of applicant’s husband. It can be seen
from the decree that the private limited company incorporated
under Companies Act 1956 is thereby directed to pay decretal
amount to the plaintiffdecree holder. The decree does not reveal
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that any joint and several liability was conferred on the director of
such company so as to make any of the director personally liable
to make the payment under the decree. Under such circumstances,
the observations that Hon'ble High Court of Delhi in the case of
V.K.Uppal Vs. M/s.Akshay Internatinal Pvt.Ltd. are relevant. It is
observed therein that the decree is against the company and the
executing court cannot execute the decree against any one other
than the judgment/debtor or against the assets or properties of
anyone other than the judgment/debtor. It is observed further that
the identity of the Director or a share holder of a company is
distinct from that of the company.
7. It is further necessary to observe that the applicant has
filed certain documents in support of her claim of ownership as to
the flat. On the other hand, the decree holder has not filed or
called upon any documents of said flat No.3A, Bhagyodaya
Building, J.V.Road, Ghatkopar(W), Mumbai where the suit flat
situates. The document filed by the applicant consist of tax receipts
in respect of the flat as well as the electricity bill which stands in
the name of the applicant and not that of the judgmentdebtor
company or husband of the applicant. It is further relevant to note
that in view of the objection by the decree holder by his affidavit in
reply, the applicant has filed the copies of agreement and other
entries in respect of the flat. The agreement dated 11/04/1979
reveals that the parentsinlaw of the applicant have purchased the
flat whereas the share certificate in respect of the flat as issued by
the society reveals that the flat is transferred in the name of her
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motherinlaw and herself. The certificate issued by the society on
11/04/2019 thereby certifying the applicant to be the owner of the
flat is also placed on the record. The death certificate of father in
law is also placed on record. Such entries prima facie reveal that
the flat was standing in the name of mother in law and husband of
the applicant by entry dated 01/01/1996. However, the sane was
transferred in the name of applicant and her mother in law by
entry dated 14/08/2007. The entry reveals further that the mother
in law has died on 096/02/2011, however the share certificate
does not reveal that name of mother in law is replaced by any
other legal heir or the husband of applicant himself after
06/02/2011 in record of the society. As such, it is apparent that
the flat prima facie stands in the name of the applicant alone. The
applicant has also relied on the observations by Hon'ble High
Court, Bombay in the case of Belarmina Gowda Vs. Ranjith Nath
Civil Revision Application No.26 of 2018 dated 04/04/2019
whereby, it is observed that when the decree is against the
company, it cannot be executed against any individual being a
director or a person responsible for conducting of the business of
the company.
8. In view of the discussion as above, the applicant has
made out her prima facie title to the flat sought to be attached,
whereas the decree holder has not adduced any prima facie
material to believe that the defendant company/judgmentdebtor
has any right, title or interest in the flat. Merely mentioning the
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address of such flat as the office address of the
company/judgmentdebtor would not by itself conferr title of such
property on such occupant. Moresover, though it is argued that
the director or the company who is husband of the applicant had
been in connivance with the applicant whereby the flat is made to
stand in her name, the fact would remain that there is nothing at
this stage to believe that the flat under attachment is belonging to
the defendant/company.
9. Under such circumstances, it is made out by the
applicant that the attachment of flat is not proper as property does
not stand in the name of judgment/debtor and the
judgment/debtor is not made out to have any right, title or interest
in said flat. Hence, the order as follows:
ORDER
1. Chamber summons No.552/2019 is allowed.
2. The order dated 12/12/2018 for attachment of the flat
No.3A,Bhagyodaya building, J.V.Road, Ghatkopar(W), Mumbai and
movables therein issued under Order 21 Rule 54 and 43 of CPC is
hereby set aside.
3. Chamber summons No.552/2019 stand disposed of accordingly.
(SHAYANA V PATIL )
Judge,
Dated : 15/06/2019 City Civil Court, Gr. Mumbai
Dictated on : 15/06/2019
Transcribed on : 15/06/2019
Signed on : 26/06/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
27/06/2019 11.40p.m. Mrs.J.V.Pawar
Name of the Judge (With Court
Room No.)
HHJ Smt.Shayana Patil(CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
15/06/2019
JUDGEMENT /ORDER signed by
P.O. on
26/06/2019
JUDGEMENT /ORDER uploaded
on
27/06/2019
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