Interim Order 1

Order Details: Other
Pdf Text: Order on Intervenor appln
in Exe Appln No.74 of 2019. 1
MHCC010027482019
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
INTERVENTION APPLICATION (EXH.E)
IN
EXECUTION APPLICATION NO. 74 of 2019.
IN
SUIT NO.1637 OF 2016
Dinesh H. Patel. ....Applicant.
IN THE MATTER BETWEEN.
M/s. Standard Retail Pvt. Ltd. ....Plaintiff.
(Decree Holder)
V/s.
1. M/s. Ravechi Steel. Pvt. Ltd. And Ors. ....Defendants.
(Judgment Debtors)
Appearances :-
Adv.A.M.Saraogi for DH/plaintiff.
None for JD/defendant.
Adv. Rupali Padgulekar for applicant.
Coram : Smt. Ashwini V. Kasture.
C.R. No.: 59.
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in Exe Appln No.74 of 2019. 2
Date : 08/10/2024.
ORDER
This is the application tendered by the applicant with
a prayer (i) to lift the attachment of movable and immovable properties
being attached by the bailiff under the Warrants of Attachment dated
08.04.2019 issued by this Court of immovable property i.e. flat No.301,
3rd Floor, plot -279, Saiya House, Narsi Natha Street, Bhat Bazar, Masjid
Chinchbunder, Mumbai 400 009, under Order XXI Rule 54 and 43 of the
Code of Civil Procedure, 1908. (ii) Hearing and final disposal of this
application, the execution proceedings initiated under Execution
Application No.74 of 2019 and attachment of immovable property i.e.
Flat No.301, 3rd Floor, plot -279, Saiya House, Narsi Natha Street, Bhat
Bazar, Masjid, Chinchbunder, Mumbai – 400 009 under Order XXI Rule
54 of the Code of Civil Procedure be stayed/set aside. (iii) Hearing and
final disposal of this application, the execution proceedings initiated
under Execution Application No.74 of 2019 and attachment of movable
properties being lying in Flat No.301, 3rd Floor, plot -279, Saiya
House,Narsi Natha Street, Bhat Bazar, Masjid Chinchbunder, Mumbai –
400 009 under Order XXI Rule 43 of Code of Civil Procedure be
stayed/set aside.
2. It is further submitted by the applicant that the plaintiff has
filed the above Summary Suit before this Court for an order and decree
that the Defendant to pay the plaintiff the sum of Rs.12,13,583/-(Rs.
Twelve Lakhs Thirteen Thousand and Five Hundred Eighty Three only)
together with further interest on the sum of Rs.12,13,583/-(Rs. Twelve
Lakhs Thirteen Thousand and Five Hundred Eighty Three only) at the
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rate of 12% from 21.02.2017 till the payment realization. By an ex-
parte Order and Judgment dated 01.11.2018 passed by this Court, the
Suit is decreed directing to the defendant to pay the plaintiff a sum of
Rs.12,13,583/- (Rs. Twelve Lakhs Thirteen Thousand and Five Hundred
Eighty Three only) for debt and interest and the sum of Rs.40,790.63
(Rs. Forty Thousand Seven Hundred Ninety and Sixty Three paise only)
towards the cost with further interest at the rate of 12% per annum on
principal amount a sum of Rs.12,13,583/- (Rs. Twelve Lakhs Thirteen
Thousand and Five Hundred Eighty Three only) from 21.02.2017 till its
realization. The plaintiffs have filed the Execution Application against
the defendants in this Court for issue of Warrant of Attachment of his
movable and immovable properties herein under Order XXI Rule 54 and
43 of CPC to the extent of the Decree and thereafter, to issue warrant of
Sale under Order XXI Rule 64 of CPC of his attached property. The
Registrar of this Court issued Warrant of Attachment of his movable and
immovable properties under Order XXL, Rule 43 and 54 of CPC. The
said warrant of attachment executed by the Sheriff of Mumbai and
attached his movable properties lying in his premises being flat No.301.
The plaintiffs have illegally and dishonesty obtained the Warrant of
Attachment of movable and immovable property being flat No.301,
which belongs to him and this Court has passed the Decree against the
defendants of being Flat No.301, 3rd Floor, Plot -279, Saiya House, Narsi
Natha Street, Bhat Nagar, Masjid, Chinchbunder, Mumbai – 400 009.
The plaintiff illegally and dishonesty attached his movable and
immovable property and also misleading this Court therefore, the Court
issued Warrant of Attachment against his movable and immovable
property.
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3. According to the applicant, he is the owner and in
possession of the premises situated at 301, 3rd Floor, plot -279, Saiya
House, Narsi Natha Street, Bhat Bazar, Masjid Chinchbunder, Mumbai –
400 009, by a Leave and License Agreement dated 01.01.2018 executed
between M. Dinesh H. Patel, as the Licensor and Ravechi Steel Pvt. Ltd.
through their Director Mr. Veer Ganesh Patel, as the Licensee. The said
Licensor allowed the said Licensee to use and occupy the upper floor of
the said premises i.e.301, 3rd Floor, plot -279, Saiya House, Narshi
Natha Street, Bhat Bazar, Masjid, Chinchbunder, Mumbai -400 009, on
leave and license basis for a period of 60 months commencing from
01.01.2018 till 31.12.2023 both days inclusive, to carry on their
business. The said Leave License Agreement is duly notarized on
17.07.2018. The electricity Bills is standing in his name. The society is
issuing the Maintenance Bill in his favour. The Order and decreed
dated 01.11.2018 passed by this Court is against the defendants. The
applicant is not the party to the said suit nor any decree has been
passed by this Court against him. The above said premises is in
exclusively in his possession and he is the owner of the said premises
therefore, it cannot be attached. Therefore, Attachment of movable and
immovable properties i.e. 301, 3rd Floor, plot -279, Saiya House, Narsi
Natha Street, Bhat Bazar, Masjid Chichbunder, Mumbai – 400 009 is
illegal and liable to set aside. The said attachment issued by this Court
is bad-in-law and the execution of the said Warrant of Attachment is
illegal same to be lifted. In the above circumstances, the applicant pray
that the present Chamber Summons (Intervention Application) be
allowed and set aside warrant of attachment.
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in Exe Appln No.74 of 2019. 5
4. The plaintiff filed affidavit in reply and submitted that the
plaintiffs had filed the original suit against the defendants and
thereafter, on the basis of the decree passed by the Court, present
Execution Application No. 74 of 2019 came to be filed. All the
allegations made in the affidavit in support of the said application are
denied by him. As per the Execution Application, the plaintiffs have
prayed for attachment of necessary properties of the defendants.
Accordingly, the properties have been attached and now, the present
application have been taken out as and by way of Intervention to the
same. A careful perusal of the Affidavit in support of the application and
more particularly, para -4 of the same shows that, it is sought to be
suggested that the applicant is the owner in respect of the movable and
immovable property and more particularly, the flat being Flat No.301,
3rd Floor, Saiya House, Narsinatha Street, Mumbai – 400 009. It is
further sought to be suggested that under a Leave and License
Agreement dated 1.1.2018 executed between the applicant and M/s
Ravechi Steel Pvt. Ltd. They have been put in possession in respect of
the premises in question. However, the affidavit indicates that some of
the documents are alleged to have been annexed however, in the copy
of the Affidavit in support of the application, none of those documents
have been annexed.
5. The plaintiff further states that the applicant claims that he
is residing in the said premises and at the same time in para -6, it is
sought to be suggested that the said premises have been given on Leave
and License basis. This by itself shows that the entire contention raised
in the said Affidavit in support are false on the face of it. In view of the
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said fact, necessary action deserves to be initiated against the deponent
of the affidavit and the said application deserves to be dismissed.
6. The Ld. Advocate for the plaintiff has filed additional
affidavit on behalf of the plaintiffs. It is the further contention of the Ld.
Advocate for the plaintiffs that in the absence of proper documents, he
had filed his short affidavit. Since none of the documents were served
upon plaintiff he has called upon the advocate for the applicant to
furnish the copy in respect thereof and accordingly, after furnishing the
copy and after going through the contents thereof he has filed his
additional affidavit.
7. It is submitted by the plaintiff that it is matter of record
that the applicant and more particularly Mr. Dinesh H. Patel is relying
upon a document purportedly to be Leave and License Agreement dated
01/01/2018 by which he claims that he has taken the said premises on
Leave and License basis. The present application have been taken out
by one Mr. Dinesh H. Patel. In para -6 of the said application it is
sought to be suggested that the applicant had given the said premises to
M/s. Ravechi Steel Pvt. Ltd. through Mr. Veer Ganesh Patel. The entire
attempt made by the applicant by presenting the present application is
nothing else but an attempt made by him to play fraud upon this Court.
The said agreement is not only unregistered document but at the same
time do not bear any serial No. of the notary public before whom it is
alleged to have been signed. The said agreement is purported dated
1/1/2018 however, the signature of the notary public mentions the date
of 17/7/2018 which speaks for itself and also shows the manner in
which an anti dated documents is sought to be created. The said
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agreement also shows that licensee is permitted to use and occupy the
said premises for a period of 24 months appearing in clause -I, however,
in this very agreement it is stated to be for 5 years. The said agreement
further indicates that the same has been signed only for an amount of
Rs. 5,000/- per month which is beyond imagination.
8. The said affidavit also indicates a bill issued by the society
for the period October 2018 to March 2019 i.e. for a period of 6 months
which means that as per the said bill the monthly outgoing are about
2500/- per month. It is beyond imagination that a person who prays
the outgoing of Rs.2500/- per month would let out the premises for a
total sum of Rs.5,000/-. The Clause -1 of the said agreement further
mentions “use and occupy the upper floor” which means that it cannot
be for the premises in question. In-fact the person named as a director
of the alleged licenses seems to be a family members of the applicant or
a non existing person or a non existing company and it is only because
of the said reason deserves to be the applicant.
9. Accordingly to the plaintiff, the alleged electricity bill is for
July 2019 and as per the agreement the same was required to be paid
by judgment debtor and if that being so, question arises how, it has
come in the hands of the present application. The maintenance bill
shows that the premises is situated in a regular property controlled by
the society. Moreover, if the applicant is the owner of the premises,
obviously, he must having some purchase document, share certificate
issued by the society etc. In view of the aforesaid facts, it is crystal clear
that the present applicant have been put by the judgment debtor with
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forged and fabricate document and as such the present application
taken out before this Court deserves to be dismissed.
10. Heard Ld. Advocate for the applicant and Ld. Advocate for
plaintiff/Decree Holder. After perusal of the roznama, it seems that the
Ld. Advocate for the defendant/Judgment Debtor did not appear since
long time. Therefore, this application is not contested by the
defendant.
11. The applicant has relied upon Leave and License
Agreement dated 01.01.2018. According to him on the basis of the said
agreement, the applicant has became the owner of the premises
attached by the Court. However, Leave and License Agreement is not
the title deed. The applicant can not be said to be the owner of the
property attached. From perusal of the document, only it can be said
that he is the possessor of the property attached. Under such
circumstances, only on the basis of agreement of Leave and License, the
attachment cannot be lifted. Hence, the following order :
ORDER
(i) The Intervention Application at Exh.H is hereby
rejected and disposed of accordingly.
(Dictated and Pronounced in Open Court).
(A.V. Kasture)
Judge,
City Civil and Sessions Court
Date.:08.10.2024 Greater Bombay (CR 59).
Declared on : 08.10.2024
Direct Typed on : 08.10.2024.
Checked on : 09.10.2024
Signed on : 10.10.2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
14.10.2024 at 12.25 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ Smt. A.V. Kasture(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 08.10.2024
Order signed by P.O. on 10.10.2024
order uploaded on 14.10.2024
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