Final Order 1

Order Details: Chamber summons
Pdf Text: :1: Ch. Sum. No.712/2019 in Execution Appln. No.885/2013
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 712 OF 2019
CNR NO.: MHCC010036642019
IN
EXECUTION APPLICATION NO. 885 OF 2013
(HIGH COURT CHAMBER SUMMONS NO.1456 OF 2006)
IN
(HIGH COURT EXECUTION APPLICATION NO. 416 OF 2005)
IN
(HIGH COURT SUMMARY SUIT NO. 3986 OF 2001)
Bharat Petrolium Corporation Ltd. ]...Plaintiff
V/s
Mahesh M. Gadhia ]...Defendant
AND
Jyoti M. Gadhia ]...Applicant
Appearances:
Advocate Mr. Twinkle for the plaintiff.
Advocate Mr. Ajit J. Shobhawat for the applicant.
None for the defendant.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 21st DECEMBER, 2019.
ORAL ORDER
This is a Chamber Summons filed by applicant praying to raise
attachment levied on flat allegedly owned by her.
2. Applicant has contended that the flat premises being flat No.41,
Shreeji Vihar, Building No.1, 4th floor, S.V. Road, opposite M.T.N.L.
Kandivali (West), Mumbai – 400 067 (hereinafter referred to as
“disputed flat”) is her self acquired property and it is not acquired from
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income of her husband i.e. defendant in the suit.
3. Applicant has further stated that she is carrying on business of
fashion designing and taking part time tuition. She has further stated
that she purchased disputed flat by Agreement for Sale dated 2nd
August, 2000.
4. She has further stated that she became member of the Society i.e.
Jai Shreeji Vihar Coop. Hsg. Society Ltd. of flat owner's of the building
where disputed flats situated. She has further stated that she is
receiving the maintenance bills in respect of the flat and making its
payment regularly.
5. She has further stated that her husband has not invested or
contributed any amount towards disputed flat. She has further stated
that no Notice was given to her as to how attachment can be levied on
disputed flat.
6. Plaintiff filed reply and stated that he does not admit that the
applicant is carrying on business of fashion designing or giving tuition.
Plaintiff has stated that applicant has not disclosed her annual income
from the alleged business of fashion designing and giving tuitions and
suppressed her Books of Accounts and the annual Returns that she may
have filed with the Income Tax Authorities. Plaintiff has further stated
that payment to the society against the maintenance is paid in cash,
therefore, said receipt produced by applicant does not establish that the
payment is made out of the applicant's own funds.
7. Plaintiff has stated that applicant has not stated that she was
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paying maintenance from the date of purchase of the flat in 2000 and
hence, it appears that in any event, payment towards maintenance from
2000 to 2003 was not paid by the applicant. Plaintiff has further stated
that as per ByeLaw 146 of the Societies ByeLaws framed under the
Maharashtra Cooperative Societies Act, the Society is not permitted to
accept any payment in cash from its member, above certain limits.
Despite thereof, the amount as large as Rs.3,495/ is received by the
Society in cash in September, 2006. Plaintiff has denied all material
contentions of applicant.
8. Plaintiff has stated that the suit transactions relate to September
to December, 1998 i.e. almost two years before the flat was purchased.
Plaintiff has stated that affidavit dated 29th November, 2006 has been
filed on behalf of the State Bank of Mysore in these execution
proceedings, stating that the defendant is a “chronic defaulter” and
owes to the said Bank a sum of Rs.17,37,124.48 and therefore, it is
possible that the defendant knowing his financial liabilities had
arranged his affairs in such a manner that although the said Flat was
purchased from his funds, the Flat purchase Agreement was executed
in the name of the applicant, who is his wife. He has further stated that
applicant has not produced any document in support of her contention
that the attached movables or any of them belong to her.
9. Plaintiff has further stated that it is hardly believable that the
defendant, being husband of the applicant did not disclose the
attachment or a copy of the Warrant of Attachment served on him for
the applicant. Plaintiff has further stated that the Agreement for
purchase of the flat was stamped on 31st July, 2000 and allegedly
executed on 2nd August, 2000 but the entire payment towards its
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consideration was allegedly made by three installments in October
November, 1998 and by two installments on 18th June, and 5th July,
2000 i.e. long before execution of the agreement. It can hardly be
believed that the applicant made said full payment prior to the
execution of the agreement and according to her there is no other
document executed by her. Plaintiff has stated that thee circumstances
raise doubt on the contentions raised by applicant about the ownership
of the flat and prayed for rejection of the Chamber Summons.
10. To decide this Chamber Summons, following points arises for
determination and their answers followed by reasons are as stated
below:
Sr. No. POINTS FINDINGS
1. Whether applicant proves that the
attached disputed flat was purchased
by her own income ?
...In the negative.
2. Whether applicant is entitled for the
relief claimed in Chamber
Summons ?
…In the negative.
3. What order ? ...As per the final order.
REASONS
AS TO POINT NOS. 1 And 2 :
11. As per order passed dated 8th December, 2008 in this Chamber
Summons, applicant was allowed to lead evidence to prove her
contentions. In the original Sale Agreement it is stated that the payment
of Rs.16,50,000/ for purchasing the attached flat, is made from
Oriental Bank of Commerce and H.D.F.C., Malad (West), Branch. About
Rs.2,00,000/ have been paid from the Oriental Bank of Commerce
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Account, in 1998. It is contended by applicant that she has independent
source of income, viz. Fashion designing/tuitions and coaching.
12. It is not in dispute that applicant is wife of defendant against
whom decree is passed. It is stated in Agreement for Sale (Exh.11) that,
“The Purchaser” i.e. applicant has paid to “ The Vendor” the full sum of
Rs.16,50,000/ before the execution of the Agreement Exh.11 dated 2 nd
August, 2000. The details of the payment stated are as under:
Date Chq. No. Chq. Drawn On Amount
20.10.1998 398924 Oriental Bank of Commerce Rs.1,50,000.00
02.11.1998 421932 Borivali (west) Branch Rs. 50,000.00
02.11.1998 421031 ….............. “................” Rs. 50,000.00
18.06.2000 001159 H D F C Malad (West) (P.O.) Rs.5,00,000.00
05.07.2000 001250 H D F C Malad (West) (P.O.) Rs.9,00,000.00
Total Rs. Sixteen Lakhs Fifty Thousand Only Rs.16,50,000.00
13. Applicant has produced original receipt of payment made to the
society of the date 2003 to 2008. As contended by plaintiff, there are no
receipt of Society maintenance paid from the year 2000 upto April 2003
by applicant.
14. It is relevant to see that flat is purchased in August, 2000 and
consideration is paid between the period 1998 to July 2000. Therefore,
applicant has to show that she had such source of income during the
period October, 1998 to July, 2000 or before that.
15. Applicant has produced her Bank Account Statement of HDFC
Bank showing that the payment were made by cheque. She stated that
they were duly acknowledged by Vendor. She has stated that the said
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Bank Account was her independent account and personally belongs to
her.
16. It appears such Bank Account Statements Exh.10 shows
withdrawal of Rs.5,00,000/ in June and withdrawal of Rs.9,00,000/ in
July, 2000. Applicant has admitted in her crossexamination that on 5 th
July, 2000 she deposited an amount of Rs.9,00,000/ in cash by
separate payments. It appears, such amounts are shown as part
consideration given by applicant. It appears applicant has not produced
bank account for the relevant period 1998 to June, 2000. The Bank
Account only shows that such amounts were deposited in the Account
of applicant. It does not show that such money was earned by her.
17. Applicant has further stated that some of the monies deposited in
Bank Account were from her tuition earnings, some from her fashion
designing and some from the sale of gold ornaments. She has further
stated that she deposited an amount of Rs.2,23,492/ from the sale of
ornaments.
18. Applicant has stated that she is not aware of the name of the
institution from where she completed the fashion design course. She
has further stated that she is not having a certificate of completion. It
shows that there is no certificate to show that applicant had knowledge
of fashion designing. Applicant has stated that she does her work at
home by collecting orders from customers. She has further stated that
she is not having any records for the work of fashion designing that she
did between 1998 and 2001.
19. She has stated that she takes batches of students for tuition. She
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stated that she impart tuitions to the students from the SSC in all
subjects. She has stated that between 1998 to 2001 she had more than
30 students. She has stated that she is not having any records of fees
taken by her.
20. Her all these statements shows that applicant is not having any
documentary evidence to show that she had earnings from taking
tuition and doing work of fashion designing. No oral evidence of any
witnesses given proving that applicant was taking tuition and doing
fashion designing work before or upto the year 2000.
21. Applicant has stated in her crossexamination that her monthly
expenditure in 1990 was Rs.20,000/ and after the year 2000, her
monthly expenditure was between Rs.22,000/ to 25,000/. She stated
that this includes the expenditure incurred by her for her business. She
has stated that the entire household expenditure was borned by her
during 1990. Her such Statement shows that in 1990, her expenditure
was between Rs.20,000/ and she was also bearing household
expenditure.
22. Applicant has adduced her IncomeTax Returns for the year 2005
2006 and 20062007 and also Income Tax Challan for the year 2007
2008. In her crossexamination, her attention was drawn to Exhibit 1 to
the affidavit in rejoinder dated 18/26.11.2008 in Chamber Summons
No. 1456 of 2006. She has stated that this is the same documents as the
Income Tax Returns for the Assessment Year, 20042005 produced by
her. She admitted that the words 'new case' appear at the top of such
document. She has stated that she was frustrated and anxious as to why
her previous Chartered Accountant has not filed any returns. Hence, she
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contacted with her present Chartered Accountant who filed the returns.
She has stated that earlier she had taken the help of Mr. Rugani, a
Chartered Accountant at Malad (West). The fact that the Incometax
returns of the Assessment Year 20042005 is having the wording 'new
case' on its top and that no previous Income Tax Returns filed by
applicant shows that applicant has not filed Income Tax Returns
previously and started filing Income Tax Returns from the Assessment
Year 20052006.
23. Applicant has stated in her cross examination that she has income
of Rs.2 Lakhs from her business annually. Though applicant alleges that
she had such income by doing business of fashion designing and taking
tuition batches, no income tax returns filed by her for the relevant
period upto year 2000. There is no evidence in the form of income tax
returns showing that applicant had business of fashion designing and
was taking tuition.
24. As per the Sale Agreement, from Oriental Bank applicant gave
cheques of Rs.2,00,000/ as consideration for purchasing disputed flat.
Applicant has stated that the Oriental Bank Account was in her name.
She has stated that she does not remember when she opened the Bank
Account with Oriental Bank. She has stated that she does not operate
the Oriental Account which was closed 7 or 8 years ago. Applicant has
failed to lead any evidence to show that such Bank Account stood in her
name.
25. Applicant has stated in her crossexamination that she produced
the receipt which were given to her by Jewellers provided to her on sale
of jewellery at that time. Plaintiff has contended that these are not sale
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receipts. Applicant has not lead evidence of alleged Jewellers proving
that on such particular dates i.e. 1, 2 and 3 July, 2000 she sold her
jewellery to Haribhai Art Jewellers. Advocate for the plaintiff contended
that in the Income Tax Returns adduced by applicant there are no entry
regarding bangles or gold ornaments sold. It appears, in the income tax
returns also there is no entry about sell of ornaments to Haribhai Art
Jwellers. Therefore, applicant failed to prove that money secured by
selling ornaments.
26. Applicant has stated in her crossexamination that Udaybhai gave
her an amount of Rs.2,25,000/ and she has not repaid the same. She
has stated that he stays at Santacruz and he paid her such amount in
cash. But there are her bare statement. No evidence of alleged Udaybhai
given by applicant. Therefore, applicant failed to prove that she was
given money by Udaybhai.
27. As discussed above, applicant has failed to lead cogent and
reliable evidence to show that in the relevant period i.e. before 2000
she was doing business of fashion designing and taking tuition and had
her income from the same. Therefore, she has failed to prove that the
attached flat was purchased from her own income.
28. Applicant admitted that prior to 2000, she was residing in a joint
family house at Borivali (W) and it was tenanted premises. She has
further stated that the tenancy stood in the name of the elder brother of
her husband. She has further stated that her husband had interest in the
tenancy. She has further stated that the property was sold after 2000.
She has further stated that since 2000, she is residing in the disputed
flat which with her husband. It raises possibilities that defendant i.e. her
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husband got in lieu of tenancy, money. Applicant stated in cross
examination that her husband was doing business of oil. These
circumstances show that attached flat purchased from income of
applicant's husband but in the name of applicant.
29. Ld. Advocate for the plaintiff cited judgment of the Hon'ble High
Court of Allahabad in case of Kailash Pati Sahai vs. Jagarnath Rai,
1935 SCC OnLine All 201 : AIR 1935 All 884, in which it is held that,
the finding in favour of the benami transaction was based on some
evidence and is binding on Sheo Govind. Sheo Govind was the real
purchaser at the auctionsale to the extent of 1/3rd, and that the plaintiff
respondent is entitled to a decree for a declaration that Sheo Govind's
1/3rd share in the property named in the plaint can be attached and sold
in execution of his decree”. In the case in hand, also though Sale Deed is
registered in the name of applicant, she has failed to prove that the
attached flat was purchased from her income. From the circumstances
that she is wife of defendant and she and defendant staying together
upto purchasing disputed flat and has stated that her husband was
doing business of oil and had interest in tenancy and such tenanted
premises sold proves that, the attached flat was purchased from the
income of defendant. Therefore, such flat is liable to be sold attached
and there are no reasons to raise such attachment. Hence, this case law
is squarely applicable to the case in hand.
30. Ld. Advocate for the plaintiff cited another judgment of Hon'ble
High Court in case of Iqbal Begum, wife of R.A. Khaiyam and others
v. The Tax Recovery Officer and Tahsildar, Wallajah and another, in
which it is held that, “the question of benami would, therefore, be
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relevant and contemplated in an enquiry in a claim petition. This
properties held benami for the defaulter or held by any person in trust for
the benamidar or on his behalf, are liable for attachment and sale under
S. 222 read with the second Schedule to the Act”. In the case in hand also
though Sale Deed is registered in the name of applicant, but she has
failed to prove that the disputed flat purchased by her own income.
Plaintiff has proved that the flat was purchased by defendant's income
and there are no reason to raise attachment of the flat. Hence, this case
law is applicable to case in hand.
31. As discussed above, though applicant contends that upto year
2000 she was having earnings from fashion designing and tuition
earnings. But she has neither lead documentary evidence nor oral
evidence of any witness proving that she had income from fashion
designing and tuition in the relevant period i.e. before 2000. Applicant
has failed to prove that disputed flat was purchased from her own
income. Therefore, applicant has failed to prove that she is entitled to
get attachment of the flat raised. Hence, answer point nos. 1 and 2 in
the negative and pass following order.
ORDER
Chamber Summons No.712 of 2019 stands rejected.
(SONALI P. AGARWAL)
Judge,
Date: 21.12.2019. City Civil Court,
Gr. Bombay.
Dictated on : 21.12.2019
Transcribed on : 21.12.2019
Signed on : 21.12.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04.01.2020 At 02:53 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
21.12.2019
Judgment/Order signed by P.O. on 21.12.2019
Judgment/Order uploaded on 04.01.2020
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