Final Order 1

Order Details: Chamber summons
Pdf Text: CS No.679/2018 ..1..
CNR No.MHCC010046072018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
CHAMBER SUMMONS NO.679 OF 2018
IN
EXECUTION APPLICATION NO.178 OF 2013
(High Court Execution Application No.1086 of 2012)
IN
HIGH COURT SUIT NO.1828 OF 2006
Jayant Dharshi Shah .. Applicant/Ori. Defendant
In the Matter of
Sushilaben Zaverchand Shah .. Plaintiff
Versus
Jayant Dharshi Shah .. Defendant
Mr. Kenia, advocate for plaintiff
Mr. Chetan Yadav, advocate for defendant
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 16th April, 2019
ORAL ORDER
Chamber summons is taken out seeking direction to
Commissioner for Taking Accounts, High Court for reauction of the suit
property as per provisions of Partition Act, 1893 r/w Bombay High
Court (Original side) Rules and costs of the same to be borne by parties
equally, with further direction to expedite the hearing of accounts filed
by the applicant/defendant in respect of the suit property.
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2. It is the contention of applicant/defendant that plaintiff had
filed the suit for partition of an immovable property i.e. all that piece
and parcel of land admeasuring 914 sq. Yards i.e. 764.22 sq.mtrs.
bearing Cadastral Survey No.2/209 of Parel Sewri Division, together
with buildings and structures thereon lying being and situate at Plot
No.5, Golanji Hill, King Edward Road (Aacharya Dondey Marg), Near
China Mills, Sewri, Mumbai (referred to as suit property). Hon'ble High
Court by order dated 12th June, 2009 decreed the suit. Thereafter,
plaintiff took out Execution Application No.178 of 2010 for execution of
said decree and also took out Chamber Summons No.1464 of 2010 for
appointment of Commissioner for taking accounts and sale of suit
property. This court in the said proceeding by order dated 17.12.2015
appointed Commissioner for taking account and sale of suit property by
way of auction. Mr. Kishore P. Parkar, Architect Valuer was appointed
to value the suit property who submitted his valuation report and after
his report, this Court has fixed the reserved price for auction. Terms and
conditions of sale and draft public notice were finalized on 23rd October,
2015 and it was also decided to publish the public notice in newspaper.
Before that, defendant has taken out Chamber Summons No.2105 of
2015 which has been partly allowed by this Court as per order dated
26.11.2015 allowing the defendant to participate in the public auction
and also directed him to deposit entire bid amount in the event he is the
highest bidder. On 02.12.2015, public auction was held and except
defendant and plaintiff, no one came forward for public auction. On the
same day, defendant offered his bid for Rs.1,11,00,000/ but his bid
was not accepted as the same was below the reserved price. Thereafter,
Commissioner directed parties to find buyers instead of publishing fresh
notice in newspaper and kept above matter on 6th January, 2016.
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3. On 06.01.2016, Ajit Nagda gave his offer of Rs.4,50,00,000/
and defendant gave offer for Rs.1,11,00,000/ however those offers
were found less than reserved price, same have been rejected.
Thereafter, at the instance of plaintiff's advocate matter was adjourned
to 09.02.2016, 12.04.2016 and 14.06.2016. As the offers received were
less than reserved price the same were rejected. Highest price received
from aforesaid offers was of Rs.4,60,08,270/ from Mr. Ajit Nagda, who
is brother in law of plaintiff's son. All offers made before Commissioner
by Mr. Ajit Nagada from 6th January, 2016 to 14th June, 2016 were
rejected being below valuation and reserved price.
4. It is contended that with a view to fetch more price for suit
property, it is just and necessary that Commissioner for Taking Accounts
be directed to reauction suit property as contemplated under Partition
Act, 1893.
5. It is further contended that applicant/defendant has filed
accounts from 2003 to 31st March, 2017 before the Commissioner for
Taking Account to determine the share of plaintiff, if any, in the rents,
profits, income received from suit property including income allegedly
earned from transfer of tenancies. He has been regularly filing accounts
with the Commissioner for Taking Accounts. Process of auction and
proceedings for taking account are independent procedure to each other
and have to proceed independently. So, Commissioner for Taking
Accounts may be directed to expeditiously decide issue of accounts filed
before him. Accordingly, applicant/defendant made prayers in above
terms.
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6. Plaintiff filed reply and contended that Commissioner for Taking
Account filed his report on 17.09.2016 before this Court seeking
direction in the matter and at the time of hearing on said report plaintiff
has submitted that she is agreeable to highest bid received by
Commissioner, however, defendant was not agreeable for the same and
insisted for another auction and he agreed to pay entire costs of second
public auction. So, matter was adjourned for compliance but instead of
filing affidavit of compliance defendant took out present chamber
summons. It is further contended that order dated 12.06.2009 passed
by Hon'ble High Court interalia provides that, “Both counsel states that
they shall negotiate to sell the suit property. The suit property shall be
sold to the purchaser obtained by either party. The higher offer
obtained by either party shall be accepted.” In above circumstance
highest offer of Shri Nagda be accepted but if defendant desire to re
auction then entire costs should be paid by him as agreed by him.
7. In rejoinder defendant contended that conduct of plaintiff for
not allowing the reauction is against spirit of provisions of law and
would defeat the object of holding the public auction. As plaintiff kept
insisting to sell property to Ajit Nagda, defendant's advocate had made
statement that defendant is agreeable to pay money for issuing public
notice provided plaintiff is agreeable to public auction. However,
plaintiff did not agree for reauction. Therefore, chamber summons has
been taken out.
8. Perused chamber summons, affidavit in support of it, reply of
plaintiff, rejoinder of defendant, report of Commissioner for Taking
Accounts dated 17.09.2016 and copy of order dated 17.12.2014 in
chamber summons No.1464/2010. Heard respective counsel for parties.
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9. From report of Commissioner for Taking Accounts, it is clear
that offers received from defendant and third party were below the
valuation as per valuation report of Shri Kishor Parkar and also as per
reserved price. So, both offers were rejected. It seems that efforts were
also made by the parties for getting the offer but as same were below
the valuation and also reserved price same were rejected. No doubt, in
terms of order dated 12.06.2009, both the counsel state that they shall
negotiate to sell suit property. It is further ordered that suit property
shall be sold to the purchaser obtained by either party. The higher offer
obtained by either party shall be accepted but plaintiff has taken out
chamber summons No.1464 of 2010 to appoint Court Commissioner for
taking account of suit property and to sell suit property by public
auction and said chamber summons was allowed and Court
Commissioner has been appointed for taking account of suit property
from defendant and to sell the suit property by public auction. As
already pointed above that offers received were less than valuation and
reserved price so those offers were rejected by Commissioner for Taking
Account. That being so, it amounts to postponement of sale for want of
sufficient bidding in view of Rule 301 of The Bombay City Civil &
Sessions Court Rules, 1948. (Also read rule 538 of The Bombay High
Court Rules). When such postponement is made then compliance has to
be made as per Rule 307 of said Rules. It provides that, “when a sale is
postponed, or when a resale is directed, unless otherwise ordered a
fresh notification shall be issued and published and the proceedings
down to the certificate of sale shall be similar to those on an original
sale.” (Also read rule 533 of The Bombay High Court Rules).
10. In above facts when offers which were received were less than
valuation and reserved price then it is desirable to provide one more
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chance/opportunity to fetch appropriate price relating to suit property.
For that purpose it is necessary to sell the suit property in fresh public
auction keeping in view provision of Rule 307 of The Bombay City Civil
& Sessions Court Rules, 1948. When defendant is in management of
suit property and he agreed to bear reauction charges, it is just to
direct the defendant to bear the charges in that regard at this stage and
same can be adjusted towards charges and expenses from sale proceeds.
11. So far as accounts of suit property is concerned; Commissioner
for Taking Accounts has already directed the parties to deposit tentative
amount of Rs.25,000/ each to meet professional charges of M/s.
Balsara and Co., Auditor. So, there is no need at present to issue
direction pertaining to the accounts as sought by defendant in present
chamber summons. Hence, pass following order.
ORDER
1. Chamber Summon No.679 of 2018 is partly allowed.
2. Commissioner for Taking Accounts, High Court, Bombay, to sell
the suit property by public auction.
3. Costs for public auction would be borne by defendant and same
amount be adjusted from sale proceeds and thereafter distribute
the sale proceeds in between plaintiff and defendant in equal
portion.
4. Accordingly, chamber summons stands disposed off.
(M. T. Asim)
Judge
Date : 16.04.2019 Gr. Bombay
Typed on : 16.04.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20.04.2019, 11.30 a.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
16.04.2019
JUDGMENT/ORDER signed by P.O.
on
18.04.2019
JUDGMENT/ORDER uploaded on 20.04.2019
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