Final Order 1

Order Details: Chamber summons
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
CHAMBER SUMMONS NO.910 OF 2019
IN
EXECUTION APPLICATION NO.763 OF 2013
IN
S.C. SUIT NO.3877 OF 2008
Abdul Hameed Abdul Gani Shaikh ..Plaintiff
V/s
Mr.Amjad Ali Shafi Khan ..Defendant
And
Mr.Salim Mohammed Khan @ Salim Ali Khan ..Applicant
Ld. advocate Mehul Shah for Decree holder
Ld. advocate Ravindra Singh for Judgment debtor
Ld. advocate O.P.Tiwari for applicant
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 11/07/2019
ORAL ORDER
1. This is an application filed on behalf of
applicant/objector interlia for the reliefs of raising
attachment of flat no.A/22/301, 3rd floor, AlMakkah
Cooperative Housing Society Ltd, situated at Millat
Nagar, Andheri(West), Mumbai400 053.
(hereinafter referred to as said flat).
2. The applicant contended that he is in use and
occupation of the suit flat. He has filed RAD Suit
no.165 of 2019 before the Small Causes Court
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claiming his right therein and therefore filed
application for urgent relief. He claims that he has
noticed the warrant of possession lying outside the
suit flat. He claims to be in use and occupation of
the suit flat. He would submit that despite the same,
the said suit flat sought to be attached by the Decree
Holder (hereinafter referred to as 'D.H.') and
Judgment debtor (hereinafter referred to as 'J.D.') in
collusion with each other. He claims to be the tenant
in respect of the suit flat and therefore by this
Chamber Summons seeks indulgence of this Court to
pass appropriate order to raise the attachment if any
levied upon the suit flat.
3. The J.D. did not oppose the chamber summons. Ld.
Counsel for the J.D. submitted that the Chamber
summons be allowed.
4. The chamber summons is opposed by the D.H. on
various grounds. The main ground of the objection is
that this chamber summons has been put forth to
delay and protract the execution of the decree. The
applicant has no interest or title of whatsoever nature
in the suit flat. He would submit that agreement of
leave and license dated 01/08/1998, 01/07/1999,
12/04/2001, 31/03/2003, 01/08/2005, 03/07/2008
provide that the judgment debtor as licensor and
have full control over the suit flat and therefore
applicant being the licensee cannot claim any
tenancy or title over the suit flat. The suit filed
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before the Small Causes Court is an attempt to
prevent the D.H. to take possession of the suit flat.
The J.D. has unsuccessfully challenged the decree
passed in the above suit before the Hon'ble Apex
Court. Except the agreement dated 03/07/2008 the
other agreements are not registered. The J.D. was
also one of the defendant in the case filed before
Small Causes Court but he choose not to file reply
and got order passed against him. The filing of the
suit before the Small Cause Court will not be a
ground for granting the reliefs to the applicant. The
J.D. filed written statement in suit no.1467 of 2008
and has specifically stated that the applicant is a
licensee, never stated that he created tenancy right in
favour of the applicant. He filed notice of motion
no.617 of 2015 for setting aside the decree wherein
he claims that he is in exclusive use and possession of
the suit flat. The J.D. preferred appeal from order
No.537 of 2015 of order dated 20/03/2015
dismissing notice of motion no.617 of 2015 wherein
the said appeal from order was disposed of by order
dated 20/03/2017 and the matter was remanded
back for rehearing. The said order also reflect the
statement of the J.D. that applicant is a licensee in
the suit flat. Further before City Civil Court at
Dindoshi, he has filed suit for a declaration that sale
deed dated 28/11/2014 executed by Deputy
Registrar conveying the suit flat in favour of D.H. and
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transfer of share certificate by society in favour of
D.H. was bad in law and not binding upon the J.D.
and for an order of injunction against the society
from acting upon the duplicate share certificate
issued. The entire plaint in the said suit is
completely silent about alleged tenancy rights of
applicant in the suit flat. The reply dated
05/02/2018 filed by the J.D. is completely silent
about alleged tenancy rights of applicant in the suit
flat. Even in the appeal from order bearing no.3487
of 2018 preferred by him, no such stand was taken.
Further in the SLP bearing No.4217/2019 before the
Hon'ble Supreme Court he has not taken any stand.
Therefore at this juncture, it can be ascertained that
the applicant is stooge of the J.D. Hence, prayed for
rejecting the chamber summons.
5. Ld. Counsel for the D.H. has drawn the attention on
various agreements of leave and license. He pointed
out leave and license agreement dated 01/08/1998
which is for the period 01/08/1998 to 30/06/1999
wherein it is clear that the licensor shall be deemed
to have the ultimate control and full control of
possession of the suit flat and the licensee shall not
claim any rights, by way of subtenancy or any other
rights in any manner whatsoever in the said flat
premises. Thereafter the agreement was from
01/07/1999 to 31/05/2000. The said agreement
does not show as to who is the purchaser of the
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stamp paper. The license agreement for the period
01/06/2000 to 30/04/2001 is between the J.D. and
one Smt. Nargis Khan, as to how it is connected with
the applicant is not pointed out. Further the leave
and license agreement for the period 01/05/2001 to
31/03/2002 appears to be between applicant and
J.D. wherein also the recital of ultimate control of
the J.D. Further the leave and license agreement
dated 31/03/2003 is from 01/04/2003 to
29/02/2004 is between applicant and the J.D. The
same recital regarding possession is in the said
agreement. Then again the leave and license
agreement dated 01/08/2005 was executed for the
period 01/08/2005 to 30/06/2006. The recitals are
almost same. After the expiry of the said agreement
in the year 2006, the last agreement which appears
to have been made was on 03/07/2008 for the
period 31/05/2008 till 30/04/2009. The last
agreement is a registered agreement but thereafter
there is nothing to show that there was any
agreement. The applicant has filed various
documents such as passport, Aadhar card wherein
the address is shown in respect of the suit flat but
merely showing the correspondence address as that
of the suit flat does not suggest the exclusive
possession of the applicant or accrual of any right in
favour of the applicant. The agreement dated
01/08/2005 expired on 30/06/2006. Thereafter the
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agreement for leave and license was made on
03/07/2008. It is pointed out that ad interim
injunction was granted against the defendant which
was subsequently confirmed. Inspite of the same, the
leave and license agreement was executed by the
defendant with the applicant. It appears that it was
in the utter defiance of the order of the Hon'ble High
Court. The said agreement for leave and license on
03/07/2008 is void as the same was executed after
the interim order of Hon'ble High Court whereby the
defendant was restrained from creating third party
interest in the said flat. Therefore, the applicant
cannot claim any right on the strength of the said
leave and license agreement.
6. The stand of the applicant in the rejoinder is that
judgment debtor and decree holder are acting in
collusion with each other. Further the submission is
that the recitals in the leave and license agreement,
would not be sufficient to restrain applicant from
claiming any tenancy or subtenancy right as the
agreement was one sided and without the
consultation of applicant. Therefore same can not be
considered. He placed reliance upon ratio laid down
in the judgment of Hon'ble Supreme Court in the
case of Pioneer Urban Land & Infrastructure Ltd
V/s Govindan Raghavan and ors, MANU /SC /
0463/2019. The stand of the applicant that the
recitals in the agreements are one sided. This stand
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is contradictory to his stand in paragraph (b) in the
RAD suit No.165/2019, where he has stated that, the
J.D. has agreed to let out the said premises to
plaintiff purely in his capacity as a tenant however,
since at the relevant point of time, the defendant
No.1 was unable to sign any such tenancy agreement,
a Leave and License agreement came to be signed
between the parties being agreement dated
01/08/1998. Had it been the case that the J.D.
agreed to let out the suit flat purely as a tenant to the
applicant then at the relevant time, J.D. would not
have executed leave and license agreement dated
01/08/1998. Thereafter various agreements were
executed. Even registered agreement for leave and
license was executed. So, at this stage it cannot be
said that one sided clauses in the agreement were
introduced. It is even not the stand of the applicant
in the suit filed by him. As pointed above, that D.H.
was litigating against original defendant i.e. J.D.
wherein the J.D. has not taken any stand that
applicant is a tenant. Further on the contrary, his
stand was that he was in possession of the suit flat.
7. Both SLPs came to be dismissed vide order dated
01/03/2019. The warrant of possession was issued
on 02/03/2019. The suit was filed by the applicant
before Small Causes Court on 07/03/2009. The
warrant of possession sought to be executed but the
applicant refused to vacate the suit flat and preferred
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this chamber summons on 22/04/2019. On perusal
of the record it appears that the possession warrant
for taking possession was taken out for execution on
27/01/2015. It appears from the bailiff report that
the family members of the J.D. alongwith the wife of
the applicant and others were present. The original
writ of possession was shown to them, the daughter
of the J.D. contacted the J.D.. The bailiff has also
explained the parties and requested for delivery of
possession. From the report it apparently suggest
that the families of the J.D. and applicant were
present and they were well aware about the
execution proceedings and earlier proceedings. The
applicant approaching the Court after a period of
four years and that too after dismissal of the SLPs by
the Hon'ble Apex Court is to be viewed seriously. It
apparently shows that applicant in collusion with the
J.D. has filed this Chamber summons. This Chamber
summons is nothing but abuse of process of law to
delay the execution of decree and deny the decree
holder from enjoying the fruits of decree. Hence,
chamber summons needs no consideration.
Accordingly, it is expedient to pass following order:
ORDER
1. Chamber Summons no. 910/19 stands rejected with cost
of Rs. 10,000/ to be deposited by the applicant within a
period of one month and same be paid to the Decree
Holder.
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2. In case the applicant failed to deposit the amount of
cost, the Decree Holder is at liberty to recover it from him.
3. Chamber Summons is disposed of accordingly.
11/07/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 11/07/2019
Transcribed on : 16/07/2019
Signed on : 05/08/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
05/08/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
11/07/2019
Judgment and order signed by P.O. 05/08/2019
Judgment/order uploaded on 05/08/2019
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