Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010072112019
CNR NO. MHCC010072112019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2626 OF 2019
IN
EXECUTION APPLICATION NO.418 OF 2012
IN
DELHI C.S. (O.S.) NO.17 OF 2008
Ms. Rene Singh & Ors. ] … Plaintiffs
V/s.
M/s. Katha Mediatix India Ltd. ] ... Defendant
And
Mr. Navneet K. Kabra ] ... Applicant
Appearances :-
Ld. Adv. Mr. Devendra Sharma for plaintiff.
Ld. Adv. Mr. Abhijeet Rane for defendant.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 13th January, 2022
ORAL ORDER
1. This Notice of Motion is filed by Mr. Navneet K. Kabra
resident of Mumbai. It is his submission that in view of order in
Original C.S. (O.S) No.17 of 2018 dated 10.12.2009, the decree passed
by the Hon’ble Delhi Court, the said Execution is pending in this Court.
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In that Execution the Court has attached property situated at Chandra
Gupta Estate, 1st floor, New Link Road, Andheri (West), Mumbai – 400
053. But the said property is belongs to the present applicant who has
raised objection for attachment. He submitted that initially by
Agreement dated 21.10.1993 the property was purchased by Mr. Asif
Merchant, who was Builder and Developer. Thereafter, Mr. Asif
Merchant by Deed of Transfer, transferred the said property on
14.02.2002 to Mr. Krishnendu P. Thereafter, Mr. Krishnendu P.
transferred the said property to present applicant on 13.05.2013. The
present applicant has paid consideration and purchased the said
property by registered sale deed and thereafter all rights and title and
interest in respect of the property are transferred in favour of applicant.
The builder and Developer instead of forming a Co-Operative Housing
Society, made a Private Limited Company in the name of Chandra
Gupta Estate Private Limited and made premises owners/Unit holders
as Shareholders and issued their Share Certificates. Accordingly 10
equity shares were allotted to Mr. Asif Merchant and those shares were
registered under Members Registered Folio No.21. Thereafter, the said
Company had issued a Share Certificate No.29 bearing Distinctive
Nos.1961 to 1970 dated 27.08.1994. The said Share Certificates are
also transferred in the name of present applicant. From the date of
purchase, the present applicant is in use and occupation of the
premises. He is paying maintenance as well as Municipal Taxes. He
further submitted that someone from the office of Sheriff of Bombay
repeatedly visited his premises. That Sheriff was inquired about the
defendant. The present applicant stated him that the said property is
belongs to him and he is not concerned with the defendant, but even
then the bailiff left the warrant of attachment on the handle of the door
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and submitted that he has to leave the papers and submit the report.
Thereafter, the applicant appeared on record and filed this Notice of
Motion.
2. It is one of the submission of applicant that the defendant
Company in original suit has already been wind up by the Hon’ble High
Court by order dated 04.12.2014, in Company Petition No.365 of 2013.
Now liquidator is appointed for the future affairs. In such
circumstances it is necessary for the plaintiff to seek permission from
liquidator and Hon’ble High Court for attachment of the said property.
He further submitted that as per mandatory provision of Order 21 Rule
13 of the Code of Civil Procedure the decree holder has failed to show
the interest of Judgment Debtors in the attached property, with all these
grounds the applicant filed this Notice of Motion under Order 21 Rule
58 and requested to release property from attachment.
3. The Decree holder filed reply and strongly opposed the
Notice of Motion. It is the submission of Decree holder that the
property transferred in the name of Mr. Asif Merchant and thereafter, in
the name of Mr. Krushnendu P. Sen is not proper transferred in the eyes
of law. Because under Section 54 of the Transfer of Property Act, for
transfer of property value more than Rs.100/- needs to be transferred
by Registered Deed. But the transferred of property from Chandragupta
Estate Pvt. Ltd. Company to Mr. Asif Merchant further to Mr.
Krushnendu P. Sen is not transferred in the eyes of law. Therefore, the
transferred of property in the name of present applicant though it may
be by Registered Deed but that cannot be give rights and title to the
present applicant. The Decree holder further submitted that he was not
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party in the Company Petition No.365 of 2013 therefore he is not aware
about the matter and so he do not want to comment on that point.
However, the Decree Holder is having decree in his favour, the property
is subject to attachment. The Sheriff has prepared report in presence of
Officer of the defendant Company and therefore the statement of the
present applicant that defendant Company is not owner of the property
is baseless. Actually the defendant Company is owner of the property
therefore the Decree Holder has strong objection to allow the Notice of
Motion.
4. The present applicant has filed rejoinder to the Notice of
Motion. In that rejoinder he has raised objection about the
maintainability of attachment. He has shown relevant Sections of the
Companies Act and submitted that now the Hon’ble High Court has
appointed liquidator therefore without permission from the Hon’ble
High Court this Court has no right and jurisdiction to attach the
property.
5. The present applicant has produced the relevant Deeds of
Transferred alongwith Notice of Motion. He has also produced Share
Certificate. The Deed produced by him dated 13.05.2013 shows that
Mr. Krushnendu P. Sen has sold property to present applicant by
Registered Sale Deed and on payment of consideration, accordingly the
Share Certificates are also transferred in the name of present applicant.
He has also produced copy of no objection of the Society to show that
the present applicant has paid all dues of the property to the Society.
From Sale Deed it appears that the present applicant has purchased
property by consideration in the year 2013. The plaintiff / Decree
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Holder has filed suit in the year 2018 i.e. Suit No.17 of 2018 in Delhi
Court, means this applicant has purchased property before filing suit.
However, on perusal of Execution Application, it appears that originally
the Decree was money decree and in prayer Clause the Decree Holder
has sought attachment of debt under Rule 46. He has sought
attachment of Account No.020010200011626 with Andheri Royal and
accord with UTI Bank Ltd. He has also sought attachment of movable
and immovable property belongs to Judgment Debtor. In the prayer
Clause the Decree holder has not mentioned the attachment of this
property. Therefore, since inception this property is not subject of
attachment. On perusal of Roznama in the proceeding it appears that
by Roznama dated 17.02.2015 the Court has raised quiry and asked him
to verify about the title of the property. Considering this Roznama the
present applicant has taken objection of Order 21 Rule 13 of the Code
of Civil Procedure.
6. Under Order 21 Rule 13 it is necessary for Decree Holder to
satisfy about title, interest and share of the Judgment Debtor in
attached immovable property. Even at the time of arguments the
Learned Advocate of Decree Holder submitted that the property is
belongs to defendant Company. In original suit the defendant Company
is M/s. Katha Mediatix India Ltd. The Hon’ble High Court has ordered
to wound up said Company on 04.12.2014 and thereafter, liquidator
was appointed.
7. It is the submission of Decree Holder that he was not party
in that Petition. He is not aware about that litigation therefore, he has
avoided to comment further more. For the sake of movement if it is
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presumed that as the decree holder was not party and therefore, he was
not aware about the Company Petition. But this fact is brought into the
notice of Decree Holder by present applicant when he has tendered
Notice of Motion in the year 2019. From 2019 the present Decree
holder is acquianted about wound up of defendant Company even
thereafter he has not taken any steps. On the contrary he is just
resisting present Notice of Motion.
8. If the defendant Company has been wound up by Hon’ble
High Court, then the Decree Holder needs to take further action as per
order of the Hon’ble High Court. Roznama shows that this property is
subject to attachment for compliance of Decree. The said property is
not mentioned by Decree Holder in execution application. However,
under Order 21 Rule 13 he has also not satisfied to the Court about the
right, title and interest of Judgment Debtor in the attached property.
On the contrary the present applicant has produced Registered Sale
Deed. The earlier owners have transferred by unregistered documents
or not that cannot be determined here and it is not the question for
determination. But prima facie from the registered documents it
appears that the present applicant involved his right and interest in the
attached property. He has purchased that property by registered Sale
Deed. The present applicant is claiming to release attachment because
he is owner of the property. The decree holder fails to show interest of
the Judgment Debtor in the property. In such circumstances, if the
present applicant has bonafide right and interest in the property then
certainly the property is liable to be released from attachment under
Order 21 Rule 58 of the CPC. The one more ground from the Decree
Holder that without intervention application the present applicant is not
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entitled to file Notice of Motion. The intervention application can be
filed under Order 1 of the Code of Civil Procedure with the permission
of Court. If that person has direct interest in subject question. Here the
present applicant has direct interest. He is prima facie registered owner
of the property, the property is in his possession, there is no document
to show interest of Judgment Debtor in that property. Therefore,
though no intervention application is filed but certainly it will not effect
the right of applicant to file or to tender Notice of Motion before the
Court. In such circumstances, the property is liable to be released from
attachment. Therefore, the Notie of Motion is made absolute. Hence I,
proceed to pass the following order:
ORDER
1. Notice of Motion no. 2626 of 2019 is made absolute.
2. Attached property Chandra Gupta Estate, 1st floor, New Link Road,
Andheri (West), Mumbai – 400 053 is release from attachment.
3. Notice of Motion is disposed of accordingly.
(C. V. Patil)
Ad-hoc Judge,
City Civil Court,
Date: 13.01.2022 Gr.Mumbai.
Dictated on : 13.01.2022
Typed on : 17.01.2022
Corrected on:18.01.2022
Signed on : 25.01.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
25/01/2022 04.10 p.m. V. U. Pawar
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR 15)
Date of Pronouncement of JUDGEMENT
/ORDER
13/01/2022
JUDGEMENT /ORDER signed by P.O. on 25/01/2022
JUDGEMENT /ORDER uploaded on 25/01/2022
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