Final Order 1

Order Details: Other
Pdf Text: ..1.. Misc. Application No.79/2019
MHCC010088262019
IN THE BOMBAY CITY CIVIL & SESSIONS COURT FOR GR MUMBAI
MISCELLANEOUS APPLICATION NO.79 OF 2019
IN
EXECUTION APPLICATION NO.502 OF 2017
(CNR NO.MHCC01-000753-2018)
IN
SUMMARY CIVIL SUIT NO.428 OF 2016 (DISPOSED OF)
(CNR NO.MHCC01-003099-2016)
Chirag Sevantilal Shah ).. Plaintiff/
Decree holder
Versus
Jiten Ramesh Shah )..Defendant/
Judgment debtor
AND
Ashish Yogesh Shah and another )..Applicants
Appearance :-
Mr. Giriraj, learned advocate for applicants.
Mr. Ramesh Jain, learned advocate for plaintiff/decree holder.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.15.
DATE : 02/08/2023.
ORDER
1 This chamber summons is taken out by Ashish Yogesh Shah
and Mukesh S. Doshi (Applicants) challenging the attachment of sale
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..2.. Misc. Application No.79/2019
order in the execution application No.502/2017. The plaintiff/decree
holder Chirag Shah has initiated an execution proceeding bearing
No.502/2017 against defendant/judgment debtor Jiten Shah for the
recovery of amount of Rs.79,41,303.62/- with future interest as per the
decree passed in Summary Civil Suit No.428/2016. In the course of
execution of decree, the property bearing flat No.3A and 3B situated on
3rd floor in Sambhav House, building, Veera Desai Road, Andheri (West)
has come to be attached and under the auction sale. When the
applicants noticed the notice of auction sale affixed on the main door of
these flats issued by the learned Commissioner for Taking Accounts,
High Court, Bombay, they realised that these flats are attached in the
execution application No.502/2017. Therefore, they have filed this
chamber summons for release of attachment of these flats. It is the
contention of the applicants that they are bonafide purchaser of the suit
flats which were attached and sold by the India Infoline Finance Limited
(hereinafter referred to as “IIFL”) as per the provision of Securitisation
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002. It is their contention that the suit flats were
mortgaged to the IIFL against the loan. Inconsequence of failure to
repay the loan, IIFL has attached these flats and put them under
auction. The applicants have purchased these flats under the auction
and allotment letter as issued in their favour, in this regard, they are
legally in possession of the flats. It cannot be now attached against the
recovery of defendant/judgment debtor. These flats have no concern
with the defendant/judgment debtor. It is property of applicants and
prayed for grant of chamber summons in terms of prayer clause.
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..3.. Misc. Application No.79/2019
2 The plaintiff/decree holder replied on the overleaf of the
chamber summons resisting the contentions that prior to the sale
agreement, the plaintiff has filed suit, hence, the chamber summons is
liable to be dismissed.
3 Heard.
4 It appears that the applicants have filed separate chamber
summons bearing No.1849/2019 having same relief. There cannot be
two simultaneous proceedings for the same relief. Already chamber
summons has been allowed raising the attachment of flats in question.
Therefore, there is no need to proceed with this miscellaneous
application. Consequently, I proceed to pass the following order :-
ORDER
1. Miscellaneous Application No.79/2019 in Execution
application No.502/2017 in Summary Civil Suit
No.428/2016 (Disposed of), is hereby disposed of as
infructuous.
2. Miscellaneous Application disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 02/08/2023 C.R. No.15
Dictated on : 02/08/2023
Transcribed on : 03/08/2023
Draft corrected on : 03/08/2023
Signed on : 04/08/2023
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..4.. Misc. Application No.79/2019
“Certified to be true and correct copy of the original signed order”.
04/08/2023
at about 05.25 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.15, Gr. Mumbai
Date of pronouncement of Order : 02/08/2023
Order signed by Hon'ble Judge on : 04/08/2023
Order uploaded on : 04/08/2023
at about 05.15 p.m.
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