Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010088672019
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION No. 103250 of 2019
IN
EXECUTION APPLICATION No. 294 OF 2015
IN
SUMMARY SUIT NO. 708 OF 2014
Orix Leasing And Financial Services
India Limited ... Applicant/Intervenor
IN THE MATTER BETWEEN:
Atharali Muzafarali Khan ... Decree Holder
V/s.
Javed Ahmed Tauheed Shaikh And Ors … Judgment Debtor
Appearances:
Adv. Neha Sawant i/b M Mulla and Associates for the Intervenor.
Adv. Mr. V. R. Tripathi for DH/plaintiff.
Adv. Dnyaneshwar Mishra for JD/defendants.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 15th December, 2021
ORAL ORDER
1. This Notice of Motion is filed by authorized officer of
applicant by name Orix Leasing And Financial Services India Limited. As
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per statement of applicant he is conversant with the facts pleaded, so as
to deposed from the side of applicant/intervenor. The Court has issued
Bid of Auction on 21/08/2019, before that the property number i.e.
flat Nos.1603, 1604, 1202, 205 and 207 are attached by the Court for
satisfaction of the decree in Summary Suit No.708 of 2014. After
attachment Bid of Auction was held. The applicant came across the
Notice of Auction. The applicant has in receipt of Auction notice. The JD
has taken loan from the applicant. For security of loan JD has
mortgaged properties with applicant. At that time JD has not informed
about the proceeding pending against him. The applicant further
submitted that JD wants to deceive this applicant by joining hands with
DH. Their sole intention is to deceive this applicant. The JD has
mortgaged all properties to the applicant. Original property papers has
been mortgaged with applicant. The property cannot be sold out
without satisfying the claim of applicant. The applicant has interest in
the properties attached by the Court.
2. On 07/10/2016, Judgment Debtor has mortgaged property
deeds. The Judgment Debtor has taken loan from the intervenor/
creditor and for security purpose, he has deposited property deed. By
filing additional affidavit, the intervenor requested that the present
intervenor be heard before sale of property. Original property deeds are
mortgaged by JD with applicant, with these ground the
applicant/intervenor requested to stay attachment process.
3. Decree Holder filed reply to the Notice of Motion and strongly
opposed it, on the ground that the present applicant came before the
Court by gloving hands with Judgment Debtor. The applicant wants to
prolong the Execution, the applicant has not produced proper
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documents on record so as to believe the fact that the applicant has
given the loan to JD and accordingly, the Judgment Debtor has
mortgaged property deeds to applicant.
4. Heard Ld. advocate of intervenor as well as Decree Holder. The
advocate of intervenor requested that there are five properties attached
by the Court and decreetel amount is only to the extend of
Rs.25,00,000/ (Rupees Twenty Five Lacs only) with future interest at
the rate of 12% per annum. But, for that decree all five properties are
attached. Actually, there is no need to attach so many properties for
amount of Rs.25,00,000/ (Rupees Twenty Five Lacs only). Therefore,
he requested at least to remove property No.1202 from attachment.
Because the intervenor has interest in that property. It is settled
principal that by deed of mortgaged the intervenor must prove his
interest in the properties. He must prove interest in the properties
attached or the properties in his possession.
5. As per statement of the intervenor he is interested in the
property, because the Judgment Debtor has mortgaged original
property papers to him. As per statement of intervenor the Judgment
Debtor has taken loan to the extend of Rs.2,90,00,000/(Rupees Two
Crore, Ninety lacs only) from applicant and for security purpose he has
mortgaged all five properties with him. As per statement of intervenor
the loan transaction had taken place in the year 2016, the suit is filed by
the applicant in the year 2014 means during pendancy of the suit the
loan transaction had taken place. The JD was acquainted about the fact,
the suit is pending in the Court. Though the suit was of money decree
but, JD was aware about future consensuses. Even though he entered in
to contract with applicant. The loan amount is Rs.2,90,00,000/(Rupees
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Two Crore, Ninety lacs only) is sanctioned. The applicant submitted
that the Judgment Debtor is not defaulter. Therefore, he has not taken
any action against the Judgment Debtor for attachment of property
mortgaged with him.
6. As per statement of applicant there is no document to show that
the Judgment Debtor is regularly paying installment and how much
amount is due against him, so as the Court can consider some fact.
Under Rule 58 of Order 21 of Civil Procedure Code and as per
statement of applicant if it is presume that the loan is given and till date
the Judgment Debtor is not defaulter, therefore no action is taken
against him. If this is the fact, then applicant must have filed documents
on record to show at least, how much interest of applicant is remained
in the properties, which are subject attachment. It is true that all five
properties are not required for the decree i.e. Subject decree which is
only to the tune of Rs.25,00,000/ (Rupees Twenty Five Lacs only) with
future interest. But, here the applicant came before Court with request
to stay the Bid. He has not produced all relevant documents so as, the
Court can consider how much has been repaid by the Judgment Debtor
to applicant and how much amount has remained to be paid from this
fact Court can consider how much interest of applicant is involved in
the properties. But, in absence of all these facts it is difficult to believe
the applicant has interest in the properties subject attachment.
7. The applicant has produced Memorandum of deposition for
creation of mortgaged which is at Exh.'B', the xerox copy. That copy
shown signature of two persons but it is not on the space of signature of
depositor and officer. The place of signature of depositor and Officer is
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blank. However, the deed is also silent about the date of transaction
between the parties. The signature of witnesses are not there.
Therefore, just from xerox copies, which are also having defect it cannot
be said that the applicant has interest in the attached properties. Under
Rule 58 Order 21 of the Civil Procedure Code, the Court can consider
objection or claim but, primafacie that claim must be genuine and not
for unnecessary delayed. Here the suit is filed in the year 2014, the trial
Court has decreed the suit, thereafter, appeal is preferred which is also
dismissed. Now, Execution is filed, in that Execution properties are
attached and at the time of Bid of Auction all of sudden the applicant
appeared and trying to show his interest. But from the documents
which are prima facie not believable, it can not be said that the
applicant has interest in the attached properties. On the other hand all
of sudden appearance at the time of Auction Bid shows that this Notice
of Motion is filed just to delay the Execution. Therefore, Notice of
Motion deserved to be dismissed. Accordingly, I pass following order.
ORDER
1. Notice of Motion No. 3250 of 2019 stands dismissed.
2. Notice of Motion No. 3250 of 2019 is accordingly disposed of.
sd/
(C.V. PATIL)
Adhoc Judge,
Date : 15/12/2021 City Civil Court, Gr. Bombay
Dictated on : 15/12/2021.
Transcribed on : 23/12/2021.
HHJ signed on : 23/12/2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Typist
23/12/2021 4.45p.m. Mr. Suraj Ambekar
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
15/12/2021
JUDGEMENT /ORDER signed by P.O. on 23/12/2021
JUDGEMENT /ORDER uploaded on 23/12/2021
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