Final Order 1

Order Details: Chamber summons
Pdf Text: ..1.. Chamber Summons No.1650/2019
MHCC010093482019
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
CHAMBER SUMMONS NO.1650 OF 2019
(CNR NO.MHCC01-009348-2019)
IN
EXECUTION APPLICATION NO.367 OF 2015
(SUIT NO.4665 OF 2012 DISPOSED OFF)
ASHURAM MODAJI MODI )...PLAINTIFF
V/S.
DINESH SOBHALAL BAFANA (JAIN) )...DEFENDANT
AND
DINESHKUMAR HARAKLAL KOTHARI )…APPLICANT
Appearances :-
Learned Advocate C. D. Mishra for applicant.
Learned Advocate Prakash Jain for Decreeholder/plaintiff.
None for judgment debtor/defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 12/07/2024.
ORDER
1 This chamber summons is taken out for release of
attachment warrant for the property attached as below :-
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..2.. Chamber Summons No.1650/2019
“Shop LG 10-2/3 and 3/3, Near Kamgar Nagar, S. G.
Barve Marg, Kurla East, Mumbai – 400 071. (hereinafter
referred to as “the suit shop”)”
2 The chamber summons is taken out by one Dineshkumar
Haraklal Kothari contending that he has purchased the suit shop which
is attached in the execution application No.367 of 2015 from the
judgment debtor/defendant as per the Agreement of Sale dated
18/01/2016 for Rs.10,00,000/-. The defendant/judgment debtor
executed two affidavits confirming the right, title and interest of the
applicant in the suit shop attached in execution application. The
defendant/judgment debtor also executed two indemnity bonds both
dated 18/01/2016 regarding sale of attached property in favour of the
applicant. It is also contended that the applicant has obtained license
under Shop and Establishment and relevant permission from the
Government authorities to run the shop at the said premises, thus, he is
bonafide purchaser and he is in active possession of the property but on
24/07/2019, the bailiff of this Court has given a copy of attachment of
the property and had surprised the applicant. It is also contended that
he has no concern with the decree passed against the
defendant/judgment debtor and it is not binding upon him.
Defendant/judgment debtor has no right, title and interest in the suit
shop, the attachment warrant is issued in a misconception that the said
suit shop belonged to the defendant/judgment debtor and prayed for
release of attachment warrant.
3 The decreeholder/plaintiff resisted the contention by filing
reply contending that the applicant and defendant/judgment debtor
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..3.. Chamber Summons No.1650/2019
are relatives and closely known to each other and to bail out the
judgment debtor, the applicant and judgment debtor in collusion
entered into a shameful and colourable transaction under the right and
title as Agreement of Sale to defeat the decretal claim. It is contended
that the defendant/judgment debtor was fully aware of pendency of the
suit and passing of decree as well as filing of execution application and
to defeat the decree, thus, fake transaction is created. It is further
submitted that the attached suit shop is situated in the prominent area
of Kurla “heart of Mumbai” which is having estimated value of
Rs.45,00,000/- to Rs.50,00,000/-. However, applicant in collusion with
the defendant/judgment debtor has deliberately shown lesser value and
that to without paying consideration to defeat the decree. He denied all
contents in the chamber summons and lastly prayed for dismissal of the
same.
4 Heard applicant and learned advocate for
plaintiff/decreeholder. The defendant/judgment debtor remained
absent. It is the contention of the learned advocate for applicant that he
is a bonafide purchaser and has no concern with the transaction of the
plaintiff/decreeholder and defendant/judgment debtor and the decree
is not binding on him. Whereas, it is the contention of the
plaintiff/decreeholder that the suit shop originally belonged to the
defendant/judgment debtor who deliberately shown transfer of the suit
shop to the applicant. He also contended that judgment
debtor/defendant was well aware of filing of suit and passing of decree.
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..4.. Chamber Summons No.1650/2019
5 The record of suit proceeding is also available with the
execution application No.367 of 2015. On perusal of the record of suit
proceeding, it reveals that suit summons were severed upon the
defendant/judgment debtor but he remained absent. Hence, matter
proceeded ex-parte and judgment came to be passed on 04/05/2013,
directing the defendant to pay the claim amount as per the decree. The
record also shows that the plaintiff/decreeholder has filed this
execution application proceeding in the year 2015, the notice of
execution was issued by Registered Post AD to the judgment
debtor/defendant, the postman on 09/10/2015 and 10/10/2015 visited
at the address as per the service affidavit dated 25/02/2016. It appears
from the report/endorsement of postman that the intimation was given
to the defendant/judgment debtor, but he did not receive the notice.
Consequently, attachment warrant of suit shop was issued and same
came to be attached, which is challenged by the present applicant.
6 It is the contention of the applicant that he purchased the
suit shop as per the Agreement of Sale dated 18/01/2016, but the
record of suit proceeding and execution application shows that suit
summons were served upon the defendant/judgment debtor on
05/12/2012 and notice of execution proceeding was attempted to be
served on 09/10/2015 and 10/10/2015. Thus, it clearly appears that
the defendant/judgment debtor was having well knowledge of suit
proceeding and pendency of execution proceeding, but he avoided to
appear in the Court. Instead of obeying the decree or challenging the
same before the Appellate Forum, he transferred the property under the
Agreement of Sale to the petitioner. It is the contention of the applicant
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..5.. Chamber Summons No.1650/2019
that he was not aware about the filing of the suit or passing of decree
against the defendant/judgment debtor. He specifically referred to the
two affidavits and two indemnity bonds executed by the
defendant/judgment debtor. The copies of the same are annexed with
the chamber summons which discloses that the power of attorney and
affidavits are executed on 18/01/2016. The intimation of filing of
execution proceeding was received by the defendant/judgment debtor
on 09/10/2015 and 10/10/2015; the judgment debtor was well aware
of the pendency of the execution proceeding and passing of decree
against him. Having knowledge, he transferred the property to the
petitioner. It is well settled that buyer should be aware, even if it is
presumed that the applicant is a bonafide purchaser, his bonafideness is
against the judgment debtor/defendant not against the
plaintiff/decreehoder. Thus, transfer of suit shop is made just to defeat
the decree.
7 It is well settled that a successful plaintiff should not be
deprived from the fruits of decree. In this matter, the decree is passed in
favour of plantiff/decreeholder, as the defendant having been served
with the writ of summons failed to appear, therefore,
defendant/judgment debtor was required to obey the decree. If it is
presumed that the applicant is deceived by the judgment debtor as the
applicant has an opportunity to take appropriate action and steps
against the judgment debtor. The suit shop was belonging to the title of
defendant/judgment debtor during pendency of the suit and till
receiving the intimation of filing of execution proceeding. If the
defendant/judgment debtor of a decree is allowed to alienate the
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..6.. Chamber Summons No.1650/2019
property after passing of decree, all the decrees in civil suits will
become infructuous and would become paper decree, which would lead
to loss of faith of successful plaintiffs in the judicial system.
8 In view of above discussion, I am of the view that the
petitioner has not made out any case to release the attachment warrant.
In the result, I proceed to pass the following order :-
ORDER
1. Chamber Summons No.1650 of 2019 in Execution
Application No.367 of 2015 (Suit No.4665 of 2012
Disposed), is hereby dismissed.
2. Chamber Summons is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Mazgaon
Mumbai
Date: 12/07/2024. Court Room No.84
Dictated on : 12/07/2024.
Transcribed on : 15/07/2024.
Signed by HHJ on : 16/07/2024.
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..7.. Chamber Summons No.1650/2019
“Certified to be true and correct copy of the original signed order”.
16/07/2024
at about 5.35 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.84, Mazgaon, Mumbai
Date of pronouncement of Order : 12/07/2024
Order signed by Hon'ble Judge on : 16/07/2024
Order uploaded on : 16/07/2024
at about 5.35 p.m.
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