Final Order 1

Order Details: Chamber summons
Pdf Text: ..1.. Chamber Summons No.1849/2019
MHCC010104442019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
CHAMBER SUMMONS NO.1849 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.
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..2.. Chamber Summons No.1849/2019
ORDER
1 This chamber summons is taken out by Ashish Yogesh
Shah and Mukesh S. Doshi (Applicants) challenging the attachment of
sale 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
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..3.. Chamber Summons No.1849/2019
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.
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 On perusal of record, it reveals that the flats in question
were mortgaged with the IIFL in the year 2009 and the applicants have
purchased the same in the year 2018. It also reveals that the IIFL has
took the possession of the flats as per the provisions of Securitisation
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002, on 28/08/2017, prior to filing of the instant
execution petition. Thus, the property in question is not available for
attachment against the decree in the execution. At this stage, the
learned advocate for plaintiff/decree holder has fairly submitted that
the flats attached were already attached by IIFL against the loan as it
was sold in auction. The applicants are bonafide purchaser. The
plaintiff/decree holder has right to proceed against the
defendant/judgment debtor in respect of their other property.
Considering the fair submission, I am of the view that the attachment
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..4.. Chamber Summons No.1849/2019
order in respect of the flats purchased by the applicants needs to be set
aside and attachment deserves to be raised as prayed for. Resultantly, I
proceed to pass the following order :-
ORDER
1. Chamber Summons No.1849/2019 in Execution
application No.502/2017 in Summary Civil Suit
No.428/2016 (Disposed of), is hereby allowed in
terms of prayer clause (a) and (b).
2. The attachment in respect of the flats purchased by
the applicants and the warrant of sale of these flats
stand set aside.
3. Decree holder is at liberty to proceed against other
properties of defendant/judgment debtor, if any.
4. Chamber summons is disposed of accordingly.
(Order dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Gr. Bombay.
Date: 02/08/2023. C.R. No.15
Dictated on : 02/08/2023
Transcribed on : 02/08/2023
Draft checked on : 03/08/2023
Signed by HHJ on : 04/08/2023
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..5.. Chamber Summons No.1849/2019
“Certified to be true and correct copy of the original signed order”.
04/08/2023
at about 05.15 p.m.
(Ms. Sonali Sudhir 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 : 04/07/2023
Order uploaded on : 04/08/2023
at about 05.15 p.m.
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