Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/S.No.2017/19
MHCC010114312019
IN THE CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 2017 OF 2019
IN
EXECUTION APPLICATION NO. 230 OF 2019
IN
SUMMARY SUIT NO. 1031 OF 2017
Smt. Rajani Vinod Mehta
Aged about 83 years, Occ. House Wife
Residing at Flat No.13, 5th Floor,
Neelkanth Nilayam, 9th Road,
Sandu Road, Chembur,
Mumbai 400 071 … Applicant
In the matter between
Mr. Janak Jivanlal Gandhi
Aged about 53 years, Occ : Job
Residing at Flat No.1, 2nd Floor,
Loyalka Apartment, Loyalka Camp,
Siri Road, Chowpaty,
Mumbai 400 006 … Plaintiff
(Decree Holder)
Versus
Mr. Mehul Vinod Mehta,
Age not known, Occupation Business,
5th Floor, Neelkanth Nilaya Society,
10th Road, D.K. Sandhu Marg,
Opposite Joy Hospital, Chembur,
Mumbai 400 71 … Defendant
(Judgment Debtor)
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Appearances:-
Advocate Mr. Jayesh R. Vyas for the Applicant.
Advocate Mr. Paras N. Vira for the plaintiff (Decree Holder).
CORAM : HIS HONOUR AD-HOC JUDGE
DEEPAK L. BHAGWAT
(C.R. NO. 28)
DATE : 16th MARCH, 2021
O R D E R
1. By present chamber summons, the applicant requested to
quash and set aside warrant of attachment under Order 21 Rule 54 of
the Code of Civil Procedure in respect of Flat No.13, 5th Floor, Neelkanth
Nilayam, 9th Road, Sandu Road, Chembur, Mumbai. The decree holder
resisted the chamber summons.
2. It appears from the record that, in execution of decree
passed in Summary Suit No.1031 of 2017 in favour of the decree holder
Janak and against the right and interest of the Judgment Debtor, the
Flat No.13 came to be attached under Order 21 Rule 54 of the Code of
Civil Procedure. The applicant-Rajani vide present chamber summons
contended that the Judgment Debtor has no right, title or interest in the
attached flat. She alone is the sole and absolute owner of the attached
flat since prior to the issuance of the attachment warrant. Therefore,
she requested to allow the chamber summons and quash/set aside
warrant of attachment.
3. The Ld. Advocate on behalf of the applicant argued that the
flat was initially purchased by applicant-Rajani and her husband Vinod
jointly. Various flat purchasers in the building Neelkanth Nilayam
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including applicant-Rajani and Vinod, formed registered Co-operative
Housing Society in 1988-89. The society issued share certificate No. 13
in respect of the Flat No.13 in favour of Vinod and the applicant. The
Judgment Debtor is the son of the applicant and Vinod. Apart from the
Judgment Debtor, there are two daughters namely Sindhu and Sejal to
the applicant and Vinod. Both of the said daughters are married. Vinod
expired on 28th July, 2003. Thereupon Sindhu, Sejal and Mehul
executed a Deed of Disclaimer on 29th April, 2004, by which they
abandoned and disclaimed all their rights, share, title and interest and
claim in the attached flat including other properties. Thus, the
applicant remained the only owner of Flat No.13. The Judgment
Debtor has no right, title and interest in the said flat. The Ld. Advocate
also argued that the Deed of Disclaimer was executed in 2004 that is
before 15 years of decree. The Judgment Debtor was not the owner of
the Flat No.13, at the time of passing of decree or at the time of issuing
attachment warrant. It being so and the applicant being the sole owner,
according to Advocate of the applicant, the attachment warrant under
Order 21 Rule 54 of the Code of Civil Procedure has to be set aside.
4. On the other hand, the Ld. Advocate for the Decree Holder
argued that the chamber summons is not maintainable as the applicant
ought to have filed a notice of motion. He argued that the Judgment
Debtor has right, title and interest in Flat No.13. Same right, title and
interest in Flat No.13 has been attached. According to him, the Deed of
Disclaimer cannot be taken into consideration, it being unregistered.
He also argued that there is no material showing the reliability of the
Deed of Disclaimer. Therefore, he requested to reject the chamber
summons.
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5. Considering the material on record and submissions made
on behalf of the parties, points arise for determination along with my
findings thereon for the reasons recorded are as under:-
POINTS FINDINGS
1. Whether the Judgment Debtor has
any right, title or interest in the
attached flat ?
Judgment debtor has
undivided interest in the
attached flat.
2. Whether the issuance of warrant is
proper ?
Affirmative.
3. What order ? As per final order
REASONS
AS TO POINTS NO.1 to 3:-
6. The Ld.Advocate for decree holder objected to the chamber
summons contending that notice of motion ought to have been filed. On
the other hand, the Ld. Advocate for the applicant argued that the rule
No.43 of the Bombay City Civil Courts Rules mention that all questions
under Section 47 of Code of Civil Procedure may be disposed as a
chamber work and therefore, chamber summons is appropriate
proceeding. However, this court must mention that question under
Sec.47 of the CPC can be only between the parties to the suit. The
applicant Rajani was neither a party to the suit nor she claims to be the
representative of any party to the suit. As such, the question raised by
this proceeding cannot be said to be a question under Sec.47. On the
other hand, it is an objection raised under rule 58 of Order 21 of CPC to
the attachment of the property. Be that as it may. It is only the matter
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of form as to whether the chamber summons should be filed or any
different proceeding, particularly when both the applicant Rajani and
the decree holder understood the contentions of each other and
properly contested the same. Keeping in view the same circumstance,
filing of the proceeding in the form of chamber summons has no
material bearing on the merits of the rival contentions.
7. It does not seem to be disputed that the Judgment Debtor is
the son of applicant-Rajani and Vinod Mehta. The copy of agreement
for sale dated 06.02.1987 is produced on record. It appears from the
same that the applicant and her husband Vinod had purchased the Flat
No.13 and agreement regarding it was executed on the stamp of
Rs.17,300/- purchased in 1996. The copy of share certificate regarding
the same flat as issued by Neelkanth Nilayam Co-operative Housing
Society also shows that the said Flat stands in the name of Vinod Mehta
and applicant-Rajani Mehta. Thus, it is apparent that the applicant and
her husband were the original owners of Flat No.13. Death of Vinod is
also not disputed.
8. The theory of the applicant is that, after death of her
husband, the Judgment Debtor and married daughters Sindhu and Sejal
executed the Deed of Disclaimer on 29th April, 2004 and thereby
abandoned all their rights in favour of the applicant in respect of the
attached flat including one Industrial Gala and Stilt Car Parking space.
Only the attached flat is the subject matter of present proceeding. In
respect of the same flat, the applicant claims that her children including
Judgment Debtor executed a Deed of Disclaimer. The copy of the same
Disclaimer Deed is produced on record. On perusal of the said copy, it
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appears that it came to be executed on non-judicial stamp of Rs.200/- in
total. It is not registered before the Sub-Registrar. It appears that it was
registered before a Notary. Having gone through the contents of the
Deed of Disclaimer, in clause-B it is mentioned that the disclaimers i.e.
Sindhu, Sejal and Mehul are desirous of not making any claim or any
right in respect of Flat No.13 and abandon the same as they don’t want
to have the same. The clear words mentioned are that they abandon
the right, title and interest in Flat No. 13. Thus, it purports to say that
they relinquished their rights in flat No.13. The same relinquishment
would extinguish rights of Judgment Debtor and married daughters
Sindhu and Sejal and at the same time would create right in the
applicant. Therefore, as per the Registration Act, the same
relinquishment deed ought to have been registered before the Sub-
Registrar. If the agreement for sale dated 06.02.1987, is compared with
Deed of Disclaimer, it can be noticed that the agreement for sale was
executed on the non-judicial stamp of Rs.17,300/- in 1996. Whereas,
the Deed of Disclaimer has been executed only on the stamp of
Rs.200/-. It makes this court to say that the Deed of Disclaimer appears
to be an after-prepared document. Basically, when it requires
compulsory registration under the Registration Act, it does not create
any rights in favour of any party nor it does extinguish any right of any
party unless registered in accordance with the Registration Act.
9. It may also be noted that if the disclaimer was executed in
2004, name of the applicant alone would have been recorded in respect
of the attached flat in the share certificate of Neelkanth Nilayam Co-
operative Housing Society. But nothing is produced on record to show
that the share certificate stands alone in the name of applicant-Rajani.
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On the other hand, the record reveals that the decree holder by issuing
notice to Neelkanth Nilayam Co-operative Housing Society had called
upon them to produce the Deed of Disclaimer with them, membership
register with relevant entries in respect of Flat No.13 after 28.07.2003,
form of nomination submitted by Rajani, copy of resolution passed
regarding changed membership with flat No.13. Thus, material
information and documents were called by the decree holder from
Neelkanth Nilayam Co-operative Housing Society. However, Neelkanth
Nilayam Co-operative Housing Society did not furnish any information
or any document. In any case, there is no legal considerable material to
accept the contention that the Judgment Debtor, Sindhu and Sejal
relinquished their right in the flat No.13. As such, the theory of the
applicant, that the Judgment Debtor has no right, title or interest, cause
of relinquishment of his right, is not acceptable. On the other hand,
after death of Vinod, the Judgment debtor would succeed to the Flat
No.13 in the undivided interest of deceased Vinod alongwith applicant-
Rajani and Sindhu and Sejal. Thus, the Judgment debtor has undivided
interest in the Flat No.13. The warrant of attachment shows that what
has been attached is the right, title and interest of the Judgment Debtor
in the Flat No.13 and not whole of the flat No.13 has been attached.
Thus, attachment warrant issued under Order 21 Rule 54 attaching the
right, title and interest of the Judgment Debtor in Flat No.13 is valid
and proper. It is not that the right, title and interest of the applicant is
attached. Hence, Point No. 1 is answered as that the Judgment Debtor
has undivided interest in the attached flat, whereas point No.2 is answered in
the affirmative. Resultantly, the chamber summons is liable to be
rejected. Hence, order as follows is passed:-
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ORDER
The Chamber Summons No. 2017 of 2019 is rejected.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date: 16/03/2021 City Civil Court, Gr. Mumbai
Dictated on : 16.03.2021
Transcribed on : 17.03.2021
Date of sign : 31.03.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 31.03.2021 4.15 p.m.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri.D.L.Bhagwat
(C.R.NO.28)
Date of Pronouncement of
JUDGMENT /ORDER
16.03.2021
JUDGMENT /ORDER signed by P.O. on 31.03.2021
JUDGMENT /ORDER uploaded on 31.03.2021
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