Allowed

Radha Ballabh Chiranjilal v. Bharat Petroleum Corpn. Ltd.

Bombay HC4 Oct 2007APP/623/2005

Case brief

AI extract

What is this about?

Court allowed the appeal challenging an order permitting execution attachment against the appellant's property. Since the decree was fully paid via a settlement, continuing attachment was held unjustified, and the order attaching the appellant's flat was set aside.

What did the court decide?

The impugned order attaching the flat of the Appellant is set aside. The appeal, Notice of Motion No.2436 of 2007 and Chamber Summons No.917 of 2006 are disposed of.

Radha Ballabh Chiranjilal Vs Bharat Petroleum Corpn… — Execution and Attachment | Bombay HC (2007)

¶1

 - 1 -

¶2

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

 O.O.C.J.

¶4

 NOTICE OF MOTION NO.3244 OF 2007

¶5

IN

¶6

 APPEAL NO.623 OF 2005

¶7

IN

¶8

 NOTICE OF MOTION NO.2071 OF 2003

¶9

IN

¶10

 CHAMBER SUMMONS NO.11 OF 2003

¶11

IN

¶12

 SUMMARY SUIT NO.7 OF 2001

¶13

 Radha Ballabh Chiranjail

¶14

 Kejriwal ...Appellant
 v/s.

¶15

 Bharat Petroleum Corporation Ltd.

¶16

 and ors. ...Respondent

¶17

 Mr.Jay Chinoy with Ms.Sonal and Ms.S.Shaikh i/b

¶18

 S.K.Srivastava & Co. for the Appellant.

¶19

 - 2 -

¶20

 Ms.S.John i/b M.P.Savla & Co. for Respondent No.1.

¶21

 Mr.Ramesh Jain for Respondents Nos. 2 to 6.

¶22

 Mr.Lalit Jain for Respondent No.8/Applicant.

¶23

CORAM: D.K.DESHMUKH&

¶24

 J.H.BHATIA, JJ.

¶25

DATED:4TH OCTOBER, 2007

¶26

P.C.:

¶27

 On a motion made by the learned Counsel for the

¶28

 Applicant, motion is allowed to be withdrawn.

¶29

 (D.K.DESHMUKH, J.)

¶30

 (J.H.BHATIA, J.)

¶31

 - 3 -

¶32

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶33

 O.O.C.J.

¶34

 APPEAL NO.623 OF 2005

¶35

IN

¶36

 NOTICE OF MOTION NO.2071 OF 2003

¶37

IN

¶38

 CHAMBER SUMMONS NO.11 OF 2003

¶39

IN

¶40

 SUMMARY SUIT NO.7 OF 2001

¶41

 Radha Ballabh Chiranjail

¶42

 Kejriwal ...Appellant

¶43

 v/s.

¶44

 Bharat Petroleum Corporation Ltd.

¶45

 and ors. ...Respondent

¶46

 Mr.Jay Chinoy with Ms.Sonal and Ms.S.Shaikh i/b

¶47

 S.K.Srivastava & Co. for the Appellant.

¶48

 Ms.S.John i/b M.P.Savla & Co. for Respondent No.1.

¶49

 Mr.Ramesh Jain for Respondents Nos. 2 to 6.

¶50

 Mr.Lalit Jain for Respondent No.8.

¶51

 - 4 -

¶52

CORAM: D.K.DESHMUKH&

¶53

 J.H.BHATIA, JJ.

¶54

DATED:4TH OCTOBER, 2007

¶55

P.C.:

¶56

 1. The Appeal is not board for final hearing. By
 consent of parties, it is heard finally.

¶57

 2. By this Appeal, the Appellant challenges the
 order dated 8-6-2005 passed by the learned single
 Judge of this Court in Notice of Motion No.2071 of
 2003. Bharat Petroleum Corporation filed a summary
 Suit in this court for a money decree against the
 Firm M/s.Radha Dying & Printing Mills. Three persons
 namely Mr.Gopal Kejriwal, Mr.Gautam Kejriwal and
 Mr.Hanumanprasad Kejriwal were joined as Defendants
 as partners of the Defendant No.1-firm. Admittedly,
 in that summary suit, money decree came to be passed
 in favour of the Plaintiff Bharat Petroleum and
 against the Defendants. The decree holder,
 thereafter, took out Chamber Summons No.11 of 2003
 for executing decree against other persons who,
 according to the decree holder, were partners of the

¶58

 - 5 -

¶59

 firm, but were not joined as Defendants to the suit.
 The present Appellant is one of the partners of the
 judgment-debtor firm. That Chamber summons was
 granted by the court, because other side did not
 appear and file reply.

¶60

 3. For setting aside that order, Notice of Motion
 No.2071 of 2003 has been taken out. The learned
 single Judge by order dated 8-6-2005 declined to
 vacate the order passed by the court permitting
 execution of the decree against the Appellant and
 attaching a flat admittedly belonging to the
 Appellant in execution of the decree.

¶61

 4. We need not go for the purpose of deciding this
 Appeal into the grounds given by the learned single
 Judge for rejecting the Notice of Motion. It appears
 that during the pendency of the proceedings between
 the decree holder and the judgment-debtor, a
 settlement was arrived at and as a consequence of
 that settlement admittedly full amount has been paid
 and it has been accepted by the decree holder in full
 and final satisfaction of the decree. In the
 affidavit dated 6th August, 2007 filed in Notice of
 Motion No.2436 of 2007, the decree holder states

¶62

 - 6 -

¶63

 thus:-

¶64

 "A settlement was arrived at whereby the well wishers
 of the Respondents made payments towards full and
 final satisfaction of the claim of the Respondent
 No.1 against the Insolvents."

¶65

 It may be pointed out here that some persons who were
 partners of the judgment-debor/firm were declared as
 insolvents. Thus, before us it is an admitted
 position that the decree, in execution of which the
 property of the Appellant is attached, has been
 satisfied and has been fully paid and nothing is
 outstanding to the decree holder under that decree.

¶66

 5. The only submission made on behalf of the Decree
 holder is that the attachment should not be lifted,
 because original Defendants Nos. 2, 3 & 4 namely
 Mr.Gopal Kejriwal, Mr.Gautam Kejriwal and
 Mr.Hanumanprasad Kejriwal were declared as insolvents
 and they have not yet been discharged.

¶67

 6. In our opinion, the submission is not well
 founded. The flat of the Appellant was attached
 because of the decree passed against the firm, where

¶68

 - 7 -

¶69

 the Appellant was a partner and that decree was
 outstanding. Now that decretal amount has been paid,
 and therefore, in our opinion, there is no
 justification whatsoever for continuing the flat of
 the Appellant under attachment. Attachment of the
 property has serious consequence and therefore the
 minimum that is required is that either there should
 be a strong possibility of decree being passed
 against the owner or there should be outstanding
 decree against the owner of the property, when
 attachment of any property belonging to a person is
 ordered. When the decretal amount has admittedly
 been paid off, in our opinion, there is no
 justification for continuing the flat of the
 Appellant under attachment.

¶70

 7. In the result, therefore, the appeal succeeds and
 is allowed. The order impugned, in so far as it
 attaches the flat of the Appellant, is set aside.

¶71

 8. Appeal, Notice of Motion No.2436 of 2007 and
 Chamber Summons No.917 of 2006 are, therefore,
 disposed of.

¶72

 - 8 -

¶73

 (D.K.DESHMUKH, J.)

¶74

 (J.H.BHATIA, J.)

¶75

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶76

 O.O.C.J.

¶77

 APPEAL NO.624 OF 2005

¶78

IN

¶79

 CHAMBER SUMMONS NO.9 OF 2004

¶80

IN

¶81

 EXECUTION APPLICATION NO.98 OF 2003

¶82

IN

¶83

 SUMMARY SUIT NO.7 OF 2001

¶84

 Radha Ballabh Chiranjail

¶85

 Kejriwal ...Appellant

¶86

 v/s.

¶87

 Bharat Petroleum Corporation Ltd.

¶88

 and ors. ...Respondent

¶89

 - 9 -

¶90

 Mr.Jay Chinoy with Ms.Sonal and Ms.S.Shaikh i/b

¶91

 S.K.Srivastava & Co. for the Appellant.

¶92

 Ms.S.John i/b M.P.Savla & Co. for Respondent No.1.

¶93

 Mr.Ramesh Jain for Respondents Nos. 2 to 6.

¶94

 Mr.Lalit Jain for Respondent No.8.

¶95

CORAM: D.K.DESHMUKH&

¶96

 J.H.BHATIA, JJ.

¶97

DATED:4TH OCTOBER, 2007

¶98

P.C.:

¶99

 In view of the order passed in Appeal No.623 of 2005,

¶100

 no order is necessary in this Appeal.

¶101

 Appeal, Notice of Motion No.2254 of 2005, Notice of
 Motion No.2435 of 2006 & Chamber Summons No.918 of
 2006 are, therefore, disposed of.

¶102

 - 10 -

¶103

 (D.K.DESHMUKH, J.)

¶104

 (J.H.BHATIA, J.)

Radha Ballabh Chiranjilal v. Bharat Petroleum Corpn. Ltd.

Case brief

What is this about?

What did the court decide?

Radha Ballabh Chiranjilal v. Bharat Petroleum Corpn. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Tulsiram K. Gothad Vs the Superintendent, Mahatma Gandhi Memorial Hospital, and Anr.

narendra motibhai patel and Anr. Vs brijesh b. visanji

State Bank of India Vs Official Liquidator and Anr.

Narendrkumar R.Parashar Vs Asha S.Vyas

Mcdermott International Inc. Vs Oil and Natural Gas Commission

Mun.Corpn.of Greater Mumbai Vs M/S.Kulkarni and Co.