Allowed

the naitional small industries corporation limited v. m/s kamal traders and Ors. and kamala vasudeo badlani

Bombay HC4 Feb 2008CHS/479/2006

Case brief

AI extract

What is this about?

In an execution application, the court set aside a warrant of attachment concerning a flat. It held that while the applicant showed evidence of ownership, the claimant failed to prove the judgment debtor owned the property or that it was fraudulently transferred.

What did the court decide?

The chamber summons to set aside the warrant of attachment was made absolute.

the naitional small industries corporation limited… — Execution and Attachment | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

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CHAMBER SUMMONS NO.479 OF 2006
IN
EXECUTION APPLICATION NO.197 OF 2004
IN
ARBITRATION CASE NO.2 OF 2001

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The National Small Inds.Corpn.Ltd.....Claimants
V/s.
M/s.Kamal Traders & Ors. ....Respondents
And

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....Claimants
....Applicant

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Kamla Y. Badlani

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Mr.R.J. Singh i/b R.J. Singh & Co. for the Claimants.
Mr.Birendra Saraf i/b ALMT Legal for the Applicant.

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CORAM : S.J. VAZIFDAR, J.
DATED : 4TH FEBRUARY, 2008.

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P.C. :

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1.The Chamber Summons is filed for setting
aside the warrant of attachment dated 16.7.2004 by
which a flat has been attached. I have proceeded on
the basis that the Applicant is the mother of
Respondent No.6 who is one of the judgment debtors.

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2.Firstly, the claimant has not produced any
proof as to the ownership of the said flat. There is

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no evidence produced by the Plaintiff to indicate that
Respondent No.6 is the owner of the flat. It was

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stated that Respondent No.6 led the claimant to belief
that the flat belongs to him. There is no evidence to
suggest on what basis the statement is made either.

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3.Mr.Saraf the learned counsel appearing on
behalf of the Applicants has relied on the agreement
for sale of the flat dated 9.9.1980 in favour of the
Applicant. The agreement was registered by a deed of
confirmation in 1981. The award was passed on
11.3.2002. The Applicant has relied upon the bills
and receipts issued by the society, samples whereof
are annexed to the affidavit filed by the Applicant.

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4.Faced with this, it was contended that the
flat may have been transferred to the name of the
Applicant after the arbitration proceedings commenced
with a view to defraud the claimant. If that is so,
the claimant ought to have had the records of the
society produced by adopting appropriate proceedings.
This would have been the simplest exercise which ought
to have been undertaken. The same has admittedly not
been done.

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5.In the circumstances, while there is evidence
to establish the Applicant’s ownership of the flat,
there is no evidence whatsoever produced by the

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claimant indicating that the flat belongs to
Respondent No.6 or that the flat has been fraudulently
transferred by Respondent No.6 to the Applicant.

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6.In the circumstances, the Chamber Summons is
made absolute in terms of prayer (a). The claimant is
always at liberty to take out a fresh execution
application including in respect of the flat, if it is
otherwise entitled to in law.

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.It is necessary that if any such application
is made the claimant follows the procedure as
stipulated in the order and judgment of this Court in
the case of Ms.Aarti S. Bajaj v. Deepak Nichani &
Smt.Shantibai Lalchand Nichani, in Chamber Summons
No.241 of 2002 in Execution Application 26 of 2002 in
Summary Suit No.1249 of 1999 dated 25.6.2002.

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7.The order is stayed for a period of four
weeks from today to enable the claimant to challenge
the same.

the naitional small industries corporation limited v. m/s kamal traders and Ors. and kamala vasudeo badlani

Case brief

What is this about?

What did the court decide?

the naitional small industries corporation limited v. m/s kamal traders and Ors. and kamala vasudeo badlani

Case brief

What is this about?

What did the court decide?

What the court decided

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