Single judge made the chamber summons absolute. The court accepted evidence that mortgaged property belonged to the applicant via a registered transfer prior to the decree, ruling it could not be attached.
The chamber summons is made absolute in terms of prayer clause (a), setting aside the attachment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO.1332 OF 2007
IN
EXE.APPLICATION NO.183 OF 2007
IN
SUMMARY SUIT NO.2391 OF 2003
Kirit Shah
Kirit Shah.. Plaintiff
Versus
M/s.Spectrum Alloyed &
Resins Ltd... Defendants
and
M/s.Machmann Engineering
Pvt.Ltd... Applicant
Mr.B.S.Nayak i/b. Bhaskar & Co. for applicant
CORAM :S.C.DHARMADHIKARI, J.
DATE:17th February 2009.
P.C.
.This chamber summons is duly served. It
is for raising attachment on an immovable
property, more particularly described in prayer
(a) of the chamber summons. The applicant has
filed an affidavit of its Managing Director
stating that the applicant is a Private Limited
2
Company registered under the Companies Act, 1956.
It is stated that the applicant is the owner of
the subject Gala and is in possession of the
same. In fact, if there had been no right, title
and interest of the applicant in the subject
gala, there was no question of the same being
mortgaged with the Oriental Commercial Bank to
obtain the loan from the said Bank. It is stated
that the deed of transfer is deposited with the
bank.
2.Although, the affidavit of service shows
that the chamber summons is duly served on the
decree holder and none is present on their
behalf, I had directed the applicant to produce a
letter from the Oriental Bank stating therein
that the said Gala No.138/139 belongs to the
applicant and the same has been charged and/or
mortgaged on 29th May 2007. I had also directed
the applicant to produce original bills for
maintainance and receipts evidencing payment of
3
the same.
3.The letter from the said Bank certifies
that these galas belong to the applicant and it
has been charged on 29th March 2007 with the
Bank. In other words, the charge is created on
the said property and the same is continuing.
This certificate dated 13th February 2009 has
been perused by me. I have also perused the
bills raised by the Coop.Society which shows that
the society has raised bills in respect of Gala
No.138 even in February 2009 on the applicant.
Even prior thereto, bills have been raised on the
applicants and there are due payments made.
Bills for the month of May 2008 uptill February
have been produced.
4.The above documents clearly show that the
property belongs to the applicant as stated in
the affidavit in support and not to the Judgement
Debtor - defendant. There is no affidavit in
4
reply. In fact, one Spectrum Alloyed and Resins
Ltd. had transferred this property under a
registered deed of transfer to the applicant on
28th January 2004. A copy of the registered deed
is also annexed to the affidavit in support. It
is in such circumstances, that I am satisfied
that under the warrant of attachment, the decree
holder could not have attached Gala No.138
Hindustan Kohinoor Industrial Complex, Coop.
Society Ltd., opposite Telephone Exchange,
L.B.S.Road, Vikhroli Mumbai 400 083 in execution
of the decree passed on 7th June 2005. The deed
of transfer shows that the same is registered
prior to the date of decree. Thus, it could not
have been made the subject matter of attachment.
Thus, on both counts, that the property does not
belong to the judgement debtor and that it could
not have been made subject matter of attachment,
the chamber summons succeeds. It is made
absolute in terms of prayer clause (a).
5
(S.C.Dharmadhikari, J)
2 issues framed by the court
Whether immovable property attached in execution could not be the subject matter as it belonged to the applicant and had been transferred prior to the decree.
Whether the chamber summons for raising attachment should be made absolute given the evidence of ownership and prior transfer.
Kirit Shah
M/s.Spectrum Alloyed & Resins Ltd
M/s.Machmann Engineering Pvt.Ltd
S.C. Dharmadhikari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court