Allowed

F.M.Chinoy and Co.Pvt.Ltd. v. the Union of India and Anr.

Bombay HC8 Mar 2013S/1082/2001

Case brief

AI extract

What is this about?

In an undefended suit, the High Court decreed the plaintiff's claim for declaration of title to the suit property and declared an earlier tax authority order null and void, subject to excluding specific assertions regarding a third party's interest.

What did the court decide?

Suit decreed declaring plaintiff the owner of the suit property and the Tax Recovery Officer's order of 23/02/2001 null and void, excluding references to Kaskar's rights.

F.M.Chinoy and Co.Pvt.Ltd. Vs the Union of India and Anr. — Income Tax | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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SUIT NO. 1082 OF 2001

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F.M.Chinoy & Company Private Limited ..... Plaintiffs

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VERSUS

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The Union of India & Anr.

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..... Defendants

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Mr.Shailesh Shah, Senior Advocate, a/w. Mr.Pranav Sampat, Mr.Kunal Parek, i/b. Thakore Jariwala & Associates for the Plaintiffs.

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None for the Defendants.

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Mr.Bharat Shah, Director of the Plaintiffs present.

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CORAM : R.D. DHANUKA, J.

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DATED : 8^th MARCH, 2013

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P.C.

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Mr.Shah, the learned senior counsel appearing on behalf of the plaintiff

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tenders affidavit of evidence of Mr.Bharat Shah, the director of the plaintiff

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company affirmed on 8^th March, 2013 alongwith compilation of documents containing original documents. Plaintiff Mr.Bharat Shah is personally present in the court.

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By an order dated 9^th June, 2008 passed by the Additional Prothonotary and

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Senior Master, suit was directed to be transferred to the list of undefended suits and

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was directed to be listed after two weeks. The matter has appeared on board today under the caption of undefended suits. None appeared for the defendants. No written statement is filed by any of the defendants.

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Perusal of the plaint and the documents indicates that by a lease dated 4^th April, 1916, the Trustees of the Improvement Trust for the City of Bombay leased the suit property to Dunlop Rubber Company Limited for a term of 93 years commencing from 15^th February, 1916 to 15^th February, 2009 which included the then structures standing thereupon inclusive of the motor garage, petrol pump shed and other structures.

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By a deed of assignment dated 28^th February, 1921, Dunlop Rubber Company Limited assigned the said property to Sir Sultan Meherally Chinoy for the residue of the then unexpired term of 93 years.

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By an indenture dated 3^rd July, 1928, the Trustees of the Improvement Trust for the City of Bombay at the request of Sir Sultan Meherally Chinoy gave their consent and licence for the assignment by him to M/s.F.M.Chinoy and Company Private Limited, the plaintiff herein. The plaintiff thereafter constructed a building of ground plus 3 storeys and structures on the said plot and also erected an

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underground petrol tank and petrol delivery pump and various other structures.

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It is the case of the plaintiff that on 19^th December, 1960, the plaintiff granted to Bombay Garage Limited a lease for a term of 10 years from 1^st October, 1960 in respect of the two showrooms, workshop and first floor office premises. By an indenture of surrender lease dated 27^th March, 1971, the said Bombay Garage Limited surrendered the said premises to the plaintiff. The plaintiff thereafter has granted on a lease various parts of the suit premises to various parties by executing various documents setout in the plaint.

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On 15^th July, 1999, the office of the Income Tax department visited the suit property and demanded the required proof from the plaintiff that suit property was that of plaintiff. The plaintiff vide their Chartered Accountant’s letter dated 27^th July, 1999 addressed a letter to the District Valuation Officer and submitted various documents.

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The office of the Tax Recovery Officer, Ward (8) initiated proceedings against M/s.Bombay Garage under Rule 11 of the Second Schedule to Income Tax Act, 1961 and attached the suit property. In response to the notice issued by the Tax Recovery officer, the plaintiff produced the documents of title before the Tax

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Recovery officer in respect of the suit property. By an order dated 23^rd February, 2001, the Tax Recovery Officer held that the immoveable property i.e. Bombay Garage was the benami property of Mr.D.I.Kaskar and rejected the claim of ownership made by the plaintiff under Rule 11(5) of Second Schedule to the Income Tax Act, 1961. It was however made clear that if the plaintiff was aggrieved by the said order, he was at liberty to institute suit in a Civil Court to establish his rights which it claims to be the property in dispute. The plaintiff accordingly filed the suit for a declaration that the plaintiffs are entitled to the suit property including building standing thereon and for declaring the order dated 23^rd February, 2001 passed by the 2nd defendant as null and void.

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The record indicates that the matter had appeared before the Additional Prothonotary & Senior Master on various dates when directions to file written statement was issued against the defendants. Roznama dated 28^th February, 2008 indicates that the matter was adjourned to 9^th June, 2008 for filing written statement by the defendants as a last chance making it clear that in case of default, the suit against the defendants would be transferred to the list of undefended suits and no further adjournments would be granted. Matter appeared before the Additional Prothonotary & Senior Master on 9^th June, 2008 when nobody on behalf of the defendant remained present and no written statement was filed. The

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Additional Prothonotary & Senior Master therefore passed an order transferring the suit to the list of undefended suits. The Notice of Motion taken out by the plaintiff thereafter appeared on board on few occasions when though the defendants appeared through their advocate did not file written statement.

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Perusal of the plaint and the documents annexed thereto and the affidavit in lieu of examination in chief and the original documents tendered by the plaintiff indicates that the plaintiff claims to be the owner of the suit property under indenture of lease from the Trustees of the Improvement Trust for the City of Bombay and through Dunlop Rubber Company Limited. The suit property has been assigned in favour of the plaintiff by the then owners.

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No written statement has been filed by the defendants though directions were issued by the Prothonotary & Senior Master. The averments made by the plaintiff in the suit are therefore deemed to have been admitted.

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Suit is decreed in terms of prayer (a) excluding the bracketed portion i.e. ‘and that Dawood Ibrahim Kaskar has no right, title and/or interest therein whatsoever'.

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Suit is also decreed in terms of prayers (b) and (c).

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Refund of court fees and costs as per rules.

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Office is directed to return the original documents to the plaintiffs after the true copies of the compilation of documents as certified by the plaintiff's advocate is submitted.

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Office is directed to draw the decree in the aforesaid terms expeditiously.

F.M.Chinoy and Co.Pvt.Ltd. v. the Union of India and Anr.

Case brief

What is this about?

What did the court decide?

F.M.Chinoy and Co.Pvt.Ltd. v. the Union of India and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Coram

Case details

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