The Court allowed an application to challenge attachment of property, holding that bona fide transferees without notice are protected despite the attachment. The Court noted the Plaintiff's prolonged inactivity in executing a decree.
The Chamber Summons to raise the attachment was made absolute.
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.
919-CHS1141-17.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1141 OF 2017
IN
EXECUTION APPLICATION NO.1222 OF 2014
Arvind Desai & Anr…Applicants
In the matter between
Navoday Management Services Pvt Ltd...Plaintiff
Versus
DS Batra…Defendant
Mr SM Khaire, for the Claimant.
Mr M Khan, with Ms N Kalra, for the Applicant.
CORAM: G.S. PATEL, J DATED: 9th February 2018
PC:-
1.The Chamber Summons seeks to raise attachment levied
under a warrant of attachment dated 26th July 2017 in respect of an
immovable property described as Plot No.68, Nutan Laxmi Society
Limited, Road No.8, JVPD Scheme Juhu, Vile Parle (W), Mumbai
400 056. The Plot is about 668.88 square meters and there once
stood upon it a bungalow. This, I am told, has now been demolished.
2.The ownership history the plot goes back to 1st July 1953,
when one Chhotalal Ujamshi Mehta joined the Society. On 12th
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9th February 2018
919-CHS1141-17.DOC
December 1961, the society a granted a lease of this plot to
Chhotalal with effect from 18th August 1958. From 1971 onwards,
there were several transactions in respect of this plot. Chhotalal
assigned it to Sharda Dharnidharka and Chanda Dharnidharka. Thy
in turn then assigned their rights to Shakuntala R Goel and
Shrichand Goel. The Goels constructed on the plot. Shrichand Goel
released his share in favour of Shakuntala, who then became the sole
owner andm on 31st October 1994, a good four years before the
present Summary Suit was filed, Shakuntala transferred her interest
to one Lohagadh Real Estate & Construction Pvt Ltd, in which the
Defendant, Batra, happened to be a Director. There was a litigation
between Shakuntala and Lohagadh. This ended on 9th February
2007. In parallel, there started another litigation by one GHCB
Corporation, a foreign company for recovery of a loan it had granted
to Batra. GHCB Corporation obtained a foreign decree from the
Queen’s Bench Division, UK. GHCB moved in execution, and this
property was then attached and became the subject matter of a
warrant of sale on 15th November 2008 since Lohagadh guaranteed
the repayment of the loan to Batra.
3.On 30th December 2010, Shakuntala Goel transferred her
interest in the property on an as-is-where-is basis to one Pankaj Valia
and one Sumeet Goyal. Valia sought to settle the claims with
GHCB. The execution proceedings were stayed and as part of that
settlement, Lohagadh, GHCB, Shakuntala, Pankaj Valia and Sumeet
Goyal agreed to sell the property to the present Applicants, Arvind
and Kamini Desai.
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4.In the meantime the Plaintiff obtained an ex parte decree
against Batra on 7th October 2002 in the present Summary Suit.
Having done that, the Plaintiff seems to have gone into hibernation
for a period of 11 years and 363 days. Two days before the statute of
limitation ran out on the execution of that decree, the Plaintiff filed
an execution application and a Notice under Order 21 Rule 22 of the
Code of Civil Procedure 1908. This execution application itself was
thus filed only in 2014. By that time Arvind and Kamini Desai had
issued public notices in as many as four newspapers. They filed
consent terms in the GHCB/Lohagadh proceedings on 23rd March
2015 and there was a transfer of all rights to Arvind and Kamini
Desai by a registered deed dated 27th August 2015. The names of
Arvind and Kamini Desai were entered into the society records and
mutated on the property card.
5.On 26th July 2017, the Plaintiffs got a warrant of attachment
issued in respect of this plot and it was sought to be executed by
means of a pasting on the property’s gate.
6.The Application today is by Arvind and Kamini Desai who
say that they are bona fide transferees for value without notice, and,
in any case, acquired valid title without there being any prior
restraint. Having regard to this litigation history, I believe that this
correct. The Plaintiff has only itself to blame if it remained
somnolent for nearly 12 years. The law will not came to the aid of
the party not diligent in prosecuting its rights.
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919-CHS1141-17.DOC
7.The Chamber Summons is made absolute in terms of prayer
clause (a).
(G. S. PATEL, J)
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9th February 2018
2 issues framed by the court
Whether bona fide transferees without notice can raise attachment levied in execution proceedings against their property.
Whether the Plaintiff's delay in prosecuting its execution rights bars relief for innocent transferees.
1 provisions across 1 enactments
Arvind Desai & Ors
G. S. PATEL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court