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2008 Supreme(Bom) 1266
Mh.L.J. 2009 (1) 170
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SMT.ROSHAN DALVI, J.
Essar Shipping Limited — Appellant
Vs.
R.C. Coastal Exports Pvt. Ltd. — Respondent
Chamber Summons No.1603 of 2006
IN
Execution Application No.90 of 2006
IN
Award dated 23rd August 2004
Decided on : 2nd September, 2008
Headnote:Transfer of Property Act, 1882 - Sections 5 and 105-Co-owned property-Transfer of.-When the property is co-owned, the co-owners have an undivided interest in the property. They can divide that interest by subdividing the property and granting a part thereof to one of them. That would tantamount to a transfer of interest in the property in whichever mode the transfer is effected. This may be under the family arrangement, by way of a partition, in a trust by way of a settlement or amongst co-owners by way of actual possession in addition to the five transfers contemplated under the Transfer of Property Act, including the lease.
Transfer of Property Act, 1882 - Sections 58 and 5-Immovable property-Transfer of.-A transfer must be a transfer of an immovable property by an owner to someone else. There cannot be a transfer to oneself because such a transfer is meaningless. It would not bring a change in the character of ownership of the property and, therefore, would not be a transfer.
Transfer of Property Act, 1882 - Section 105-Creation of tenancy-Proof of.-A mere reliance upon the rent receipts to show the creation of a tenancy and a transfer of the title of the applicant to another party, who is claimed to have been put in possession, is in vain. The property continues to remain of the ownership of the applicant. The applicant is seen to have derived the ownership from C.J.A. Castellino, presumably by inheritance (though the relationship between C.J.A Castellino and himself is not specifically stated). There is no question of plot No. 606 being co-owned by any other co-owner. It is an admitted position that the registered office of the respondent is on plot No. 606. The applicant’s son is one of the directors. The annual reports show him to be a director. The entire property is garden resort house. The rent receipts of garden resort are in respect of three shops and one office. It is not known which is the other part of garden resort house where the registered office of the respondent is situate. The applicant has not shown that garden resort house consists only of shop Nos. 2, 3, 4 and office. Hence, it would be inequitable to disallow the execution in respect of the part of garden resort houses actually in possession of the respondent as its registered office.
Of course, neither the applicant nor the respondent would show the documentation with regard to the domicile of the company. But the claimant has produced copies of the annual reports statutorily required to be filed by the respondent under Sections 159 to 163 of the Companies Act in which the particulars, inter alia, with regard to the registered office of the company are given. The advocate for the claimant argued that the company deals in huge maritime contracts. It is not expected to have only a table space. The respondent-company has shown the said address in all the correspondence and in the litigation with the claimant. It would now be too late in the day to allow or reject the claim of the claimant to the immovable property of the company where its registered office is situate, specially in view of the fact that the only other claim is shown to be in favour of the sole proprietary concern of the applicant by virtue of the rent receipts produced by the applicant which on and from the date of the execution application in effect show no creation or in interest of any legal right, title and interest in favour of garden resort.
Transfer of Property Act, 1882 - Section 105 - Creation of tenancy - Proof of. - A mere reliance upon the rent receipts to show the creation of a tenancy and a transfer of the title of the applicant to another party, who is claimed to have been put in possession, is in vain. The property continues to remain of the ownership of the applicant. The applicant is seen to have derived the ownership from C.J.A. Castellino, presumably by inheritance (though the relationship between C.J.A Castellino and himself is not specifically stated). There is no question of plot No. 606 being co-owned by any other co-owner. It is an admitted position that the registered office of the respondent is on plot No. 606. The applicant’s son is one of the directors. The annual reports show him to be a director. The entire property is garden resort house. The rent receipts of garden resort are in respect of three shops and one office. It is not known which is the other part of garden resort house where the registered office of the respondent is situate. The applicant has not shown that garden resort house consists only of shop Nos. 2, 3, 4 and office. Hence, it would be inequitable to disallow the execution in respect of the part of garden resort houses actually in possession of the respondent as its registered office.
1.The Claimant obtained an Award against the Respondent. The Claimant has sought to execute the Award under its Execution Application dated 22.6.2006. The Claimant got the office premises and the movables along with the right, title and interest of the Respondent in the goodwill of the business together with the tenancy rights therein attached under Order 21 Rules 43 and 54 of the Code of Civil Procedure. The office premises is situate at Plot No.606, Garden Resort, SionTrombay Road, Mumbai 400 017. The Applicant has taken out this Chamber Summons for raising the attachment.
2.It is the case of the Applicant that he is the sole owner of the suit premises. He has created a tenancy right in one Garden Resort. That is a proprietary Concern of which he is the sole proprietor. He contends that, at the request of his son Agnello Castellino, who was a Director of the Respondent Company, he had given the Respondent Company a table space in his office premises in 1997. He further contends that he has not sublet the premises or transferred any interest or legal rights in the premises to the said Company or even to his son as the Director therein. He has also contended that prior to 31st March 2006, Garden Resort, his proprietary Concern, was a partnership Firm registered under the Indian Partnership Act, 1932 and by a Deed of Dissolution dated 5.4.2006, the partnership was dissolved on 31.3.2006 and he became the sole proprietor of Garden Resort. He has not shown the registration of the partnership Firm.
3.The Applicant has produced an Agreement dated 30.9.1942 between the District Deputy Collector and one C.J.A. Castellino in respect of plot No.606 admeasuring 1215 sq. yards. He has also produced a registered Indenture of Conveyance dated 27.11.1963 between one N.S. Coutto and the said C.J.A. Castellino and others under which the adjoining plot No.607 came to be transferred to the said C.J.A. Castellino and others. C.J.A. Castellino, therefore, coowned the property sought to be attached as well as the adjoining plot with other coowners. The Applicant claims through the said C.J.A. Castellino but has not shown is lineage.
4.The Applicant claims that his son Agnello Castellino was only given the table space and consequently could be, at best, his gratuitous licensee. He states that the business activities of the RespondentCompany were carried on at their office at Ballard Pier, Mumbai.
5.The Applicant has relied upon several rent receipts issued in the name of Garden Resort in respect of shop Nos,2, 3, 4 and the office from time to time since about March 1996. The Applicant has also produced the corresponding counterfoils of the rent receipts showing certain rent receipts issued. The Applicant has also produced the Bank passbook, showing entries of credit of rents paid by Garden Resort to the Applicant. It is shown that indeed the Applicant was collecting rent from Garden Resort.
6.Garden Resort has not been shown to be the registered partnership Firm. The Applicant contends that he is the sole proprietor of Garden Resort. If that is so, it can be seen that the Applicant as a successorintitle of one of the coowners of the plot of land under No.606, has sought to create a tenancy in favour of himself.
7.Black's Law Dictionary Eighth Edition page 1427 by Bryan A. Garner has defined a sole proprietorship as a business in which one person owns all the assets, owes all liabilities and operates in his or her personal capacity. Such a Concern is also termed as “individual proprietorship”.
8.To consider the bonafides of the case of the Applicant, the question that arises is whether the Applicant could have created a transfer by way of a lease, which is one of the five modes of transfers contemplated under the Transfer of Property Act in favour of himself represented by his proprietary Concern. The ordinary meaning of transfer in Black's Law Dictionary, Eighth Edition at page 1535 is, inter alia, a conveyance of a property or title from
