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2013 Supreme(Bom) 929
High Court of Judicature at Bombay
ANOOP V. MOHTA, J.
Mahindra and Mahindra Financial Services Ltd. & Others
Versus
Vishal S. Bagadia & Another
Chamber Summons No. 1970 of 2011 In Execution Application No. 1070 of 2011 In ARB Case No.16 of 2009
Decided on : 06-05-2013
For the Applicants:Naushad Engineer, Dhiraj Mhetre i/by M/s. Desai & Diwanji, Advocates.
For the Respondents: None.
Headnote:Civil Procedure Code, 1908 - Order XXI, Rules 43 and 54, Section 35 - Order of attachment of property.
Order of attachment of property on basis of mere residential address provided by respondent-judgment-debtor is illegal. - As recorded already, there is no denial and/or any sort of contra material placed on record by the decree holder in view of the specific averments so made by the applicant along with the copies of registered documents to show the ownership, title and the shares in their name of the property in question.
The applicants were never party and/or concerned with the proceedings initiated by the claimant against the respondents for the alleged car loan. They were not even parties to t his proceeding at any point of time. It appears that the respondents, for whatever may be the reason and inspite of above transfer of property, provided Flat No. 23 as their res idential address. The award was passed accordingly. None appeared for the respondents. The plaintiffs, therefore, based. upon the residential address without verifying the title, ownership, proceeded to execute the Award against the respondents and accordingly prayed for attachmen t of the property. The office also, without verifying the basic documents and requirement, just issued the warrant in question. That resulted into attachment of movable as well as immovable property of the applicant. Though it was not admittedly owned by the respondent and respondents were not concerned with any of the proceedings initiated by the claimant against them. Court is inclined to observe that the attachment of property in such fashion, whether movable or immovable, based upon the residential address itself, is contrary to the provisions of law.
The office also just cannot accept the statement so made, based upon the address of the respondents, to attach the property in such fashion. The claimant or the decree holder whosoever want to attach the property and/or want the Court’s to issue warrant of attachment, for movable or immovable property, must provide the basic documents on record or at least positive averments to show that the properties which they want to attach belongs to and/or owned by the respondents and/or at least have interest of the respondents of such nature that the respondents can dispose it of. All these averments are absent.
There is no averments even on record to show that the movable and/or immovable property in question of which they want attachment was even charged and/or any right or interest created at any point of time. As noted, the car loan was obtained by the respondents. The claimant/decree holder, however, got the attachment order which definitely resulted into all sorts of harassment for no-fault of applicants.
Though served, none appeared for the claimants.
2. Based upon Arbitration Case No. 16 of 2009, original claimant has filed this Execution Application to recover a sum of Rs.11,33,319/- with interest from 5 September 2009 pursuance to the Loan Agreement between claimant and the Respondent. Award dated 15 March 2011 has attained the finality. The Respondents are the judgment debtors against whom the Execution Application so filed was intended to proceed with. However, warrant of attachment of immovable property under Order XXI, Rule 54 of Code of Civil Procedure (CPC) was issued and the Applicant's property situated at Flat No.23, 2nd Floor, New Sunita Building, Opp. Colaba Post Office, Colaba, Mumbai 400 005, got attached.
3. By this Chamber Summons, along with supporting affidavit dated 24 April 2011, the Applicant have placed on record substantial documents to show the ownership and title of the property, which remained uncontroverted till this date. The basic events are that after due search and inquiry and verification of requisite documents and after completing the formalities as required, the Applicants paid to the Society on 15 July 2008, a substantial amount towards earnest money of Rs.50,00,000/-. The notice was accordingly issued to the society informing their intention to transfer their shares, right and title in the flat. The society issued No Objection Certificate (NOC) on 20 July 2008. The title got investigated thereafter again. Search report dated 25 July 2008 shows the details of the earlier transactions. The Applicant's Advocate invited claims from the public and published notice accordingly on 25 July 2008. There was no objection whatsoever received.
4. The mortgage loan outstanding with Dena Bank, Colaba Branch, was repaid on 5 September 2008 and accordingly no objection to lift its charge on the flat was issued. The Applicants and the society ultimately executed/registered a Sale Deed on 9 September 2008. The requisite stamp duty was paid by the Applicants. On 9 September 2008, a Declaration-cum-Indemnity Bond and stating that they have repaid the loan amount on 15 September 2008 of the flat was executed. The present Execution Application admittedly not take out by the said Bank.
5. Pursuance to the Sale Deed, the Applicant got possession on 9 September 2008 and on the same day, they have also submitted Form No.22 to the Society for theirmembership. Now the Applicants are the members of the Society and are in possession of the flat as they have purchased it by executing the necessary registered documents. In the result, the Applicants definitely, prior to filing of this Claim Petition by the claimant, have been in possession of the property being legal owner of the said flat, apart from the share certificate in their name.
6. The claimant/decree holder, based upon vague averments made by the decree holder prayed for warrant of attachment of movable as well as immovable property as contemplated under Order XXI, Rules 43 and 54 of CPC. Without filing on record the requisite documents to show that the ownership of the flat in question is of judgment debtor, the averments are made to attach the property along with fixtures and furnitures. On record, there are no supporting documents to show that the property in question is owned by the Respondents on the date of even filing of proceedings in the year 2009 and/or even on the date of Award dated 15 March 2011. The residential address, even if any, given and/or mentioned that itself cannot be the reason for the decree holder to attach the movable or immovable property of the third person in such fashion.
7. As recorded already, there is no denial and/or any sort of contra material placed on record by the decree holder in view of the specific avements so made by the Applicant along with the copies of registered documents to show the ownership, title and the shares in their name of the property in question. The Applicants were never party and/or concer
