Advocates:
['A D PANDEY', 'KISHOR V TEMBE', '', 'KISSHOR V TEMBE']

: 1 :

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

CHAMBER SUMMONS NO.787 OF 2005

IN

EXECUTION APPLICATION NO.170 OF 2005

IN

SUMMARY SUIT NO.3215 OF 2001

Jaleshwar Singh

....Plaintiff

V/s.

M/s.Ekta Electronics & Ors.

....Defendants

And

The Chembur Nagarik Sahakari Bank Ltd. ....Applicant

WITH

CHAMBER SUMMONS NO.788 OF 2005

IN

EXECUTION APPLICATION NO.170 OF 2005

IN

SUMMARY SUIT NO.3215 OF 2001

Jaleshwar Singh

....Plaintiff

V/s.

M/s.Ekta Electronics & Ors.

....Defendants

And

Smt.Premlata Ambalal Jain

....Applicant

Mr.K.V.

Tembe

for

the

Applicants.

Mr.Anil Pandey for the Plaintiffs.

CORAM : S.J. VAZIFDAR, J.

DATED : 31ST JANUARY, 2006.

P.C. :

1.

The above Chamber Summonses have been taken

out by the respective Applicants for raising/setting

aside the attachment levied on Shop No.6, Chembur

: 2 :

pursuant to the warrant of attachment issued by this

Court. The Applicant in Chamber Summons No.788 of

2005 claims to be the owner of the said shop. The

Applicant in Chamber Summons No.787 of 2005 claims to

be the mortgagee in respect of the said shop.

2.

The decree was passed on 13.12.2004 pursuant

to the warrant of attachment issued on 31st May, 2005.

Pursuant thereto, the attachment was levied on the

said shop on 1st June, 2005.

3.

It is true that Defendant No.1 had purchased

the said shop in 1997 by a registered agreement. It

is however, important to note that on 11.4.1997,

Defendant No.3 mortgaged the shop in favour of the

Bank Applicant in Chamber Summons No.787 of 2005. The

mortgage was by way of equitable mortgage. It is

stated that the same was even registered. There is

however no dispute about the creation of the mortgage.

4.

An agreement in writing dated 26.3.2005 was

entered into between Defendant No.3 and the Applicant

in Chamber Summons No.788 of 2005, by which Defendant

No.3 sold the said shop to the Applicant in Chamber

Summons No.788 of 2005. The agreement was

subsequently registered. It is important to note that

: 3 :

the Applicant in Chamber Summons No.788 of 2005 was

granted a loan by the Applicant bank in Chamber

Summons No.787 of 2005 in respect of the said

purchase. Pursuant thereto, on 31.3.2005, a fresh

mortgage was executed by the Applicant in Chamber

Summons No.788 of 2005 in favour of the Applicant in

Chamber Summons No.787 of 2005.

5.

Thus the acquisition of the said shop and

mortgage in respect thereof for repayment of the dues

of the Applicant bank were created prior to the

attachment. In these circumstances, the attachment

cannot affect the rights of the Applicants in either

of the Chamber Summonses. (See (1990) 3, SCC 291).

6.

In the circumstances, Chamber Summons No.787

of 2005 is made absolute in terms of prayer (b).

Chamber Summons No.788 of 2005 is also made absolute

in terms of prayer (b).