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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

CHAMBER SUMMONS NO.1332 OF 2007

IN

EXE.APPLICATION NO.183 OF 2007

IN

SUMMARY SUIT NO.2391 OF 2003

Kirit Shah

.. Plaintiff

Versus

M/s.Spectrum Alloyed &

Resins Ltd.

.. Defendants

and

M/s.Machmann Engineering

Pvt.Ltd.

.. Applicant

Mr.B.S.Nayak i/b. Bhaskar & Co. for applicant

CORAM :

S.C.DHARMADHIKARI, J.

DATE

:

17th February 2009.

P.C.

.

This chamber summons is duly served. It

is for raising attachment on an immovable

property, more particularly described in prayer

(a) of the chamber summons. The applicant has

filed an affidavit of its Managing Director

stating that the applicant is a Private Limited

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Company registered under the Companies Act, 1956.

It is stated that the applicant is the owner of

the subject Gala and is in possession of the

same. In fact, if there had been no right, title

and interest of the applicant in the subject

gala, there was no question of the same being

mortgaged with the Oriental Commercial Bank to

obtain the loan from the said Bank. It is stated

that the deed of transfer is deposited with the

bank.

2.

Although, the affidavit of service shows

that the chamber summons is duly served on the

decree holder and none is present on their

behalf, I had directed the applicant to produce a

letter from the Oriental Bank stating therein

that the said Gala No.138/139 belongs to the

applicant and the same has been charged and/or

mortgaged on 29th May 2007. I had also directed

the applicant to produce original bills for

maintainance and receipts evidencing payment of

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the same.

3.

The letter from the said Bank certifies

that these galas belong to the applicant and it

has been charged on 29th March 2007 with the

Bank. In other words, the charge is created on

the said property and the same is continuing.

This certificate dated 13th February 2009 has

been perused by me. I have also perused the

bills raised by the Coop.Society which shows that

the society has raised bills in respect of Gala

No.138 even in February 2009 on the applicant.

Even prior thereto, bills have been raised on the

applicants and there are due payments made.

Bills for the month of May 2008 uptill February

have been produced.

4.

The above documents clearly show that the

property belongs to the applicant as stated in

the affidavit in support and not to the Judgement

Debtor - defendant. There is no affidavit in

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reply. In fact, one Spectrum Alloyed and Resins

Ltd. had transferred this property under a

registered deed of transfer to the applicant on

28th January 2004. A copy of the registered deed

is also annexed to the affidavit in support. It

is in such circumstances, that I am satisfied

that under the warrant of attachment, the decree

holder could not have attached Gala No.138

Hindustan Kohinoor Industrial Complex, Coop.

Society Ltd., opposite Telephone Exchange,

L.B.S.Road, Vikhroli Mumbai 400 083 in execution

of the decree passed on 7th June 2005. The deed

of transfer shows that the same is registered

prior to the date of decree. Thus, it could not

have been made the subject matter of attachment.

Thus, on both counts, that the property does not

belong to the judgement debtor and that it could

not have been made subject matter of attachment,

the chamber summons succeeds. It is made

absolute in terms of prayer clause (a).

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(S.C.Dharmadhikari, J)