1 Ld IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO. 55 OF 2006 SUMMONS NO. 55 OF 2006 SUMMONS NO. 55 OF 2006 IN IN IN EXECUTION EXECUTION EXECUTION APPLICATION APPLICATION APPLICATION 21 OF 2005 21 OF 2005 21 OF 2005 IN IN IN SUMMONS SUMMONS SUMMONS FOR FOR FOR JUDGMENT NO.1328 OF 2001 JUDGMENT NO.1328 OF 2001 JUDGMENT NO.1328 OF 2001 IN IN IN SUMM.SUIT SUMM.SUIT SUMM.SUIT NO.3866 NO.3866 NO.3866 OF 2001 OF 2001 OF 2001 Mahesh Mahesh Mahesh Chandru Advani Chandru Advani Chandru Advani ......... Plaintiff Plaintiff Plaintiff vs vs vs Mahesh Mahesh Mahesh Patel Patel Patel ...... Defendant Defendant Defendant & Ramji Ramji Ramji Keshavji Patel Keshavji Patel Keshavji Patel ...... Applicant Applicant Applicant Mr.Salim Mr.Salim Mr.Salim Hakim for Plaintiff Hakim for Plaintiff Hakim for Plaintiff Ms.Sunita Ms.Sunita Ms.Sunita Tiwari Tiwari Tiwari with Mr.Firdause Irani for with Mr.Firdause Irani for with Mr.Firdause Irani for Applicant Applicant Applicant CORAM CORAM CORAM : : : SMT R.S.DALVI, J SMT R.S.DALVI, J SMT R.S.DALVI, J DATED DATED DATED : : : 10th January, 2007 10th January, 2007 10th January, 2007 P.C. P.C. P.C. 1.1.1. This Chamber Summons is taken out by the This Chamber Summons is taken out by the This Chamber Summons is taken out by the applicant applicant applicant who claims to be owner of a shop got who claims to be owner of a shop got who claims to be owner of a shop got attached attached attached in execution of a decree passed in the in execution of a decree passed in the in execution of a decree passed in the above above above suit suit suit on 17th March, 2003. The shop which has on 17th March, 2003. The shop which has on 17th March, 2003. The shop which has been been been attached in execution is shop no.8, attached in execution is shop no.8, attached in execution is shop no.8, Vishwananak Vishwananak Vishwananak Apts, Opp Hindusthan Lever, Chakala, Apts, Opp Hindusthan Lever, Chakala, Apts, Opp Hindusthan Lever, Chakala, Andheri Andheri Andheri (E) Mumbai-99 (the said shop). (E) Mumbai-99 (the said shop). (E) Mumbai-99 (the said shop). 2.2.2. The applicant has relied upon a copy of a The applicant has relied upon a copy of a The applicant has relied upon a copy of a registered registered registered agreement showing the purchase of the agreement showing the purchase of the agreement showing the purchase of the 2 said said said shop by the applicant from one M/s Sangeeta shop by the applicant from one M/s Sangeeta shop by the applicant from one M/s Sangeeta Construction Construction Construction Company for Rs.12,00,000/-. The Company for Rs.12,00,000/-. The Company for Rs.12,00,000/-. The receipt receipt receipt clause of the agreement shows payment of clause of the agreement shows payment of clause of the agreement shows payment of RS.6,00,000/- RS.6,00,000/- RS.6,00,000/- made by cheque no. 876642 dated 3rd made by cheque no. 876642 dated 3rd made by cheque no. 876642 dated 3rd April, April, April, 2002. 2002. 2002. 3.3.3. The applicant has produced the statement of his The applicant has produced the statement of his The applicant has produced the statement of his account account account with Punjab and Maharashtra Coop Bank Ltd with Punjab and Maharashtra Coop Bank Ltd with Punjab and Maharashtra Coop Bank Ltd for for for the relevant period showing the payment under the relevant period showing the payment under the relevant period showing the payment under the the the said cheque made to Sangeeta Construction said cheque made to Sangeeta Construction said cheque made to Sangeeta Construction Company. Company. Company. Further payment of Rs.6,00,000/- has been Further payment of Rs.6,00,000/- has been Further payment of Rs.6,00,000/- has been made made made to Sangeeta Construction Company on 10th to Sangeeta Construction Company on 10th to Sangeeta Construction Company on 10th April, April, April, 2002. It is contended on behalf of the 2002. It is contended on behalf of the 2002. It is contended on behalf of the applicant applicant applicant upon the Court’s querry that the upon the Court’s querry that the upon the Court’s querry that the applicant applicant applicant took various loans from persons to took various loans from persons to took various loans from persons to generate generate generate funds for purchasing the said shop and has funds for purchasing the said shop and has funds for purchasing the said shop and has thereafter thereafter thereafter repaid the loans. repaid the loans. repaid the loans. 4.4.4. The applicant has inter alia relied upon the The applicant has inter alia relied upon the The applicant has inter alia relied upon the electricity electricity electricity bills in the name of the applicant for bills in the name of the applicant for bills in the name of the applicant for the the the said shop dated 15th January, 2003. and the said shop dated 15th January, 2003. and the said shop dated 15th January, 2003. and the receipt receipt receipt of the cooperative society showing various of the cooperative society showing various of the cooperative society showing various payments payments payments to the society under their bill no.31103 to the society under their bill no.31103 to the society under their bill no.31103 also also also in the name of the applicant. Prima facie, in the name of the applicant. Prima facie, in the name of the applicant. Prima facie, therefore therefore therefore the the the applicant has shown that the property applicant has shown that the property applicant has shown that the property attached attached attached does not belong to the judgment debtor but does not belong to the judgment debtor but does not belong to the judgment debtor but toto to him. him. him. 3 5.5.5. The applicant has also shown how he has dealt The applicant has also shown how he has dealt The applicant has also shown how he has dealt with with with his his his ownership premises after its purchase. He ownership premises after its purchase. He ownership premises after its purchase. He has has has produced the unregistered agreement between produced the unregistered agreement between produced the unregistered agreement between himself himself himself and one Ramesh Natha Patel as a licencee and one Ramesh Natha Patel as a licencee and one Ramesh Natha Patel as a licencee having having having given the said premises on licence from 1st given the said premises on licence from 1st given the said premises on licence from 1st August, August, August, 2002 2002 2002 to 30th April, 2005. The licencee was to 30th April, 2005. The licencee was to 30th April, 2005. The licencee was toto to carry on business in the name and style of carry on business in the name and style of carry on business in the name and style of ’Jigna ’Jigna ’Jigna Computer Stores’ and in the said premises. Computer Stores’ and in the said premises. Computer Stores’ and in the said premises. The The The defendant in the suit is one Mahesh Patel. It defendant in the suit is one Mahesh Patel. It defendant in the suit is one Mahesh Patel. It isisis contended on behalf of the plaintiff that his contended on behalf of the plaintiff that his contended on behalf of the plaintiff that his brother brother brother and and and he carried out business together albeit he carried out business together albeit he carried out business together albeit as as as sole sole sole proprietors and received the goods and made proprietors and received the goods and made proprietors and received the goods and made payments payments payments by cheques alternatively. The cheques by cheques alternatively. The cheques by cheques alternatively. The cheques have have have been dishonoured. It is not known that Ramesh been dishonoured. It is not known that Ramesh been dishonoured. It is not known that Ramesh Natha Natha Natha Patel who is shown as licencee of the Patel who is shown as licencee of the Patel who is shown as licencee of the applicant applicant applicant is the same Ramesh Patel who is the is the same Ramesh Patel who is the is the same Ramesh Patel who is the brother brother brother of the defendant. The defendant is shown of the defendant. The defendant is shown of the defendant. The defendant is shown toto to be be be carrying on business in the name and style of carrying on business in the name and style of carrying on business in the name and style of ’Rangila ’Rangila ’Rangila Computers’or ’Rangila Computers skills.’ Computers’or ’Rangila Computers skills.’ Computers’or ’Rangila Computers skills.’ Even Even Even if the licencee in the agreement with the if the licencee in the agreement with the if the licencee in the agreement with the applicant applicant applicant is the same Ramesh Patel, the licence is the same Ramesh Patel, the licence is the same Ramesh Patel, the licence agreement agreement agreement shows that he was not the owner but only shows that he was not the owner but only shows that he was not the owner but only a licencee. At best, brother of the defendant may licencee. At best, brother of the defendant may licencee. At best, brother of the defendant may have have have licenced licenced licenced the premises from where he carried on the premises from where he carried on the premises from where he carried on the the the business of computer stationery albeit in business of computer stationery albeit in business of computer stationery albeit in another another another name. name. name. He, therefore gave an impression and He, therefore gave an impression and He, therefore gave an impression and 4 made made made a representation that he owned the shop which a representation that he owned the shop which a representation that he owned the shop which he he he did not. did not. did not. 6.6.6. The applicant terminated the said licence and The applicant terminated the said licence and The applicant terminated the said licence and has has has thereafter sought to utilise his premises for thereafter sought to utilise his premises for thereafter sought to utilise his premises for ATM ATM ATM with Citi Bank. The agent of Citi Bank one with Citi Bank. The agent of Citi Bank one with Citi Bank. The agent of Citi Bank one Euro Euro Euro Net City Pvt.Ltd has entered into a leave and Net City Pvt.Ltd has entered into a leave and Net City Pvt.Ltd has entered into a leave and licence licence licence agreement agreement agreement as well as service agreement with as well as service agreement with as well as service agreement with the the the applicant. The leave and licence agreement applicant. The leave and licence agreement applicant. The leave and licence agreement with with with Euronet City Pvt.Ltd is registered. The Euronet City Pvt.Ltd is registered. The Euronet City Pvt.Ltd is registered. The applicant applicant applicant has produced a xerox copy showing the has produced a xerox copy showing the has produced a xerox copy showing the stamp stamp stamp and seal of the Sub-Registrar of Assurances and seal of the Sub-Registrar of Assurances and seal of the Sub-Registrar of Assurances and and and registration particulars. The service registration particulars. The service registration particulars. The service agfreement agfreement agfreement is executed by the applicant as well as is executed by the applicant as well as is executed by the applicant as well as by by by his wife with the agent of Citi Bank Euro Net his wife with the agent of Citi Bank Euro Net his wife with the agent of Citi Bank Euro Net Service Service Service Pvt.Ltd. The service agreement is not Pvt.Ltd. The service agreement is not Pvt.Ltd. The service agreement is not registered. registered. registered. 7.7.7. Under the said service agreement, the applicant Under the said service agreement, the applicant Under the said service agreement, the applicant has has has received received received various amounts from time to time from various amounts from time to time from various amounts from time to time from Citi Citi Citi Bank. These are stated to be the licence Bank. These are stated to be the licence Bank. These are stated to be the licence fees. fees. fees. The licence fees under the agreement is The licence fees under the agreement is The licence fees under the agreement is shown shown shown to be Rs.18,000/- per month. It is contended to be Rs.18,000/- per month. It is contended to be Rs.18,000/- per month. It is contended on on on behalf of the applicant that the licence fees behalf of the applicant that the licence fees behalf of the applicant that the licence fees are are are received received received from Citi Bank partly by the applicant from Citi Bank partly by the applicant from Citi Bank partly by the applicant and and and partly partly partly by his wife and are accordingly credited by his wife and are accordingly credited by his wife and are accordingly credited inin in their respective a/cs. The bank statement of their respective a/cs. The bank statement of their respective a/cs. The bank statement of 5 the the the applicant shows various credit entries of Citi applicant shows various credit entries of Citi applicant shows various credit entries of Citi Bank Bank Bank from month to month though they are not for from month to month though they are not for from month to month though they are not for Rs.18,000/- Rs.18,000/- Rs.18,000/- per month. per month. per month. 8.8.8. Upon my querry, the applicant has produced two Upon my querry, the applicant has produced two Upon my querry, the applicant has produced two counter counter counter foils of pay and slip books of January, foils of pay and slip books of January, foils of pay and slip books of January, 2007 2007 2007 showing showing showing 2 separate amounts credited in the a/c 2 separate amounts credited in the a/c 2 separate amounts credited in the a/c of of of the applicant as well as his wife on 9th the applicant as well as his wife on 9th the applicant as well as his wife on 9th January, January, January, 2007. 2007. 2007. 9.9.9. The applicant has accordingly shown his The applicant has accordingly shown his The applicant has accordingly shown his ownership ownership ownership and has further substantiated user of the and has further substantiated user of the and has further substantiated user of the premises premises premises by himself. by himself. by himself. 10. 10. 10. It is contended on behalf of the applicant It is contended on behalf of the applicant It is contended on behalf of the applicant that that that the notice of demand sent by the plaintiff to the notice of demand sent by the plaintiff to the notice of demand sent by the plaintiff to the the the address of the applicant was addressed to the address of the applicant was addressed to the address of the applicant was addressed to the defendant defendant defendant and his brother Ramesh Patel and has been and his brother Ramesh Patel and has been and his brother Ramesh Patel and has been received received received thereat. The acknowledgment slip of thereat. The acknowledgment slip of thereat. The acknowledgment slip of registered registered registered post shows the receipt. It has been post shows the receipt. It has been post shows the receipt. It has been replied replied replied by the advocate of the defendant who had by the advocate of the defendant who had by the advocate of the defendant who had represented represented represented Ramesh Patel together with the said Ramesh Patel together with the said Ramesh Patel together with the said reply. reply. reply. Those aspects show collusion between the Those aspects show collusion between the Those aspects show collusion between the two two two brothers but, not collusion between the brothers but, not collusion between the brothers but, not collusion between the defendant defendant defendant and and and the applicant. Therefore, though the the applicant. Therefore, though the the applicant. Therefore, though the plaintiff plaintiff plaintiff could have been misled by the defendant could have been misled by the defendant could have been misled by the defendant 6 and and and his his his brother by making a representation that the brother by making a representation that the brother by making a representation that the attached attached attached shop belonged to them, the applicant has shop belonged to them, the applicant has shop belonged to them, the applicant has shown shown shown that infact it does not. Consequently, the that infact it does not. Consequently, the that infact it does not. Consequently, the attachment attachment attachment levied on the applicant’s shop is levied on the applicant’s shop is levied on the applicant’s shop is required required required to be raised. to be raised. to be raised. 11. 11. 11. Chamber Summons is made absolute in terms of Chamber Summons is made absolute in terms of Chamber Summons is made absolute in terms of prayer prayer prayer clause (a). clause (a). clause (a). 12. 12. 12. No order as to costs. No order as to costs. No order as to costs. (Smt (Smt (Smt R.S.Dalvi,J) R.S.Dalvi,J) R.S.Dalvi,J)