1 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 CIVIL JURISDICTION. ORIGINAL CIVIL JURISDICTION. ORIGINAL CIVIL JURISDICTION. CHAMBER CHAMBER CHAMBER SUMMONS NO.17 OF 1991 SUMMONS NO.17 OF 1991 SUMMONS NO.17 OF 1991 IN IN IN EXECUTION EXECUTION EXECUTION APPLICATION NO.261 OF 1990 APPLICATION NO.261 OF 1990 APPLICATION NO.261 OF 1990 IN IN IN MADRAS MADRAS MADRAS C.S.NO.929 OF 1988 C.S.NO.929 OF 1988 C.S.NO.929 OF 1988 M/s.Vikas Enterprises : Plaintiffs versus M/s.Soft Trimers and ors. : Defendants And Mrs.Veena Brij Seth : Applicant. Mr.Denzil D’Mello for the Plaintiffs. Mr.N.K.Mudnaney for the Applicant. CORAM CORAM CORAM : S.J.VAZIFDAR, J. : S.J.VAZIFDAR, J. : S.J.VAZIFDAR, J. DATED DATED DATED : 08th January 2008. : 08th January 2008. : 08th January 2008. P.C. P.C. P.C. 1. The Applicant has taken out this chamber summons for raising the attachment levied in respect of a flat and moveables therein pursuant to the order of attachment issued by this Court 2 under Order XXI Rule 54 of the Code of Civil Procedure. The applicant has also claimed damages of Rs.2,00,000/- for wrongful attachment. 2. The Madras High Court passed an ex-parte decree directing the defendants to pay to the plaintiff a sum of Rs.11,44,883.56 with further interest at the rate of 24% per annum on a sum of Rs.5,81,411.09 from the date of the said order till the date of realisation and the costs of the suit. The decree admittedly has become final. 3. On 13th December 1990 a warrant of attachment was issued under Order XXI Rule 54 of the Code of Civil Procedure by this Court attaching the aforesaid movable and immovable properties. On 17th December 1990 the said flat had been attached pursuant to the order dated 13th December 1990. The above chamber summons was filed on 11th January 1991. 4. Mr.D’Mello, appearing for the Plaintiffs, does not press Execution Application as far as the movable properties are concerned at this stage considering the view that I had taken in respect of the said flat. 3 5. The Applicant is the wife of Defendant No.2, who admittedly is bound by the decree jointly and severally with the other defendants. The applicant, however, contends that she is the owner of the said flat and that her husband - Defendant No.2 has no right, title and interest therein. 6. The applicant’s case is that by an agreement dated 3rd November 1978, her brother-in-law, i.e. the brother of her husband-defendant No.2, one Madan Mohan S. Seth and she entered into an agreement for the purchase of the said flat but that the name of Madan Mohan Seth was incorporated only as a matter of convenience. In 1979 various flat purchasers formed a society viz. Shree Mahant Krupa Co-operative Housing Society Ltd. The applicant was admitted as a member and the said Madan Mohan Seth was admitted as a joint member of the said society. The name of Madan Mohan Seth was subsequently deleted from the records of the society on his application. The applicant states that she is not in possession of the original share certificate as the flat is 4 hypothecated to a bank. The applicant further states that the electricity meter in the said flats stands in her name. . It is pertinent to note that in the first affidavit in support of the chamber summons dated 8th January 1991, there was no reference to an agreement dated 30th April 1985 and an alleged Memorandum of family arrangement of October 1988 which I shall refer to later. 7. In Paragraph 14 of the Affidavit-in-Reply dated 11th April 1991, the plaintiff denied that the flat belongs to the applicant and alleged that Madan Mohan Seth had given up his right in the said flat to Defendant No.2. That it was wrongfully stated that Madan Mohan Seth is the son of Defendant No.2 is of no consequence. 8. In the Applicant’s affidavit-in-rejoinder dated 22nd April 1991 also there is no reference to the agreement dated 30th April 1985 and the alleged Memorandum of family arrangement of October 1988. 9. By an order dated 26th June 2006, the 5 affidavit in lieu of examination-in-chief of the applicant was ordered to be treated as examination-in-chief of the applicant. The learned Judge also framed the following Issues:- ISSUES :- 1. Whether the applicant proves that she is the owner in respect of flat No.61, A Wing Building No.16, Manish Nagar, Andheri (W), Bombay - 400 058 ? 2. Whether the applicant proves that moveable article mentioned in prayer (a)(ii) of the Chamber Summons belong to her and are in her possession ? 3. Whether the plaintiffs prove that the premises and moveable property attached by the Sheriff of Bombay pursuant to the Warrant of Attachment issued by this Hon’ble Court are owned by the defendants Nos.2 and 3 and are liable to be attached pursuant to the decree passed against the defendants in Madras C.S.No.925 of 1989 ? 6 . In view of the statement made by Mr.D’Mello that the plaintiffs are not at present desirous of executing the decree in respect of the moveable properties, it is not necessary to decide Issue No.2. 10. The applicant examined only herself. The plaintiff and the defendants did not examine any witness. 11. The affidavit in lieu of examination-in-chief was filed in June 2006. The applicant contended that under the Agreement dated 3rd November 1978 entered into between the Builders on one hand and herself and the said Madan Mohan S. Seth on other hand, she purchased the said flat and that the name of said Madan Mohan S Seth was incorporated only as a matter of convenience. 12. I must pause here to record that although it is not clear from the notes of evidence, the counsel are agreed that all but two of the documents tendered before the learned Commissioner had been received and marked in evidence. The two documents, which are objected 7 to, are referred to in Paragraphs 8 and 9 of the Commissioner’s Report dated 25th July 2007 under the title "Recording of evidence on Commission". Those two documents are, the said Memorandum of family settlement and the alleged duplicate share certificate issued by the society. I will deal with the objection at the appropriate stage. . The applicant has also produced bills in respect of taxes and outgoings issued by the society. 13. In the further affidavit in lieu of examination-in-chief dated 25th July 2007 the applicant states that the plaintiff’s advocate took inspection of certain documents. She further states that the name of Madan Mohan S. Seth was incorporated in the records of the society only as a matter of convenience. However, in Paragraph 4 she states that in April 1985 Madan Mohan S. Seth expressed his desire to cease to be a joint member along with her in respect of the said flat on receipt of payment of Rs.1,57,200/- being his contribution for purchase of the said flat originally from the builder as he was in need of some funds. The applicant 8 further states that Madan Mohan S. Seth did not desire to transfer his share to the applicant but he agreed to do so only in the name of defendant No.2. In these circumstances, it is alleged that by the agreement dated 30th April 1985 entered into between Defendant No.2 and the said Madan Mohan S. Seth, Madan Mohan Seth transferred his share in the flat to the name of Defendant No.2. The applicant’s case is that the consideration for acquisition of Madan Mohan S. Seth’s share in the said flat was paid by her as stated in the affidavit. The applicant further states that subsequently it was agreed between Defendant No.2 and the applicant that upon deletion of the name of Madan Mohan S. Seth in the records of the society, Defendant No.2 would release his share in the name of the applicant and that the applicant would become the sole owner of the said flat. . According to the applicant, on 15th July 1988, Defendant No.2 requested the society to delete his name from the share certificate which the society did. 14. The applicant then refers to the alleged 9 memorandum of family settlement of October 1988. The same was objected to by Mr.D’Mello on the ground that the same was not registered. As far as the alleged memorandum of family settlement is concerned, Mr.Mudnaney clarifies that he is relying upon it only as declaration by the said Madan Mohan S. Seth that he has no right, title or interest in respect of the said flat and not as a document of transfer of any right of the said Madan Mohan S. Seth to the applicant. . In the circumstances the objection to the memorandum of family settlement is overruled and the document is taken on record only as a declaration to the said effect and not as a document of transfer of any right, title or interest of said Madan Mohan S. Seth in respect of the flat to the applicant. It is further clarified that the document is marked in evidence subject to proof of contents therein as well as proof of the truth of the contents thereof. The Memorandum is marked as Exhibit ‘4’. 15. Finally in the further affidavit in lieu of examination-in-chief the applicant has alleged that on 5th February 1989 the society, in its 10 10 10 Annual General Meeting, approved her name as the sole member in respect of the said flat and that the name of Defendant NO.2 was deleted from the share certificate in 1989. She further alleged that the original share certificate was lost or misplaced by her and that she had applied for a duplicate share certificate and the society issued a duplicate share certificate dated 19th December 1990. Mr.D’Mello objected to the same. . The objection is sustained as no basis for leading secondary evidence has been established. Further the xerox copy is not even a complete copy as the reverse of the share certificate is not produced. 16. The agreement dated 3rd November 1978 clearly states that it was entered into between the builders on one hand and the applicant and the said Madan Mohan S Seth on the other. In other words, the applicant and the said Madan Mohan S. Seth entered into the agreement jointly as purchasers of the said flat. There is nothing in the agreement which even remotely suggests that Madan Mohan Seth had no right, title or interest in the said flat and that the same was 11 11 11 purchased also in his name only for convenience as contended by the applicant. 17. That this contention is incorrect is further established inter-alia by what the applicant has herself stated in her further affidavit in lieu of examination-in-chief dated 25th July 2007 and in particular paragraph 4 thereof. The applicant has stated that Madan Mohan S Seth expressed his desire to cease to be a joint member along with the applicant in respect of the said flat "on receipt of payment of Rs.1,57,200/- being his contribution for purchase of the said flat originally from the builder as he was in need of some funds". It is not the applicant’s case that there was any dispute regarding his ownership of the said flat and that the said amount was paid to him only by way of settlement. The applicant admits that the said amount was paid to Madan Mohan S. Seth. 18. Moreover, it is important to note that the applicant has not established that she paid the amount of Rs.1,57,200/- to the said Madan Mohan S. Seth. The statement in this regard has not been proved in evidence. 12 12 12 19. This case is also belied by the next agreement viz. the agreement dated 30th April 1985 entered into between the said Madan Mohan S Seth and Defendant No.2. This agreement expressly states, in the recitals, that Madan Mohan S. Seth was the co-owner in respect of the said flat with the applicant; that the applicant and Madan Mohan S. Seth were the joint members of the society; that their names were entered in the records of the society as joint owners; that they were joint/associate members in respect of the said flat and that the applicant had approached Madan Mohan S Seth for transfer of the flat to Defendant No.2. . The operative part of the agreement throughout refers to Defendant No.2 as the purchaser of Madan Mohan S. Seth’s share in the said flat. The receipt clause also stated that Madan Mohan S. Seth had been paid by Defendant No.2 for his share in the said flat. There is nothing in the agreement which even remotely suggests that the agreement was entered into in the name of Defendant No.2 for the reasons alleged by the applicant. 13 13 13 20. There is nothing on record which establishes the applicant’s case that the Madan Mohan S. Seth did not have and was never to have any share in the said flat. Nor there is anything to indicate that the agreement dated 30th April 1985 was entered into in the name of Defendant No.2 only because Madan Mohan S Seth refused to transfer his share to the applicant. 21. The release deed is a document to which only Defendant No.2 and the applicant are parties. Defendant No.2 has not been examined. There is no suggestion that the relations between Defendant No.2 and the applicant are strained. The evidence adduced by the applicant does not establish either the contents or the truth of the contents of the release deed to which Defendant No.2 and the applicant are the only parties. It appears from the facts and circumstances of the case that this is a self serving document, obviously entered into around the time of, if not prior to the suit being filed. There is no explanation as to why this agreement of 1988 was entered into more than three years after the agreement dated 30th April 1985. 14 14 14 22. The applicant’s case is contrary to the entire record and to the record produced by the applicant herself. 23. The Plaintiff, however, did not establish that the applicant has no right title or interest in the said flat. In the circumstances, the orders passed in execution of the said decree can only relate to and shall be limited to the half share of Defendant No.2 in the said flat and shall not affect the half share of the applicant therein. 24. The notices for sale of the said flat shall be in respect of the undivided half share of Defendant No.2 in the said flat. The purchaser shall not be entitled to possession of the flat upon the sale of the said half share in the said flat but shall be entitled to all rights and remedies as the co-owner thereof alongwith the applicant including the right to demand and enforce a partition thereof. 25. The applicant shall pay the costs of this chamber summons to the plaintiffs fixed at 15 15 15 Rs.10,000/- within a period of eight weeks from today. The ad-interim order shall continue for a period of eight weeks from today to enable the applicant to challenge this order. ********** ********** **********