1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.499 OF 2010 IN SUMMARY SUIT NO.1447 OF 2005 Suresh N. Golani ...Plaintiff Vs. Jagdish Assan Golani ...Defendant And ASREC (India) Limited ...Applicant Mr. M. Sunil M. Kadam, Advocate for Applicant Ms. S.A. Dhamale, Advocate for Plaintiff CORAM : SMT. ROSHAN DALVI, J. DATED : 28TH APRIL, 2010 P.C. : 1. This Chamber Summons has been served since 5 th April 2010 upon the Plaintiff as well as the Defendant. No affidavit in reply is filed by either of the parties. The Chamber Summons was adjourned on 12 th April 2010 as though served, no affidavit in reply was filed. Even today the Plaintiff’s Advocate asked for time. Application for further time is refused. The Plaintiff’s Advocate is heard on merits. 2 2. The Applicant has been assigned the decree obtained by State Bank of India (SBI) since 1985 against the Defendant herein under the assignment agreement dated 16 th March 2007 executed by the SBI with the Applicant. The Applicant has proceeded in execution. The decree obtained by SBI in the Suit came to be modified in the Appeal filed therefrom as per Consent Terms between the parties viz., the Defendants’ father and SBI. Under the Consent Terms the Defendants’ father agreed inter alia not to dispose off, alienate, encumber, part with possession, transfer or create any 3 rd party right in two properties being one factory building and one residential premises shown in Schedules A & B to the Consent Terms. The Defendant’s father having expired, the Consent Terms are to be executed against the Defendant as the Judgment Debtor. The residential premises has been sold in execution of another decree by another creditor LIC for Rs. 50 lacs. After LIC’s decree was satisfied Rs.23.08 lacs has been deposited to the credit of this Suit. From that amount the claim of the Plaintiff has been satisfied. 3. The Applicant is not a secured Creditor. The Judgment Debtor had undertaken not to alienate the property shown in Schedule -B. TheApplicant’s Advocate contends that the proceeds of that property must be legitimately be credited to the account of the Applicant who has been assigned the decree by SBI with whom the Consent Decree was passed in which the undertaking was given. 4. Nevertheless the Plaintiff claim is satisfied. The Applicant requires the Plaintiff to bring back the said amount and deposit it in this Court. The 3 Plaintiff’s claim is to the extent of Rs.13,45,633/-. Even after the satisfaction of the Plaintiff’s claim Rs.12,94,215/-has remained to the credit of the Suit invested in the F.D.R of Central Bank. I am told that it is to mature on 28 th May 2010. The Applicant has applied for allowing it to withdraw that amount in part satisfaction of its claim in execution against the Defendant. 5. The Applicant has also applied for an order and direction against the Plaintiff to bring back Rs.13,45,633/- withdrawn by the Plaintiff along with interest thereon and to pay it over to the Applicant. 6. The Applicant claims that it has a prior right in view of the undertaking given by the Defendant’s father in the Consent Terms filed by the parties in Appeal. The Consent Terms were filed on 3 rd May 1986. The Consent Terms only show the undertaking not to dispose off, alienate, encumber, part with possession, transfer or create any 3 rd party right in the residential premises shown in Schedule-B. The Defendant has not breached the undertaking. Another Creditor has executed its decree. The undertaking cannot give the Applicant any prior claim, right or charge. 7. The Applicant further claims that it has already proceeded in execution prior to the Plaintiff herein. The Applicant’s assignor’s Suit was a Special Civil Suit No.8/1985 filed in Thane Civil Court, from which the Appeal was filed in this Court, in which Consent Terms came to be filed. State Bank of India filed Execution Application on 6 th July 1993. The Advocate for the Applicant states that thereafter notice under Order 21 Rule 22 of the C.P.C 4 came to be taken out by the State Bank of India in 1997. 8. All the Suits and decrees in this Court filed by all the Banks came to be transferred to the DRT. The Execution Application in the Suit of State Bank of India had not been transferred for many years. In the meantime the Plaintiff’s decree has been executed by payments allowed to be made upon withdrawal of the amounts deposited by LIC, after the claim of LIC was settled. 9. The Applicant has not shown any prior charge. The Applicant has also not shown any case as to why the Plaintiff’s decree which is already satisfied can be modified because the Applicant’s predecessor State Bank of India took out an application in execution and did not proceed in Execution. Hence the following order:- 1. Chamber Summons is made absolute in terms of prayer clause (a). 2. Prayer (b) is rejected. Prayer (d) is unnecessary and hence not granted. 3. The Prothonotary & Senior Master of this Court shall allow the Applicant herein to withdraw Rs.12,94,215/- along with all the accrued interest thereon. 4. The Applicant shall be entitled to proceed in Execution against the property mentioned in Schedule-A in the Consent Terms or otherwise in accordance with law. 5. Chamber Summons is disposed off accordingly. (SMT. ROSHAN DALVI, J.)