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 ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO. 1395 OF 2005 SUMMONS NO. 1395 OF 2005 SUMMONS NO. 1395 OF 2005 IN IN IN EXE.APPLN EXE.APPLN EXE.APPLN NO.375 NO.375 NO.375 OF 2003 OF 2003 OF 2003 IN IN IN SUMM. SUMM. SUMM. SUIT SUIT SUIT NO. 826 OF 2001 NO. 826 OF 2001 NO. 826 OF 2001 Jetharam Jetharam Jetharam Govaji Chaudhary .. Govaji Chaudhary .. Govaji Chaudhary .. Plaintiff Plaintiff Plaintiff vs vs vs Techno Techno Techno Mech Inds .. Mech Inds .. Mech Inds .. Defendant Defendant Defendant & Atul Atul Atul Harbada Harbada Harbada ...... Applicant Applicant Applicant Mr.H.V.Chande Mr.H.V.Chande Mr.H.V.Chande for Plaintiff for Plaintiff for Plaintiff Mr.G.S.Bhat Mr.G.S.Bhat Mr.G.S.Bhat for Applicant for Applicant for Applicant CORAM CORAM CORAM : : : SMT R.S.DALVI, J SMT R.S.DALVI, J SMT R.S.DALVI, J DATE DATE DATE : : : 16th January, 2007 16th January, 2007 16th January, 2007 P.C. P.C. P.C. 1.1.1. The plaintiff has obtained exparte decree in The plaintiff has obtained exparte decree in The plaintiff has obtained exparte decree in the the the above Summary suit on 27th March, 2002. The above Summary suit on 27th March, 2002. The above Summary suit on 27th March, 2002. The plaintiff plaintiff plaintiff has yet to execute the decree by has yet to execute the decree by has yet to execute the decree by attachment attachment attachment of the property being A/10,Bhagirith of the property being A/10,Bhagirith of the property being A/10,Bhagirith Condominium Condominium Condominium J.P.Nagar, Goregaon (E) Bombay-63. J.P.Nagar, Goregaon (E) Bombay-63. J.P.Nagar, Goregaon (E) Bombay-63. 2.2.2. The applicant claims that the said flat belongs The applicant claims that the said flat belongs The applicant claims that the said flat belongs toto to him and cannot be attached and has applied for him and cannot be attached and has applied for him and cannot be attached and has applied for raising raising raising the attachment. The applicant must the attachment. The applicant must the attachment. The applicant must therefore therefore therefore show his ownership rights in the said show his ownership rights in the said show his ownership rights in the said flat. flat. flat. The applicant has produced the original sale The applicant has produced the original sale The applicant has produced the original sale 2 deed deed deed on a stamp paper of Rs.20/- executed between on a stamp paper of Rs.20/- executed between on a stamp paper of Rs.20/- executed between the the the defendants and the applicant showing sale of defendants and the applicant showing sale of defendants and the applicant showing sale of the the the said flat of 600 sq.ft forRs.3,00,000/-. The said flat of 600 sq.ft forRs.3,00,000/-. The said flat of 600 sq.ft forRs.3,00,000/-. The document document document is unregistered and inadequaely stamped, is unregistered and inadequaely stamped, is unregistered and inadequaely stamped, The The The document document document is not even stamped as an agreement of is not even stamped as an agreement of is not even stamped as an agreement of sale sale sale at the relevant time. The applicant cannot at the relevant time. The applicant cannot at the relevant time. The applicant cannot show show show by by by such document the execution as reflected in such document the execution as reflected in such document the execution as reflected in the the the document. Hence, the applicant cannot show document. Hence, the applicant cannot show document. Hence, the applicant cannot show himself himself himself to be a bonafide purchaser for value to be a bonafide purchaser for value to be a bonafide purchaser for value without without without notice of the plaintiffs’ claim in suit as notice of the plaintiffs’ claim in suit as notice of the plaintiffs’ claim in suit as on on on the date of the Agreement. An agreement of the the date of the Agreement. An agreement of the the date of the Agreement. An agreement of the kind kind kind relied upon by the applicant can be easily relied upon by the applicant can be easily relied upon by the applicant can be easily back-dated. back-dated. back-dated. Hence, the applicant cannot rely upon Hence, the applicant cannot rely upon Hence, the applicant cannot rely upon such such such a a a document in a court of law to obtain reliefs document in a court of law to obtain reliefs document in a court of law to obtain reliefs for for for protection of the property sought to be protection of the property sought to be protection of the property sought to be transferred transferred transferred under such an Agreement. under such an Agreement. under such an Agreement. 3.3.3. It is argued on behalf of the applicant that It is argued on behalf of the applicant that It is argued on behalf of the applicant that the the the applicant can get the defect rectified by applicant can get the defect rectified by applicant can get the defect rectified by payment payment payment of stamp duty and by registering the of stamp duty and by registering the of stamp duty and by registering the documents. documents. documents. The defendant has been absconding. An The defendant has been absconding. An The defendant has been absconding. An exparte exparte exparte decree has been passed. The defendant has decree has been passed. The defendant has decree has been passed. The defendant has not not not appeared in any of the proceedings of the suit appeared in any of the proceedings of the suit appeared in any of the proceedings of the suit or or or in execution. The defendant is not available in execution. The defendant is not available in execution. The defendant is not available for for for executing executing executing the Deed of Confirmation and also for the Deed of Confirmation and also for the Deed of Confirmation and also for late late late registration registration registration of the document. It is argued on of the document. It is argued on of the document. It is argued on behalf behalf behalf of the applicant that after giving a public of the applicant that after giving a public of the applicant that after giving a public 3 notice, notice, notice, the applicant alone can get the documents the applicant alone can get the documents the applicant alone can get the documents registered. registered. registered. No such procedure is shown to be No such procedure is shown to be No such procedure is shown to be prescribed prescribed prescribed by law. by law. by law. 4.4.4. The applicant has applied for raising of the The applicant has applied for raising of the The applicant has applied for raising of the attachment attachment attachment claiming his right, title and interest claiming his right, title and interest claiming his right, title and interest inin in the attached flat. The title has not passed to the attached flat. The title has not passed to the attached flat. The title has not passed to the the the applicant. The applicant has therefore no applicant. The applicant has therefore no applicant. The applicant has therefore no legal legal legal right in the premises. Interest of the right in the premises. Interest of the right in the premises. Interest of the applicant applicant applicant is at best as an unregistered holder of is at best as an unregistered holder of is at best as an unregistered holder of the the the property. property. property. 5.5.5. The applicant has produced a duplicate share The applicant has produced a duplicate share The applicant has produced a duplicate share certificate certificate certificate no.46 issued on 26th March, 1999. no.46 issued on 26th March, 1999. no.46 issued on 26th March, 1999. Reverse Reverse Reverse of of of the certificate shows transaction of the the certificate shows transaction of the the certificate shows transaction of the applicant applicant applicant which is dt.27th December, 1998 which is which is dt.27th December, 1998 which is which is dt.27th December, 1998 which is prior prior prior to the issuance of the certificate. The to the issuance of the certificate. The to the issuance of the certificate. The original original original certificate certificate certificate which would have passed to the which would have passed to the which would have passed to the applicant applicant applicant at at at the time of execution of the documents the time of execution of the documents the time of execution of the documents and and and at at at the time of transfer of the flat to his name the time of transfer of the flat to his name the time of transfer of the flat to his name isisis also not produced. The lack of registration, also not produced. The lack of registration, also not produced. The lack of registration, lack lack lack of of of payment of stamp duty as well as absence of payment of stamp duty as well as absence of payment of stamp duty as well as absence of the the the original share certificate shows that the original share certificate shows that the original share certificate shows that the documents documents documents obtained by the applicant may be got up obtained by the applicant may be got up obtained by the applicant may be got up atatat a later date. a later date. a later date. 6.6.6. Consequently, to test the applicant’s claim on Consequently, to test the applicant’s claim on Consequently, to test the applicant’s claim on 4 merits, merits, merits, contemporaneous evidence at least must be contemporaneous evidence at least must be contemporaneous evidence at least must be produced produced produced by the applicant which would show the by the applicant which would show the by the applicant which would show the execution execution execution of the Agreement on the date stated of the Agreement on the date stated of the Agreement on the date stated therein. therein. therein. 7.7.7. The applicant has not produced his ration card The applicant has not produced his ration card The applicant has not produced his ration card inin in the said flat. It is his case that he actually the said flat. It is his case that he actually the said flat. It is his case that he actually resides resides resides in another flat of the same society where in another flat of the same society where in another flat of the same society where the the the building Bhagirath is situated. building Bhagirath is situated. building Bhagirath is situated. 8. The applicant has produced several bills of The applicant has produced several bills of The applicant has produced several bills of Bhagirath Bhagirath Bhagirath Condominium. Each of them are on usual Condominium. Each of them are on usual Condominium. Each of them are on usual computer computer computer stationery being computer prints outs. stationery being computer prints outs. stationery being computer prints outs. They They They can be procured by anyone at any time. Bills can be procured by anyone at any time. Bills can be procured by anyone at any time. Bills are are are for certain months of 2001 and thereafter for or certain months of 2001 and thereafter for or certain months of 2001 and thereafter for certain certain certain periods of 2003, 2004 and 2005. They are periods of 2003, 2004 and 2005. They are periods of 2003, 2004 and 2005. They are shown shown shown to be signed usually by the treasurer and to be signed usually by the treasurer and to be signed usually by the treasurer and sometimes sometimes sometimes by the Secretary of the condominium. No by the Secretary of the condominium. No by the Secretary of the condominium. No bills bills bills of of of the condominium for the years 1998,1999 or the condominium for the years 1998,1999 or the condominium for the years 1998,1999 or 2000 2000 2000 are produced. Contemporaneous documentary are produced. Contemporaneous documentary are produced. Contemporaneous documentary evidence evidence evidence which which which can be available to the applicant at can be available to the applicant at can be available to the applicant at the the the time of the transaction that he entered into time of the transaction that he entered into time of the transaction that he entered into with with with the defendants is, therefore, conspicuosly the defendants is, therefore, conspicuosly the defendants is, therefore, conspicuosly absent. absent. absent. 9. Same is the position with electricity bills. Same is the position with electricity bills. Same is the position with electricity bills. Electricity Electricity Electricity bills produced upon querry of the court bills produced upon querry of the court bills produced upon querry of the court 5 are are are also for the period from and after July 2004. also for the period from and after July 2004. also for the period from and after July 2004. Bills Bills Bills of earlier periods showing possession of the of earlier periods showing possession of the of earlier periods showing possession of the applicant applicant applicant in in in the property stated to be purchased by the property stated to be purchased by the property stated to be purchased by him him him as far back as 25th December, 1998 are as far back as 25th December, 1998 are as far back as 25th December, 1998 are conspicuosly conspicuosly conspicuosly absent. absent. absent. 10. 10. 10. Absolutely no case of any ownership of the Absolutely no case of any ownership of the Absolutely no case of any ownership of the property property property showing showing showing the applicant’s title or his legal the applicant’s title or his legal the applicant’s title or his legal right right right or interest in the property is made out even or interest in the property is made out even or interest in the property is made out even prima prima prima facie. The application therefore cannot be facie. The application therefore cannot be facie. The application therefore cannot be granted granted granted for the reliefs sought. for the reliefs sought. for the reliefs sought. 11. 11. 11. The applicant’s advocate stated that usually The applicant’s advocate stated that usually The applicant’s advocate stated that usually evidence evidence evidence is to be led in an application for raising is to be led in an application for raising is to be led in an application for raising attachment, attachment, attachment, The The The evidence would be required if there evidence would be required if there evidence would be required if there are are are disputed questions of fact to be considered in disputed questions of fact to be considered in disputed questions of fact to be considered in the the the application. application. application. 12. 12. 12. Based upon the applicant’s own original Based upon the applicant’s own original Based upon the applicant’s own original documents,the documents,the documents,the applicant’s right to have the applicant’s right to have the applicant’s right to have the attachment attachment attachment raised raised raised is not shown. The applicant need is not shown. The applicant need is not shown. The applicant need not not not be be be cross examined on his case. Consequently no cross examined on his case. Consequently no cross examined on his case. Consequently no oral oral oral evidence is required to be led. The evidence is required to be led. The evidence is required to be led. The applicant’s applicant’s applicant’s documentary evidence having been documentary evidence having been documentary evidence having been considered. considered. considered. That excludes any oral evidence to the That excludes any oral evidence to the That excludes any oral evidence to the contrary. contrary. contrary. 6 13. 13. 13. Seeing the applicant’s case upon the Seeing the applicant’s case upon the Seeing the applicant’s case upon the applicant’s applicant’s applicant’s own documents the applicant’s right to own documents the applicant’s right to own documents the applicant’s right to have have have the attachment raised is not made out. the attachment raised is not made out. the attachment raised is not made out. 14. 14. 14. Chamber summons is dismissed. Execution shall Chamber summons is dismissed. Execution shall Chamber summons is dismissed. Execution shall proceed. proceed. proceed. (Smt (Smt (Smt R.S.Dalvi,J) R.S.Dalvi,J) R.S.Dalvi,J)