IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1877 OF 2007 IN EXECUTION APPLICATION NO.269 OF 2007 IN REFERENCE NO.741 OF 2001 Kaushik Shah Shares and Securities Pvt. Ltd. ..Applicants Vs. Nirjay Securities Pvt. Ltd and others ..Respondents And M/s.Jayantilal Khandwala and Sons Pvt. Ltd. ..Applicant Mr.Shyam Mehta along with Mr.P.V.Shah for Decree Holder Mr.Vivek Kantawala along with Ms.Martha Butala for Applicant in Chamber Summons No.1877/2007 CORAM : S.C.DHARMADHIKARI, J. DATE : 30th March, 2009. 1 Leave to amend the title of Chamber Summons. Amendment be carried forthwith. 2 This Chamber Summons prays for raising attachment levied upon premises being 201, P.J.Towers, Dalal Street, Fort, Mumbai – 400001 made on 16th November, 2007 in Execution Application No.269 of 2007 by the Sheriff of Mumbai. There is no Affidavit filed by the claimants to whom the application is directed. There is no Affidavit filed by the respondents either. 3 There are two Affidavits filed by applicants. From a reading of these Affidavits and the Annextures thereto, it is admitted position that the award was made by the Arbitral Tribunal on 19th April, 2006 in Reference No.741 of 2001. 4 Although Reference was directed against all respondents to this Chamber Summons, ultimately the Award has been made in favour of claimants and against Respondent Nos.1 and 2. Thus, the Award directs Respondent Nos.1 and 2 to pay to the applicants/claimants before the Arbitral Tribunal, the sum stipulated in the Award. 5 The property under the subject Warrant of attachment is being attached in execution on the basis that there is right, title and interest of the respondent nos.1 and 2 in the immovable property, in the said property. In other words, the right, title and interest of the respondent nos.1 and 2 against whom award is made, is purportedly attached under the subject Warrant of attachment. However, the applicant in the Affidavit in support of the Chamber Summons has specifically contended that respondent nos.1 and 2 have no such right, title and interest. In paragraph no.4 of the Affidavit in support of this Chamber Summons it is stated that ; “ I say that the premises in question being premises at 201, P.J. Towers, Dalal Street, Fort, Mumbai – 400001 (hereinafter referred to as the said premises) is a premises in which one M/s.Jayantilal Khandwala & sons Pvt. Ltd. Who is a tenant thereat. Hence there is no previty of Respondent No. Having any right, title and interest vis a vis tenancy rights in respect of the premises. Hence it is M/s.Jayantilal Khandwala & Sons Pvt. Ltd., who beneficiaries by way of tenancy in respect of the premises and landlords and owners of which are Bombay Stock Exchange Ltd. This fact can be established from the Rent Receipts/Bills which are being raised on M/s.Jayantilal Khandwala & Sons Pvt. Ltd. Who is a bonafide tenant and is in occupation/tenancy from the past many years. Hereto annexed and marked Exhibit”B” are the copies of the Rent Receipts of the years 2001 and 2007 respectively. I say and submit that the careful perusal of the pleadings of the Arbitration Reference does not show any liability of M/s.Jayantilal Khandwala & Sons Private Limited, leave alone an averment of liability in which circumstances the attachment levied upon the said premises is in gross violation in so much so that the Respondent No.1 has no proprietoryship in respect of the said immoveable property and hence the question of attachment does not and cannot arise. It is pertinent to note that M/s.Jayantilal Khandwala & Sons Private Limited are the tenancy holders in respect of the attached premises. The attachment of the premises shall cause irreparable injury loss and harm to M/s.Jayantilal Khandwala & Sons Pvt. Ltd., despite of there being no privity of Respondent No.1 in respect of the said tenancy. Moreover, the same would also tarnish the image and goodwill of M/s.Jayantilal Khandwala & Sons Private Limited in the Bombay Stock Exchange. Apart from the aforestated, the ill-motivated action of the attachment of premises which are based by way of right, title and interest of an different entity Viz.M/s.Jayantilal Khandwala & Sons Private Limited cannot be sustained. The applicants/claimants are making endeavours to pressurize by imposing attachment of property of M/s.Jayantilal Khandwala & Sons Private Limited who only have right title and interest in the said premises. Moreover no investigation of the property owned by Respondent No.1 or Respondent No.2 have been carried out which is in utter disregard to the mandate of law, as a pre-requisite to any execution proceedings would be to diligently find out properties owned which can be attached and sold in execution. Moreover it is seemingly unclear as inspite of a Chamber Summons being No.875 of 2007 pending for particulars pending the arbitrary haste in execution is a mystery, in which circumstances the attachment levied in respect of the attached premises ought to be raised as the balance of convenience is in my favour. It is in the aforestated circumstances the Chamber Summons preferred by the Applicant be made absolute with costs. 6 On the last occasion, it was stated that the applicants will file additional Affidavit and annex thereto all documents of title, so also produce the originals of the same for perusal of the Court. An additional affidavit is filed by the applicant in which somewhat contradictory stand has been taken. Paragraph No.1 of this Affidavit reads as under; “ I say that I have filed the instant Chamber Summons to raising the attachment which has been levied by the Applicant-Claimant in respect of the office premises being 201, P.J. Towers, Dalal Street, Fort, Mumbai 400001 on 16th November 2007 in Execution Application No.269 of 2007 and for other reliefs as more particularly prayed for in the Chamber Summons. I State that at the hearing of the above Chamber Summons, I was called upon to produce further evidence to substantiate the claim made by me in the said Chamber Summons. I state that the premises in question has been an allotted premises in lieu of the premises from where we were carrying on business in the yearly 1970”s in a building known as “Hamam Street Building” which was during the construction of the Bombay Stock Exchange Building” which was during the construction of the Bombay Stock Exchange Towers. Upon surrender we were given possession of the premises in question for which Bombay Stock Exchange has been obtaining rent and maintenance charges as can be seen from the bill which is annexed to the Chamber Summons. I state that I after hearing approached the Bombay Stock Exchange seeking aforesaid clarification to which Bombay Stock Exchange by its letter dated 2.2.2009 handed over to my brother a letter inter alia stating with regard to the monthly rent and maintenance charges. The Bombay Stock Exchange also mentioned with regard to the convenience for debiting amounts into our Clearing Number from which the business is being carried out. The Bombay Stock Exchange has further categorically stated that the said premises are allotted as permissive occupant. Hereto annexed and marked Exhibit-1 is a copy of the latter dated 2.2.2009” 7 Annexed thereto is the letter from the Bombay Stock Exchange clarifying the position with regard to the office premises No.201. 8 Although, there is substance in the objection of Shri.Mehta that Paresh J. Khandwala has not come forward to apply for raising attachment, yet, in absence of any affidavit in reply by the claimants, it is apparent to me that respondent Nos.1 and 2 have no right, title and interest in the attached property. There is nothing to disbelieve the communication from the Bombay Stock Exchange. Whatever may be the arrangement between Jayantilal Khandwala & Sons Pvt Ltd., Ashok Jayantilal Khandwala and Paresh J. Khandwala, the fact remains that neither Nirjay Securities Pvt. Ltd nor Jatin Ashok Khandwala, against whom award has been made, have any right, title and interest in the attached property. 9 In this view of the matter, it is clear to me that the attachment can not be continued any longer. Merely because the applicants have approached this Court does not mean that the claimant can urge that the attachment must continue. If the claimants have attached an immovable property in which respondent No.1 and 2 [Judgment Debtors] have no right, title or interest, then, it is not open to them to raise a technical objection. Hence, the following order is passed:- In the light of uncontroverted submission made in the two affidavits, considering the letter of the Stock Exchange dated 2nd February, 2009, attachment of premises i.e.201, P.J. Towers, Dalal Street, Fort, Mumbai – 400001, stands raised. However, this order shall not affect the rights of either M/s.Jayantilal Khandwala and sons Pvt.Ltd and Paresh Jayantilal Khandwala and the Arrangement Inter se as between them. Similarly, this order does not affect the rights of the claimants to challenge the Award. 10 Chamber Summons succeeds accordingly. [ S.C.DHARMADHIKARI , J.] chs1877-07