1 chs1583-10.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Chamber Summons No.1583 of 2010 in Execution Application No.303 of 2008 in Summary Suit No.2000 of 2005 Jayantilal Maganlal Brahmbhat .. Plaintiff v/s. Rajendra Devidas Shah (Partner of Shanil Developer) ..Defendant And Vishwanath Shetty ..Applicant Mr.A.A. Siddiqauie for the Applicant. Mr. Jayesh Bhatt for the Plaintiff CORAM : R.Y.GANOO, J. DATED : 28th February, 2011 P.C. : 1. This Chamber Summons is taken out by the applicant for raising attachment in respect of the flat described in prayer clause (a) of the Chamber Summons. The plaintiff has not filed formal affidavit in reply to the Chamber Summons. However, learned Counsel for the plaintiff would like to support the order of the Commissioner for 2 chs1583-10.sxw taking accounts against which this Chamber Summons has been filed. 2. The decree came to be passed against the defendant on 12.3.2009 and the plaintiff has filed Execution Application No.303 of 2008 . The plaintiff proceeded to apply for warrant of attachment to attach the said flat described in prayer clause (a). Accordingly, warrant of attachment was levied on 4.12.2008. Mr. V.J.Shetty , the applicant has taken out this Chamber Summons for setting aside Order dated 27.9.2010 passed by the learned Commissioner as also for raising of attachment. 3. I have heard learned Counsel on both sides. It is the stand of the applicant that by Agreement to Sale dated 10.5.2006, the defendant had agreed to sell to the applicant the said flat. According to learned Counsel Mr. Asif Ali, as the said agreement to sell has been duly registered, the full consideration is paid and the possession is with the applicant, the applicant will have to be styled as owner of the said flat and the said flat cannot be attached in Execution of the Decree passed against the defendant who has lost ownership in respect of the said flat. 3 chs1583-10.sxw 4. Learned Counsel Mr.Asif Ali relied upon the judgment of the Supreme Court in the case of Veena Hasmukh Jain and Another vs. State of Maharashtra & Ors. report in (1999) 5 SCC 725 to contend that when the full stamp duty has been paid, it should be treated as deemed conveyance. According to him, since the full stamp duty has been paid in respect of the aforesaid document same should be treated as deemed conveyance. He also submitted that one should not go by the title of the document and one has to consider the averments of the document and decide whether the transaction is to be treated as sale or not. I am in agreement with the submission of the argument advanced by learned Counsel Mr. Asif Ali that one should not restrict himself to the title of the document and real nature of transaction should be ascertained by going through the text of the document. 5. After having gone through the same, I hold that the document dated 10.5.2006 is agreement to sale. It cannot be treated as sale deed. Reasons are as under. The introductory recitals clearly go to show that the parties wanted to execute agreement to sale. The various 4 chs1583-10.sxw clauses of the documents indicate that the transferor has agreed to sale the property to present applicant. Clause 4(c) clearly indicates that the transferor had agreed to execute all documents including sale deed so as to perfect the title of the present applicant. On going through the entire document, one can easily come to the conclusion that the said document is agreement to sale. A formal conveyance has not been executed and therefore the document dated 10.5.2006 cannot be considered sale deed. 6. It may be true that the applicant has paid full stamp duty as was required for a conveyance and that the agreement is duly registered. These fact themselves do not make this document as a conveyance. The judgment relied upon by the learned Counsel Mr. Asif Ali in the case of Veena Jain and another which is referred to concerns the interpretation of the appropriate provisions of Bombay Stamp Act. The said judgment by itself does not dispense with execution of formal sale deed for the purpose of conferring ownership upon purchaser. Merely because full stamp duty has been paid while executing the Agreement to Sale, the said document does not get converted into deed of sale. Reliance on said judgment is 5 chs1583-10.sxw misconceived. 7. Learned Counsel Mr.Asif Ali had relied upon the judgment in the case of Vannarakkal Kallalathil Shreedharan vs. Chandramaath Balakrishnan & Another reported in 1990 SCC 291 to contend that if the agreement to sale is executed first in point of time and thereafter the attachment is levied and if thereafter the regular sale deed is executed, the said attachment would not disturb the right of the purchaser. Looking to this judgment it is clear that the need to have the sale deed is very well accepted. 8. In reply to the Chamber Summons it was argued by learned Counsel Mr.Bhatt appearing on behalf of the plaintiff that the agreement to sale dated 10.5.2006 has been executed by the defendant in favour of the applicant with a view to avoid creditors and that the said agreement to sale is fraudulent transaction. He had submitted that on this count also the case of the applicant should be rejected. I do not wish to go into this aspect of the matter. If it is the case of the plaintiff that agreement to sale dated 10.5.2006 between the defendant and applicant was executed with a view to avoid creditors, 6 chs1583-10.sxw the plaintiff is free to adopt appropriate remedies in order to protect his rights. For the reasons mentioned aforesaid the following order is passed to dispose of the chamber summons. 9. In the present case, sale deed has not been executed between the defendant and the present applicant. If that is so, this judgment would be of no use to the present applicant. 10.For the reasons mentioned aforesaid, I hold that as of today the applicant cannot be treated as full owner of the said flat. He does not hold ownership rights in respect of the said flat and therefore the defendant continues to be the owner of the said flat. The plaintiff has every right to execute the decree against the defendant by putting the said flat in question for sale. ORDER Chamber Summons is dismissed. There shall be no order as to costs. [R.Y.GANOO, J.]