: 1 : chs-799-10=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER OF SUMMONS NO. 799 OF 2010 IN EXECUTION APPLICATION NO.560 OF 2006 IN SUMMARY SUIT NO. 3647 OF 1997 M/s. Supreme Alloys Industry .. Plaintiffs v/s. M/s. Hmp Engineers Ltd. .. Defendant And M/s. Runwal Constructions .. Applicants And The Sheriff of Bombay .. Respondents ......... Mr. Shailesh Shah with Ms. Alpana Ghone i/by Kanga & Co. for applicant Mr. B.H. Vyas for the plaintiffs ......... CORAM : R.Y.GANOO, J. DATE : 21st SEPTEMBER,2010. P.C. : 1. In the Summary Suit No.3647 of 1997, decree was passed against the defendants on 4th July, 2005. The defendants were otherwise liable to pay certain amounts to the Indian Bank. Indian Bank had filed proceedings before the Debt Recovery Tribunal, Calcutta. In the DRT, Calcutta, money decree was passed so as to direct present defendants to pay monies to Indian Bank. Towards recovery of the said dues, the property which is subject matter of the present chamber summons (hereinafter referred to as the said property) came to be sold in public : 2 : chs-799-10=.sxw auction and the present applicants purchased the said property. Sale Certificate came to be issued by the DRT, Calcutta on 14th September, 2004 that is to say the present applicants became the owners of the property in question on 14th September, 2004. The decree in the present suit was passed only after issuance of such sale certificate on 4th July, 2005. Thereafter, the said decree was sought to be executed by filing present Execution Application No. 560 of 2006. Said property came to be attached in execution of the decree dated 4th July, 2005. The present applicants have prayed by this chamber summons for raising the attachment. Affidavit-in-reply is not filed. 2. I have heard learned Counsel on both sides. The record shows that the sale certificate was issued on 14th September, 2004 and the applicant became the owner of the said property on 14th September, 2004. It was argued by learned Counsel for the applicants that the said property could not have been attached in execution of the decree passed on 4th July, 2005 as on that date i.e. on 4th July, 2005 defendants were divested of ownership of the said property. He, therefore, submitted that chamber summons is required to be made absolute. 3. In reply, learned Counsel for the plaintiffs drew my attention to the conditions on which the property was put up for auction and he : 3 : chs-799-10=.sxw drew my attention to the following portion appearing in the order passed on 3rd September, 2004 by Presiding Officer, Debt Recovery Tribunal, Kolkatta. “Purchase of the property for a sum of Rs.12 crores by M/s. Runwal Constructions has been a purchase alongwith the workers’ liability and the other existing liabilities of the owners”. 4. Learned Counsel for the plaintiffs submitted that the term “other existing liabilities of the owners” appearing in the order passed by Presiding Officer of DRT, Calcutta would mean the liabilities of the present defendants covered by decree dated 4th July, 2005. According to the learned Counsel for the plaintiffs this sale was subject to the liabilities then prevailing on the defendants and, therefore, the property has been rightly attached. 5. Looking to the arguments advanced by both sides, the suit claim filed by the plaintiffs against the present defendants was not decided till the date 3rd September, 2004 i.e. order passed by the Presiding Officer as also the issuance of Sale Certificate dated 14th September, 2004. It is true that this suit was filed in the year 1997 and a claim was raised by the plaintiffs against the defendants. At the same time, so long as a decree is not passed against the defendants and in favour of the plaintiffs, one cannot say that the liability of the defendants qua the : 4 : chs-799-10=.sxw plaintiffs was determined and, therefore, the words “other existing liabilities of the owner” cannot include the claim which was put up by the plaintiffs in this Court being Summary Suit No.3647 of 1997. The words “other existing liabilities of the owners” would take care of such of the liabilities which are determined by the Court of competent jurisdiction or such of the liabilities which are admitted by defendants qua their creditors. In view of the aforesaid observation, the property which was sold to the present applicants on 14th September, 2004 could not have been attached in execution of decree dated 4th July, 2005. In view of the above, stand taken by the applicants that the attachment is required to be raised is accepted and hence, chamber summons is required to be granted. Hence, following order is passed to dispose of the chamber summons. ORDER (i) Chamber Summons is made absolute in terms of prayer clause (a). (ii) Property mentioned in Annexure “A” to the chamber summons stands released as Attachment is hereby raised. There shall be no order as to costs. (iii) Sheriff of Bombay to act on authenticated copy of this order. (R.Y.GANOO, J.)