1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.199 OF 2008 IN SUIT NO.668 OF 2003 The Federal Bank Ltd. .. Plaintiff Versus Bankim Mehta .. Defendant Mr.O.A.Das for plaintiff Mr.Pandya for defendant CORAM : S.C.DHARMADHIKARI, J. DATE : 12th January 2009. P.C. . This is a notice of motion for attachment before judgement. 2. Mr.Das relies upon an order dated 12th October 2006 in Writ Petition No.3297 of 2004 passed by the Division Bench of this Court. The Division Bench was considering the writ petition of the defendant - petitioner who was challenging 2 an order passed by the Debt Recovery Tribunal (DRT) attaching the flat which is the subject matter of this motion. 3. The submission of Mr.Das is that the petitioner defendant before me claims the flat to be his exclusive property whereas this Court has held that there is no merit in the petition. At the same time, reliance is placed upon the observations of this Court that the wife of petitioner/ defendant before me was a co-owner of the flat. The necessary corollary of Mr.Das is that the balance 50% share is held by the husband defendant before me. 4. Mr.Pandya for defendant states that the claim in the suit is contested claim. There are valid defences raised to the claim of the bank and it cannot be said that there is an attempt to delay the outcome of the suit or any attempt is being made to prevent the execution of the decree 3 that is likely to be passed in favour of the plaintiff. In other words, the necessary ingredients for attachment before judgement are not satisfied and, therefore, no relief be granted. 5. Alternatively and without prejudice, Mr.Pandya makes a statement that the defendant before me is residing in the said flat. These are residential premises and the defendant has no intention of dealing with or disposing of or alienating or encumbering this flat/ his share therein until hearing and final disposal of the suit. 6. In the light of the statement of Mr.Pandya, which is made on instructions from the defendant, it is not necessary to enter into any wider controversy. Needless to state that there will be injunction against disposal, alienation or encumbrance of the flat as a statement to this 4 Court constitutes an undertaking to this Court. The effect of undertaking to this Court is an injunction against alienation or disposal so also creation of third party rights. 7. The statement having been made and accepted as undertaking to this Court, the notice of motion is disposed of in terms thereof. Needless to further observe that the statement made before me by the defendant shall not, in any manner, prevent him from raising appropriate pleas before the D.R.T. and more particularly that the flat is exclusive property. 8. In the light of the above order passed on the notice of motion taken out by the plaintiff, Notice of Motion No.1170 of 2008 does not survive and disposed of as such. (S.C.Dharmadhikari, J)