1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 646 OF 2010 ALONG WITH CIVIL APPLICATION NO. 1650 OF 2010 Mrs.Kamal J. Madan ... Appellant v/s The Special Recovery Officer attached to Rupee Co-operative Bank Ltd., Thane. ... Respondent Mr.S.G.Deshpande for the appellant. None present for the respondent. CORAM: SMT.NISHITA MHATRE, J. DATED: 6TH MAY, 2010 P.C.: 1. The appeal has been preferred against the judgment and order of the Trial Court dated 30.12.2009. By this judgment, the suit filed by the plaintiff, the appellant herein, has been dismissed. 2. The plaintiff’s contention is that she is joint owner of a 2 flat with her husband. He had borrowed a loan from the Rupee Co-operative Bank Ltd. which was not repaid within the requisite period. It appears that a recovery certificate was therefore issued. The present suit has been filed by the plaintiff contending that she has a right in the suit flat as she was a joint owner of the flat. 3. A contention was raised by the Bank regarding the jurisdiction of the Civil Court to decide the issue. That issue has been decided in favour of the appellant. However, with regard to the merits of the case, the Court has observed that the plaintiff has not examined her husband as a witness though she claimed that her husband had gifted her 50% of the interest in the suit flat. The Court has disbelieved the evidence of the plaintiff since she had not filed a valid gift deed or any other document to prove either her title to the suit flat or that she was a member of the Society. 4. A letter issued by the General Manager to the Chairman of the Co-operative Housing Society in which the suit flat is situated, was exhibited at Exh.39. This letter encloses a list of allottees and the joint allottees with nominees for the flats. The learned advocate for the appellant submits that since the appellant’s name is shown as a joint owner in this document, the Court ought to have 3 accepted the same and held that the suit flat could not have been attached since the appellant was the joint owner of that flat. 5. In my opinion, the Trial Court has not committed any error while dismissing the suit. Even assuming the document at Exh.39 is to be considered, the scrutiny of the same indicates that the name of the appellant is shown as the joint owner as well as the nominee. It does not, in my opinion, stand to reason that a joint holder would be a nominee in respect of the suit flat. 6. Since the Trial Court has not found any evidence on record to indicate that the appellant had title to the suit flat, in my opinion, the suit has rightly been dismissed. 7. The first appeal stands dismissed along with the civil application. 8. The learned advocate for the appellant requests that a stay be granted to this order. In my opinion, there is no need to grant such a prayer since right from December, 2009, no stay has been granted in the matter. Hence, stay refused. ..... 4 5