1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO. 760 OF 2001 SUMMONS NO. 760 OF 2001 SUMMONS NO. 760 OF 2001 IN EXECUTION APPLICATION NO. 87 OF 1998 IN SUMMARY SUIT NO. 2165 OF 1997 Chandravadan Bhalchandra Shastri and Ors. ... Plaintiffs Versus C. Kant Developers Pvt. Ltd. ...Defendant And M/s. Rado Construction Co. ... Applicant Mr. D’souza i/by Vinod Mistry & Co. for Plaintiff. Mr. D.V. Merchant i/by Shaunak Satpute & Co. for Applicants. Mr. Jayesh Sapra for Defendants. CORAM CORAM CORAM : A.M. KHANWILKAR,J. : A.M. KHANWILKAR,J. : A.M. KHANWILKAR,J. DATED DATED DATED : JUNE 08, 2005 : JUNE 08, 2005 : JUNE 08, 2005 P.C. P.C. P.C. 1. Mr. Jayesh Sapra appears for the defendant. He prays that the defendant be permitted to lead evidence in terms of order dated 11.3.2002. However, it is seen that after the said order dated 11.3.2002, much water has flown. In as much as the Plaintiff as well as applicant has adduced evidence on commission. The defendant was represented by advocate all through out. No steps were taken at the instance of the defendant to adduce evidence, if any. At this distance of time, in my opinion, 2 request is only to protract the proceedings. This is so because no formal application has been filed. No sufficient cause has been shown except oral submission made that the previous advocate, who was appearing for the defendant, failed to inform the defendant about its right to adduce evidence. I see no substance in the explanation offered across the bar. 2. In any case, by this Chamber summons the applicant, who is a third party, is asking for raising of attachment of the property which is claimed to be owned and possessed by the applicant. Strictly speaking, therefore, the relief in this chamber summons is contested by the Plaintiff who has caused attachment in respect of the said property. Moreover, Chamber summons is pending since 2001. The attachment in question is effected on 7.3.1998. Accordingly, Chamber summons ought to proceed on merits. Accordingly, oral request made by the defendant at this distance of time to adduce evidence on behalf of the defendant is rejected for the aforesaid reasons. 3. Accordingly, heard counsel for the Parties on merits including counsel for the defendant. Briefly stated, Plaintiffs filed suit against the 3 defendant, which is a private limited company, for recovery of its outstanding commission. The said summary suit No. 2165 of 1997 has been decreed by this court on 16.9.1997. As a consequence of that decree, Plaintiffs have caused attachment of the disputed property situated at Kandivali, as described in the warrant of attachment. The attachment was effected on 7.3.1998. The applicant has filed the present chamber summons for raising of the attachment on the assertion that the disputed property is owned and possessed by the applicant which is a registered partnership firm and therefore, a separate entity than the Defendant which is a private Limited company. 4. On the other hand, the substance of the argument canvassed on behalf of the Plaintiffs is that, the applicant had undertaken to discharge the liability of the defendant company in terms of letter issued by the partner of the applicant firm Mr. Chandrakant Rawal dated 27.7.1994. The fact that the said Chandrakant Rawal was partner of the firm at the relevant time is, however, disputed by the applicant. Besides, the applicant has disputed issuance of letter by Mr. Chandrakant Rawal as is contended by the Plaintiffs. Whereas, according to the Applicant, the said Chandrakant Rawal had 4 retired from the partnership firm much before the subject decree came to be passed by this court in favour of the Plaintiffs. 5. The plaintiffs however, dispute the position that Mr. Chandrakant Rawal was no longer partner in the partnership firm. In my opinion, assuming that Mr. Chadnrakant Rawal was partner of the applicant firm when the decree was passed, or even thereafter and continues to be so, even then, the question that requires to be considered in the present proceedings is: whether the decree passed against the sole defendant which is a private limited company, a separate entity, can be executed against the applicant a registered partnership firm, in particular, in respect of the property of the firm, merely because one of the share-holders or Director of the defendant company happens to be a partner of the applicant company or for that matter, assured to take over the liability of the Defendant Company, The answer to this question is plainly in the negative. The fact that the parties have adduced evidence in the present proceeding to contest the position about issuance of disputed letter by Mr. Chandrakant Rawal or that Mr. Chandrakant Rawal was partner of the applicant firm and had issued the disputed letter, will make no 5 difference in Law. In Law, the decree can be executed only against the property of the Judgement debtor or the defendant and not against the property of a third party. Besides,in the present case, defendant is a private limited company and a separate entity. The learned counsel for the Plaintiffs is unable to cite any provision or precedent to contest this legal position. In such a situation, merely because Mr. Chandrakant Rawal happened to be the Director of the company and partner of the applicant company that cannot permit the plaintiffs to straight away proceed against the property of the third party which is a registered partnership firm. More over, in the present case, it is seen that the Plaintiffs had taken out Notice of Motion No. 1134 of 1997 for attachment before judgement against the applicant for the self same reason in which reference is made to the disputed property. The relief as claimed by the Plaintiffs in that Notice of Motion was rejected for the reasons recorded by the Judge of this Court in the said order. That decision was carried in appeal by the Plaintiffs. However, the appeal was later on withdrawn by the Plaintiff. In other words, that decision has been allowed to become final. In the said proceedings, the learned Judge has considered the position that the disputed property does not 6 belong to defendant but to the applicant firm. Suffice it to observe that the applicant firm was not impleaded as party to the suit as filed nor any decree is passed against said Mr. Chandrakant Rawal either in his personal capacity or being partner of the Applicant firm so as to proceed against the property of the firm in which Mr. Chandrakant Rawal happens to be the partner or was partner at the relevant time as claimed by the Plaintiff whereas, the decree is against the sole defendant, a Private Limited Company, a separate entity. . Viewed in this perspective, I am persuaded to allow the chamber summons by directing raising of attachment in respect of the disputed property in respect of which defendant has no direct or indirect right, title or interest therein. Accordingly, Chamber Summons succeeds. The same is made absolute in terms of Prayer Clause (a) with costs. . At this stage, counsel for the Plaintiffs prays that the operation of this order be stayed for a period of four weeks to enable the Plaintiffs to take up the matter in appeal, if so advised. The counsel for the applicant is opposing to the grant 7 of such indulgence to the Plaintiffs. However, as the attachment is continued since 17.3.1998, in my opinion, the same can continue for a period of four weeks from today as prayed by the Plaintiffs. Ordered accordingly. (A.M. (A.M. (A.M. KHANWILKAR,J.) KHANWILKAR,J.) KHANWILKAR,J.)