1 chs401-10.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Chamber Summons No.401 of 2010 in Execution Application No.84 of 2009 in Suit No.2723 of 2007 Pramod Makharia .. Plaintiff v/s. Smt.Laxmidevi Makharia & Ors. ..Defendants Mr.M.P.S.Rao & S. Marathe i/b. Parag Shelke for the plaintiff Mr.Snehal Shah i/b. Narayan & Narayan for the Applicant- Defendant No. 10. CORAM : R.Y.GANOO, J. DATED : 23rd August, 2010 P.C. : 1. This Chamber Summons is taken out for raising attachment in respect of properties which are set out in Exhibit C to the Chamber Summons. The Chamber Summons in particular is taken out for raising of attachment in regard to the business premises situated at Makskap Centre, A-14, Veera Desai Industrial Estate, C.T.S.No.685, 2 chs401-10.sxw Veera Desai Road, Oshiwara, Andheri (West), Mumbai 400 053 (hereinafter referred to as said property) as also the movables lying in the said property. I have perused the terms of the execution application and in the Execution Application it is stated that the attachment as regard to the suit property is required to be levied on the basis of clause 10 appearing in the consent terms by which parties had arrived at decree in the main suit. Perusal of the relevant portion of the execution application shows that Bank of India claims that liabilities to the tune of Rs.1,82,00,000/- and odd amount are outstanding as against the defendant nos.2, 3 and 4. As of today, there is no decree passed against the defendant nos.2 to 4 and in favour of Bank of India. Warrant of attachment apparently came to be issued so as to enforce clause 10 of the consent decree by using the language appearing in the consent terms “ the said amount is paid to the plaintiff in addition to defendant nos.2, 3 and 4 discharging the several liabilities to the various banks” . Learned Counsel Mr. Rao, appearing on behalf of the plaintiff contended that the said property and movables therein are sought to be attached in accordance with the several liabilities which were to be paid of by the defendant nos. 2, 3 and 4, more particularly stated in clause 10 of the consent terms. 3 chs401-10.sxw In further reply, learned Counsel Mr. Rao submitted that the award has been passed on 31.7.2010 in Arbitration Proceeding filed between Citi Financial Consumer Finance India Ltd. and plaintiff and his son and his wife, where the award of Rs.1 Crore and odd amount has been passed. Learned Counsel Mr. Rao contended that the attachment as regards the said property and immovables would be towards this award as according to the plaintiff, defendant nos.2, 3 and 4 are liable to pay of the amount covered by the said award. 2. It is noted that the said award is passed on 31.7.2010. Execution Application is filed on 6.11.2009. Accepting the stand taken by the plaintiff for the sake of argument that various liabilities were to be satisfied by the defendant nos.2, 3 and 4, and even giving an extended meaning to the term “various liabilities” attachment levied to execute the award passed in favour of Citi Financial Consumer Finance India Ltd., cannot sustain as on 6.11.2009 no award was passed iin favour of Citi Financial Consumer Finance India Ltd. 3. In the execution application, and in particular column (g) there is reference to the liabilities qua bank of India. Counsel for the plaintiff 4 chs401-10.sxw could not produce before the court any decree passed in favour of Bank of India which can br included in the term “various liabilities” appearing in clause 10. Hence, on the date of filing of the execution application dated 6.11.2009 there were no liabilities of defendant nos. 2, 3 and 4 towards various banks. On account of this, the warrant of attachment qua the said property and movables therein could not have been levied and that is how the said warrant of attachment is required to be raised as prayed for in terms of prayer clauses (a) and (b) of the Chamber Summons. Hence following order is passed to dispose of the Chamber Summons. ORDER i) Chamber Summons is made absolute in terms of prayer clauses (a) and (b). ii) It is clarified that if plaintiffs claim that the award dated 31.7.2010 falls within the ambit of clause 10 of the consent terms and to be included in the term “various liabilities towards various banks” , it will be open for the plaintiff to file fresh execution application. All contentions are left open and if at all such 5 chs401-10.sxw execution applcaiton is filed , notice of the same would be given to defendant nos.2, 3 and 4 before seeking any order of attachment against property of defendant nos.2, 3 and 4 as these defendants would be required to be heard. [R.Y.GANOO, J.]