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.1620 OF 2007 SUMMONS NO.1620 OF 2007 SUMMONS NO.1620 OF 2007 in in in EXECUTION EXECUTION EXECUTION APPLICATION NO.28 OF 2005 APPLICATION NO.28 OF 2005 APPLICATION NO.28 OF 2005 in in in SUMMARY SUMMARY SUMMARY SUIT NO. 3399 OF 2001 SUIT NO. 3399 OF 2001 SUIT NO. 3399 OF 2001 Mafatlal Mafatlal Mafatlal Finance Company Limited.. Plaintiff Finance Company Limited.. Plaintiff Finance Company Limited.. Plaintiff versus versus versus Abedin Abedin Abedin Fakhruddin Kagalwala .. Defendant Fakhruddin Kagalwala .. Defendant Fakhruddin Kagalwala .. Defendant and and and Bank Bank Bank of Baroda of Baroda of Baroda .. .. .. Respondent no.3 Respondent no.3 Respondent no.3 Mr.K.A.Kharawalla Mr.K.A.Kharawalla Mr.K.A.Kharawalla for Plaintiff for Plaintiff for Plaintiff Mr.Ravindra Mr.Ravindra Mr.Ravindra Hazari for Bank of Baroda-Respt no.3 Hazari for Bank of Baroda-Respt no.3 Hazari for Bank of Baroda-Respt no.3 CORAM CORAM CORAM : : : S.J.Vazifdar, J S.J.Vazifdar, J S.J.Vazifdar, J DATED DATED DATED : : : 14th February, 2008 14th February, 2008 14th February, 2008 P.C. P.C. P.C. 1. 1. 1. The plaintiff has taken out the above The plaintiff has taken out the above The plaintiff has taken out the above Execution Execution Execution Application for enforcement of a money Application for enforcement of a money Application for enforcement of a money decree decree decree dated 19th March, 2004 passed in its favour dated 19th March, 2004 passed in its favour dated 19th March, 2004 passed in its favour for for for a sum of Rs.80,00,000/-. a sum of Rs.80,00,000/-. a sum of Rs.80,00,000/-. 2. 2. 2. The above Chamber Summons has been taken out The above Chamber Summons has been taken out The above Chamber Summons has been taken out by by by Bank of Baroda for an order for cancellation Bank of Baroda for an order for cancellation Bank of Baroda for an order for cancellation and/or and/or and/or setting aside of the auction sale of a flat setting aside of the auction sale of a flat setting aside of the auction sale of a flat and and and a warrant of sale and proclamation of sale. a warrant of sale and proclamation of sale. a warrant of sale and proclamation of sale. The The The respondent no.3-Bank of Baroda has also sought respondent no.3-Bank of Baroda has also sought respondent no.3-Bank of Baroda has also sought an an an order that all further proceedings in the above order that all further proceedings in the above order that all further proceedings in the above 2 Execution Execution Execution Application including in respect of the Application including in respect of the Application including in respect of the said said said sale be stayed. Lastly, it is prayed that sale be stayed. Lastly, it is prayed that sale be stayed. Lastly, it is prayed that thie thie thie Sheriff of Mumbai be restrained from making Sheriff of Mumbai be restrained from making Sheriff of Mumbai be restrained from making any any any deduction or appropriating or adjusting or deduction or appropriating or adjusting or deduction or appropriating or adjusting or parting parting parting with the proceeds of the said sale. with the proceeds of the said sale. with the proceeds of the said sale. 3. 3. 3. It is not necessary to grant any orders in It is not necessary to grant any orders in It is not necessary to grant any orders in respect respect respect of the said sale as admittedly, the sale of the said sale as admittedly, the sale of the said sale as admittedly, the sale has has has not fructified. not fructified. not fructified. 4. 4. 4. The only question is whether the above The only question is whether the above The only question is whether the above Execution Execution Execution Application and the proceedings in Application and the proceedings in Application and the proceedings in connection connection connection therewith ought to be stayed. Parties therewith ought to be stayed. Parties therewith ought to be stayed. Parties are are are agreed that in view of the judgment of the agreed that in view of the judgment of the agreed that in view of the judgment of the SUPREME SUPREME SUPREME COURT in Allahabad Bank vs Canara Bank AIR COURT in Allahabad Bank vs Canara Bank AIR COURT in Allahabad Bank vs Canara Bank AIR 2000 2000 2000 SUPREME COURT 1535, the execution proceedings SUPREME COURT 1535, the execution proceedings SUPREME COURT 1535, the execution proceedings will will will have to be considered and decided by the Debt have to be considered and decided by the Debt have to be considered and decided by the Debt Recovery Recovery Recovery Tribunal. Tribunal. Tribunal. 5. 5. 5. It is however, contended on behalf of the It is however, contended on behalf of the It is however, contended on behalf of the plaintiff plaintiff plaintiff that its right under the leave and that its right under the leave and that its right under the leave and licence licence licence agreement including right to remain in agreement including right to remain in agreement including right to remain in possession possession possession till realisation of security till realisation of security till realisation of security deposit/satisfaction deposit/satisfaction deposit/satisfaction of the decree must be of the decree must be of the decree must be protected. protected. protected. Mr.Hazari, learned counsel appearing Mr.Hazari, learned counsel appearing Mr.Hazari, learned counsel appearing on on on behalf of Bank of Baroda/respondent no.3 behalf of Bank of Baroda/respondent no.3 behalf of Bank of Baroda/respondent no.3 submitted submitted submitted that all such contentions of the that all such contentions of the that all such contentions of the plaintiff plaintiff plaintiff ought to be decided in execution ought to be decided in execution ought to be decided in execution 3 proceedings proceedings proceedings before the Debt Recovery Tribunal before the Debt Recovery Tribunal before the Debt Recovery Tribunal and/or and/or and/or in other appropriate proceedings. in other appropriate proceedings. in other appropriate proceedings. 6. 6. 6. In the circumstances, office is directed to In the circumstances, office is directed to In the circumstances, office is directed to forward forward forward the papers and proceedings pertaining to the papers and proceedings pertaining to the papers and proceedings pertaining to the the the above Execution Application to the Recovery above Execution Application to the Recovery above Execution Application to the Recovery Officer, Officer, Officer, Mumbai Debt Recovery Tribunal No.2. It Mumbai Debt Recovery Tribunal No.2. It Mumbai Debt Recovery Tribunal No.2. It is is is clarified that the plaintiff is at liberty to clarified that the plaintiff is at liberty to clarified that the plaintiff is at liberty to raise raise raise all contentions regarding its rights under all contentions regarding its rights under all contentions regarding its rights under the the the said leave and licence agreement and under the said leave and licence agreement and under the said leave and licence agreement and under the decree decree decree in execution proceedings by adopting in execution proceedings by adopting in execution proceedings by adopting appropriate appropriate appropriate proceedings. proceedings. proceedings. 7. 7. 7. The respondent no. 3 shall not make any The respondent no. 3 shall not make any The respondent no. 3 shall not make any application application application in respect of the said flat without in respect of the said flat without in respect of the said flat without notice notice notice to the plaintiff. The respondent no. 3 to the plaintiff. The respondent no. 3 to the plaintiff. The respondent no. 3 shall shall shall further serve the papers and proceedings in further serve the papers and proceedings in further serve the papers and proceedings in respect respect respect of any application relating to the said of any application relating to the said of any application relating to the said flat flat flat to the plaintiff’s advocates within two weeks to the plaintiff’s advocates within two weeks to the plaintiff’s advocates within two weeks from from from today. today. today.