1 S.624.86.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 624 OF 1986 1(A). Pistabai wd/o. Champaklal Shah (Jain) } Occ : House Hold, Age : 46 yrs. } 1(B). Satish Champaklal Shah (Jain) } Occ : Business, Age : 31 yrs. } 1(C). Manish Champaklal Shah (Jain) } Occ : Business, Age : 24 yrs. } All of Bombay Indian Inhabitant, } residing at Sonabai Powar Chawl, } Opp : Marathi Municipal School, } Old Kurla, Mumbai – 400 070. }... Plaintiffs. V/s. 1. Municipal Corporation of Gr. Bombay, } a statutory body incorporated under } the Municipal Corporation Act, 1888 } and having its office at Mahapalika } Marg, Fort, Bombay – 400 001. } 2. J.G. Kanga of Bombay, Indian Inhabitant, } the Administrator of the Municipal } Corporation of Greater Bombay, } having his office at Mahapalika Marg, } Bombay – 400 001. } 3. C.D. Bhayani of Bombay, Indian } Inhabitant, carrying on business at } 75, Sawant Chambers, Modi Street, } Fort, Bombay – 400 001. }..Defendants. 2 S.624.86.sxw Mr. H.M. Pandya for the Plaintiffs. Mr. H.C. Pimple and Mr. R.Y. Sirsikar for Defendants 1 and 2. Mr. P.G. Lad for Defendant 3. CORAM : R.Y. GANOO, J. DATED : 8th SEPTEMBER 2010. ORAL JUDGMENT :- Original Plaintiff Mr. Champaklal Shah filed this Suit in the year 1986 for a declaration that the Warrant of Attachment dated 26th September 1983 (hereinafter referred to as said warrant) and sale held by the Bombay Municipal Corporation on 29.3.1985 by public auction (hereinafter referred to as said sale) and actions taken pursuant thereto in regard to the property described in para 1 of plaint (for short suit property) are illegal and be set aside. A declaration is also sought that the Defendants have no right in regard to the suit property. Few facts necessary for the disposal of this Suit are as under :- 2. Mr. Champaklal Wadilal Shah filed the present Suit and during the pendency of the Suit he expired. His heirs i.e. Plaintiff Nos.1a,1b and 1c were brought on record. Defendant No.1 is the Municipal Corporation of Greater Bombay (now 3 S.624.86.sxw known as Mumbai Municipal Corporation hereinafter referred to as the said Corporation). Defendant No.2 was then Administrator of the said Corporation. Defendant No.3 is the auction purchaser who has purchased the suit property in the auction which had taken place on 29th March 1985. 2. One Mr. Bismillabi Mehatab had executed a lease in favour of Shah Wadilal and Ors. in regard to the suit property in 1965 for 999 years. On the suit property the lesses constructed the building and tenaments were let out to some persons. On 21st March 1997 said Shah Wadilal expired. Original Plaintiff Champaklal succeeded to said Shah Wadilal as his heir. Said Champaklal was attending to the suit property. According to him he was paying the Municipal taxes from time to time. Said warrant of attachment dated 26th September 1983 at Exhibit P-2 for the sum of Rs.27,517/- was levied on the property for non-payment of Municipal taxes. The order imposing penalty to the tune of Rs.9,474/- at Exhibit P-3 was also served upon him. According the Plaintiffs, said Champaklal, by letter dated 27th March 1985, he delivered a cheque for Rs.20,000/- to the Corporation on 27th March 1983. 4 S.624.86.sxw According to the Plaintiffs, despite such payment, the Corporation decided to sell the property and notice for auction sale was issued at Exhibit D-3 and it was decided that the property be sold on 13th February 1985. According to the Plaintiffs, the said auction did not take place and by another notice suit property was to be auctioned on 29.3.1985. The Plaintiffs state that after the said sale, Champaklal by his letter dated 9th April 1985, delivered to the Corporation a cheque for Rs.60,000/- towards the arrears of taxes. According to the Plaintiffs, when the Champaklal realized that the Corporation has already taken steps to accept Defendant No.3 as a auction purchaser, Champaklal issued notice at Exhibit P-8 dated 13th December 1985 under Section 527 of the Bombay Municipal Corporation Act (for short said Act). At one stage the Original Plaintiff had instituted Suit No.1179 of 1985 for the reliefs asked in this Suit. However, the said Suit came to be withdrawn for want of appropriate notice. Pursuant to the liberty granted by the Court, Champaklal instituted present Suit. It is also the case of the Plaintiffs that despite the property being sold in auction on 29th March 1985, Corporation has been levied warrant of attachment. 5 S.624.86.sxw 3. The Plaintiffs have challenged the present sale on various grounds Viz. (1) Notice of demand as required in accordance with the provisions of law i.e. Section 202 of the said Act has not been given. (2) Champaklal had made part payment to the tune of Rs.20,000/- and without encashing the cheque, the sale was conducted. (3) Said sale was conducted by collusion between officers of the Corporation and Defendant No.3. (4) Cheque for Rs.60,000/- was delivered to the Corporation on 9th April 1985 before issuance of sale certificate in favour of Defendant No.3. (5) When the auction was conducted on 29th March 1985, no reserve bid was fixed. (6) Provisions of Section 206(4) of the said Act are not complied though Champaklal had paid a part of the taxes. The Plaintiffs have on the basis of aforesaid objections sought reliefs asked in the plaint. 4. Defendant Nos.1 and 2 have filed written statements and have contended that : (1) the Suit is barred by the period of limitation, (2) the Suit property was sold by following procedure established by law, (3) Warrant of Attachment was properly issued, (4) Necessary notices were issued before levy 6 S.624.86.sxw of Warrant of Attachment, (5) The first sale was cancelled as the offers were less than reserve bid, (6) The Deputy Commissioner had ordered sale of the property without the reserve bid and the sale was fixed on 29th March 1985 with due publication of notices in the Newspaper and highest bidder at Rs.71,000/- viz. Defendant No.3 was marked as exclusive bidder, who has paid all the bid amount. According to the Corporation, letter dated 27th March 1985 at Exhibit D-5 has been issued by the Corporation in favour of Defendant No. 3 and possession has been handed over to Defendant No.3 on 10th April 1985. The Corporation has, therefore, prayed that on the basis of the stand taken by the Corporation, the Suit should be dismissed. 5. Defendant No.3 also filed the Written Statement opposing the reliefs sought in the plaint. He has contended that Defendant No.3 participated in the auction sale on 29th March 1985 and styled as the highest bidder. He further claims that he has paid Rs.21,000/- on 29th March 1985 and Rs.50,000/- on 11th April 1985 thereby complying with the terms of said sale as auction purchaser and the sale has been 7 S.624.86.sxw confirmed in his favour in terms of letter dated 19th April 1985 at Exhibit D-9. It was also contended by Defendant No.3 that original Plaintiff Champaklal was one of the heir and other owners of the suit property are not joined and therefore, suit is bad for mis-joinder of parties. Defendant No.3 has prayed for dismissal of the Suit. 6. On the basis of the aforesaid pleadings, following issues came to be framed on 31st July 2001 :- ISSUES FINDINGS 1. Whether the plaintiffs prove that the Suit is maintainable without issue of statutory notice as required under Section 527 of B.M.C. Act ? Does not survive. 2. Whether Suit is barred under Order XXIII Rule 3(b) of the Code of the Civil Procedure, 1908 ? In the negative. 3. Whether Defendant No.1 had issued demand notice under Section 202 of B.M.C. Act prior to attachment of the Suit property ? In the affirmative. 8 S.624.86.sxw 4. Whether Plaintiffs prove that the warrant of attachment dated 27.9.1983, the auction held on 29.3.1985 and the action taken by Defendant Nos.1 and 2 is without authority of law, illegal, void and inoperative and not binding upon the Plaintiff ? In the negative. 5. Whether the Plaintiffs prove that original Plaintiff had made part payment of Rs.20,000/- to Defendant No.1 ? In the affirmative. 6. Whether the Plaintiffs prove that Defendants have no right, title and interest in respect of the suit land after the properties attached by Defendant Nos.1 and 2 on 26.9.1983 and auction done by Defendant Nos.1 and 2 on 29.3.1985? In the affirmative. 7. Whether the Plaintiffs prove that Defendant Nos.1 and 2 have no right, title to transfer the said suit land in favour of the third party after the action of auctioning the said property on 29.3.1985 ? In the negative. 9 S.624.86.sxw My finding on each issue is mentioned against the respective issue. 7. I have heard learned Counsels on both sides. Learned Counsel Mr. H.M. Pandya appearing on behalf of the Plaintiffs had tendered written arguments. 8. I now proceed to deal with the Issues which have been framed on 31st July 2001. Issue No.1 : This Issue does not survive as the original Plaintiff Champaklal had issued statutory notice at Exhibit P-8 dated 13th December 1985 under Section 527 of the said Act. As such, Issue No.1 is answered as “does not survive”. Issue No.2 : This Issue relates to the maintainability of the present Suit in terms of Order XXIII Rule 3(b) of the Code of Civil Procedure. So far as this aspect is concerned, it is clear that the Plaintiff had earlier instituted Suit No.1179 of 1985 and the said Suit was allowed to be withdrawn with liberty to file the present Suit. There is no challenge to this position. I 10 S.624.86.sxw therefore, hold that present Suit was properly filed by the Original Plaintiff after giving notice under Section 527 of the said Act. Hence, Issue No.2 is answered in the negative. Issue No.3 : This issue was required to be framed because it has been the contention of the Plaintiffs that the Corporation had not issued notice to original Plaintiff Champaklal calling upon him to pay the arrears of Municipal taxes as required under Section 202 of the said Act. I have perused the evidence of Mr. Kirtane, DW-1, an employee of the Corporation from Assessment Department. Reading of his evidence would clearly go to show that the Corporation had issued notice under Section 202 of the said Act. Reference to such notices are to be found in the order dated 1st November 1984 imposing penalty of Rs.9,474/- which is at Exhibit D-3. In the said order, one can come across the various dates on which the notices were issued to Champaklal demanding the monies and related references. The Plaintiff himself has produced Warrant of Attachment dated 26th February 1983 at Exhibit P-2. Evidence of PW-1 Satish i.e. Plaintiff No.1-B in terms shows that Champaklal had visited 11 S.624.86.sxw the office of the Corporation and had explained the difficulties faced by him in not paying the full amount. The very fact that Champaklal had issued letter dated 27th March 1985 at Exhibit P-4 enclosing a cheque for Rs.20,000/-, shows that Champaklal was fully aware of the liability to pay the Municipal taxes and I am sure unless Champaklal has received appropriate notice, he would not have gone to the Corporation for the payment of taxes. It is, in these circumstances, I hold that the Corporation had issued notice under Section 202 of said Act prior to levying of warrant of attachment. Accordingly, Issue No.3 is answered in the affirmative. Issue No.5 : It is the case of the Plaintiffs that Champaklal had made a part payment of Rs.25,000/- to Defendant No.1. The Plaintiff has produced copy of the letter dated 27th March 1985 at Exhibit P-4 and copy of the cheque dated 27th March 1985 for a sum of Rs.20,000/- was at Exhibit P-5. The Corporation had disputed the date on which the said letter was served upon the Corporation. However, perusal of the office copy of letter dated 27th March 1985 i.e. Exhibit P-4, it is clear that the Corporation did receive the cheque for Rs. 12 S.624.86.sxw 20,000/-. It is true that the Corporation has not deposited the said cheque and proceeded to auction the suit property as indicated earlier. Fact remains that the Plaintiff made part payment of Rs.20,000/- and to that extent, Issue No.5 is required to be answered in the affirmative. What is the effect of such a payment of Rs.20,000/- by cheque shall be discussed while giving reasons for Issue No.4. Issue No.4 : The original Plaintiff himself has in turn admitted that the warrant of attachment at Exhibit P-2 was levied on the property. The plaint also narrates the circumstances under which the property was sold in the auction on 29th March 1985. The property was put up for auction initially on 13th February 2005. The Corporation had at the time of fixing this sale on 13th February 1985 fixed the reserved bid and the sale did not materialise as the offers received at the time of the said sale were less than reserved bid. Public notice dated 25th March 1985 at Exhibit D-4(colly) was issued in two Newspapers regarding sale to be conducted on 29th March 1985. In the said notice at Exhibit D-4, it was mentioned that further details as regards the terms and 13 S.624.86.sxw conditions of the auction can be understood from the office of the Corporation. It was provided that for further particulars and conditions, application could be made to the Assistant Assessors and Collector of “L” Ward. All this will show that adequate publicity was given to the proposed auction. It is true that no reserve bid was fixed. This fact is admitted by the Corporation in their written statement. It is difficult to know as to why the Corporation did not fix the reserve bid. The Plaintiffs have challenged said sale on this ground. The Learned Counsel for the Plaintiffs had submitted that if the Corporation had not fixed the reserved bid, the auction should be declared as illegal and sale should be set aside. Learned Counsel for the Plaintiffs had relied upon the Judgments in the case of Bihari Sanwalsingh Lulla V/s. The Municipal Corporation of the City of Thane & Ors. reported in AIR 1993 Bombay 155 and Ramrao Jankiram Kadam V/s. State of Bombay and Ors. reported in AIR 1963 S.C. 827 (V. 50 C 126) in support of his contentions that in the absence of reserved bid, a sale conducted by the Corporation was invalid. Learned Counsel for the Plaintiffs had, therefore, submitted that the Court should declare that said sale was 14 S.624.86.sxw illegal and the Suit be decreed in favour of the Plaintiffs. 9. Learned Counsel appearing on behalf of the Corporation had submitted that the auction was conducted in a proper manner. Learned Counsel for the Corporation had relied upon the note which was prepared by the Officer of the Corporation regarding the manner in which the auction was conducted being document at Exhibit D-6. He submitted that the auction was conducted in a systematic manner, bids were called for and the highest bidder viz. Defendant No.3 was treated as a successful bidder. It was pointed out that as Defendant No.3 paid the sum of Rs.71,000/- in accordance with the terms of the auction sale, sale certificate at Exhibit D-9 was issued in favour of Defendant No.3 and the possession of the property was handed over to Defendant No.3. Learned Counsel for the Corporation had submitted that the Corporation had taken steps in accordance with the provisions of law and therefore, there is no room to challenge the auction sale conducted on 29th March 1985. 15 S.624.86.sxw 10. Learned Counsel appearing on behalf of Defendant No.3 had taken me through the evidence which was given by Defendant No.3 as well as note put up by the Corporation at Exhibit D-6. Learned Counsel Mr. Lad for Defendant No.3 submitted that Original Plaintiff Champaklal had participated in the auction and therefore, it was not open for original Plaintiff Champaklal to say that the auction sale conducted without fixing the reserve bid cannot be termed as illegal. Learned Counsel Mr. Lad, for Defendant No.3 had drawn my attention to evidence of DW-2 i.e. Mr. C.D. Bhayani, Defendant No.3 where Defendant No.3 has specifically stated as to how original Plaintiff Champaklal participated in the auction and as to how person who is named as C.V. Jain in the note prepared by the Corporation at Exhibit D-6 is none else but Original Plaintiff Mr. Champaklal. Learned Counsel Mr. Lad had submitted that Defendant No.3 has deposed that Champaklal had participated in the auction and therefore, it is not open for the present Plaintiffs now or even in the past for said Champaklal to object to the auction on various grounds which are now pleaded in the plaint. According to Mr. Lad if Mr. Champaklal had an objection for conducting the auction in the 16 S.624.86.sxw absence of reserve bid, he should have objected to the said auction by appropriate method including filing proceedings in Court. Learned Counsel Mr. Lad submitted that no objection was raised by Mr. Champaklal at the time of auction. He submitted that participation of Mr. Champaklal in the auction is clear indication that Mr. Chamaklal had no objection for sale of the property on 29th March 1985. Learned Counsel Mr. Lad had submitted that the cross-examination of DW-2 Mr. Bhayani, Defendant No.3 will clearly go to show that the case put up by Defendant No.3 that Champaklal participated in the auction is not challenged by the present Plaintiffs in the cross examination. He submitted that no suggestion was given to the Plaintiffs’ witness PW-1 Mr. Satish Shah that Champaklal did not participate in the auction. Learned Counsel Mr. Lad submitted that in the absence of any suggestion to Mr. Bhayani about non-participation of Champaklal in the auction, the word of Mr. Bhayani, DW-2 i.e. Defendant No.3 that Mr. Champaklal participated in the auction has gone unchallenged. He submitted that no ill motive is attributed to the Officer of the Corporation, who had prepared the note at Exhibit D-6. He submitted that the cross-examination was 17 S.624.86.sxw conducted in so far as witness of the Corporation viz. Mr. Kirtane on the document at Exhibit D-6 and there is no challenge by the Plaintiffs to the said document D-6 in any manner whatsoever. Learned Counsel Mr. Lad had, therefore, submitted that one thing is clear that original Plaintiff Champaklal did participate in the auction and therefore, it is not now open for the Plaintiffs i.e. the heirs of Champaklal to challenge the said sale on the ground that no reserve bid was fixed. 11. On consideration of the submissions on the question of participation of Champaklal in the auction, I am inclined to accept the submissions advanced by learned Counsel Mr. Lad. In the absence of challenge to the document i.e. Exhibit D-6 i.e. the note prepared by the Officer of the Corporation, the said document has gone unchallenged which will show that Mr. C.V. Jain participated in the auction. The word of Mr. Bhayani, DW-2 i.e. Defendant No.3 that Champaklal participated in the auction and Champaklal is known as C.V. Jain has also gone un-challenged. If this is so, it is abundantly clear that Champaklal was in full know of the matter as 18 S.624.86.sxw regards issuance of warrant of attachment, as regards the proposed auction sale and therefore, it is not open for heirs of Champaklal i.e. present Plaintiffs to challenge the said sale. There is one more aspect which is required to be seen with reference to the reserve price. I have perused the Judgments relied upon by the learned Counsel for the Plaintiff at Bihari Sanwalsingh Lulla V/s. The Municipal Corporation of the City of Thane & Ors. reported in AIR 1993 Bombay 155 and Ramrao Jankiram Kadam V/s. State of Bombay and Ors. reported in AIR 1963 S.C. 827 (V. 50 C 126). It is proved by Corporation that the due notice was published by the Corporation declaring that the auction will be held on 29th March 1985. Said notices at Exhibit 8 (colly) mention that for further particulars and conditions, one can contact Assistant Assessor and Collector “L” Ward. This will mean that terms and conditions of auction could be known by contacting the Office of the Corporation by a person who wanted to participate in the auction. No fault can be found in the arrangement so arrived at by Corporation. Even the notice also specifically mentions that the auction will be conducted without reserve bid. The very fact that said Champaklal 19 S.624.86.sxw participated in the auction would clearly go to show that he was aware of the terms and conditions on which the property was put to auction. If Champaklal would not have participated in the auction, things would have been different. 12. In my view, as Champaklal participated in the auction, it is not open for Mr. Champaklal or his heirs to challenge the said sale on the ground that it was conducted without fixing of a reserve bid. The stand of the Plaintiffs to that extent is required to be rejected. The Corporation had issued notice to which a reference is found at Exhibit P-3. The Corporation had issued warrant of attachment at Exhibit D-2 and Corporation had put up the property for auction in terms of auction sale notice at Exhibit D-4 and Champaklal had participated the said auction. Hence, I am inclined to observe that the Corporation had properly conducted the auction and Defendant No.3 was rightly styled by the Corporation as a auction purchaser. As Defendant No.3 paid purchase price as per the terms of the auction, Corporation rightly treated Defendant No.3 as a proper purchaser and issued certificate of sale at Exhibit D-9. No fault can be found in the entire 20 S.624.86.sxw procedure conducted by the Corporation. 13. Now, the question remains as regards deposit of cheque of Rs.20,000/- by Mr. Champaklal in the Office of the Corporation on 27th March 1985 i.e. 2 days prior to the day on which the auction was fixed. Perusal of Exhibit P-4 would go to show that the cheque was deposited on 27th March 1985. It is true that the Corporation did not deposit the cheque for encashment. In my view that would not make a difference. The warrant of attachment was levied for a sum of Rs.27,000/- and odd. The penalty to the extent of Rs.9,000/- and odd was imposed in terms of order dated 21st November 1984 at Exhibit P-3. This would mean that as on 27th March 1985 certainly, an amount more than Rs.20,000/- was due and payable. If at all original Plaintiff Champaklal was interested in protecting the property, it was necessary for him to pay may be by cheque the whole amount which was due and payable in terms of the warrant of attachment and order regarding a payment of penalty. Even if it is accepted that by depositing cheque for Rs.20,000/- on 27.3.1985, Champaklal had paid a part of the amount i.e. Rs.20,000/-, surely, the 21 S.624.86.sxw Corporation was entitled to sell the property for recovery of the balance of amount. Even if it is accepted for the moment that the Corporation did receive a sum of Rs.20,000/- in terms of cheque dated 27th March 1985, the property came to be sold for the recovery of balance of the taxes and dues payable to the Corporation. The Corporation was not obliged to stay the auction merely because the part payment was made. This is so because provisions of sub-Section 4 of Section 206 of Bombay Municipal Corporation Act require that all dues and costs are to be paid by a defaulter before a sale is effected. Reading of