KJ 1 IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.265 OF 2010 WITH CHAMBER SUMMONS NO.266 OF 2010 EXECUTION APPLICATION NO.257 OF 2009 IN CASE NO CCI NO.63 OF 2007 Mandvi Co-operative Bank Ltd., .. Disputants V/s. M/s.Gurukrupa Overseas Trading Corp. .. Opponents And Daksha R.Das .. Applicant ---- Mr.Sunil Patel i/by Rajesh Desai for the applicant. Mr.R. V. Vengurlekar for the opponents. ---- CORAM : R.S.MOHITE, J DATE : JUNE 29, 2010 P. C.: 1 This is a Chamber summons taken out by the applicant Smt. Daksha Ramkumar Das for raising the attachment effected in execution proceedings in respect of flat nos.401 & 402 of B-wing, Sainath Park, Gavanpada, Mulund (East), Mumbai-400 081. It is her case that in so far as flat no.401 is concerned, she has KJ 2 purchased that flat in her own name under an agreement dated 28.3.1992 which is annexed along with affidavit in support. The applicant is the wife of original defendant no.9 against whom a decree has been passed jointly and severally along with other defendants. In so far as flat no.402 is concerned, the applicant contends that, that was also purchased under an agreement dated 28.3.1992 but it was purchased in the name of the mother of defendant no.9 who expired in the year 2004. In these circumstances, in my view, the present applicant cannot be said to be a class-I heir of the mother of defendant no.9 and after the death of defendant no.9 the said flat will come to the defendant no.9 and the decree can be executed against the said property. 2 In so far as flat no.401 is concerned, the plaintiff contends that though the agreement is in favour of present applicant, flat is belonging to defendant no.9 who has paid for it. That is the question requiring proof, to be given before any attachment is levied. The plaintiff will have to prove this fact. This has not been done and the attachment has been levied on the ground that the KJ 3 said flat no.401 belongs to defendant no.9 as a judgment debtor. In this view of the matter, Chamber summons is partly allowed. The attachment in respect of flat no.401 is set aside with liberty to the plaintiff to re-apply for attachment with proper contentions. In so far as attachment of flat no.402 is concerned, the said attachment is confirmed. Chamber summons for relief against flat no.402 is rejected. It is made clear that the attachment of movable property which is lying in flat no.401 will continue and the attachment is lifted only in respect of the immovable property being flat no.401. CHAMBER SUMMONS NO.266 OF 2010 1 This is a chamber summons taken out by the applicant for lifting attachment on properties. The properties in question are flat nos.31 & 32 in Jayant Apartment and flat no.D2 in Maheshwari Apartment. After hearing both sides, it is clear that the aforesaid three properties have been mortgaged to the applicant bank. In this view of the matter, there is no substance in KJ 4 this Chamber summons and the Chamber summons is rejected. Advocate for the applicant states that as per his calculation the balance amount which is due to the applicant-bank is about Rs.24 lakhs. There is some dispute regarding this quantum. Advocate for the applicant states that the amount may be slightly more. Advocate for the applicant states that he is willing to deposit this amount within a period of eight weeks from today. In these circumstances, liberty to the applicant to take out separate proceedings after making some part payment. However, it is directed that though the proceedings before the Commissioner and Sheriff office may continue, the actual sale will not be effected for a period of eight weeks from today. It is further recorded that the Advocate for the applicant states that amount of Rs.24 lakhs offered to be paid by him is in addition to the payment of regular installments which according to him are being made in any case. Statement is accepted. (R.S.MOHITE,J.) KJ 5