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 ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO. 512 OF 2005 SUMMONS NO. 512 OF 2005 SUMMONS NO. 512 OF 2005 IN IN IN SUIT SUIT SUIT NO.3737 NO.3737 NO.3737 OF 1996 OF 1996 OF 1996 M/s M/s M/s Pranami Press Pranami Press Pranami Press ......... Plaintiff Plaintiff Plaintiff vs vs vs M/s M/s M/s West West West Coast Brewers Distill.Ltd..Defendant Coast Brewers Distill.Ltd..Defendant Coast Brewers Distill.Ltd..Defendant & Shruti Shruti Shruti Re-Rollers Re-Rollers Re-Rollers P.Ltd & anr .. Applicants P.Ltd & anr .. Applicants P.Ltd & anr .. Applicants Mr.G.B.Kedia Mr.G.B.Kedia Mr.G.B.Kedia for Plaintiff for Plaintiff for Plaintiff Mr.S.Shetty Mr.S.Shetty Mr.S.Shetty i.b M.M.Vashi for Applicants i.b M.M.Vashi for Applicants i.b M.M.Vashi for Applicants CORAM CORAM CORAM :SMT R.S.DALVI, J :SMT R.S.DALVI, J :SMT R.S.DALVI, J DATE DATE DATE : 6th February, 2007 : 6th February, 2007 : 6th February, 2007 P.C. P.C. P.C. 1.1.1. The applicants have applied for raising the The applicants have applied for raising the The applicants have applied for raising the attachment attachment attachment levied on the immovable property claimed levied on the immovable property claimed levied on the immovable property claimed toto to be owned by them. be owned by them. be owned by them. 2.2.2. This Summary Suit has been decreed upon the This Summary Suit has been decreed upon the This Summary Suit has been decreed upon the defendants defendants defendants in the suit not depositing the amount in the suit not depositing the amount in the suit not depositing the amount directed directed directed to be deposited on Summons for Judgment. to be deposited on Summons for Judgment. to be deposited on Summons for Judgment. The The The decree came to be passed in 2002. The decree came to be passed in 2002. The decree came to be passed in 2002. The attachment attachment attachment came to be levied on the premises now came to be levied on the premises now came to be levied on the premises now claimed claimed claimed by the applicants in 2004. by the applicants in 2004. by the applicants in 2004. 3.3.3. The applicants must show their ownership rights The applicants must show their ownership rights The applicants must show their ownership rights 2 toto to the property claimed to be able to raise the the property claimed to be able to raise the the property claimed to be able to raise the attachment attachment attachment and stay the execution of the decree on and stay the execution of the decree on and stay the execution of the decree on the the the property attached. property attached. property attached. 4.4.4. The applicants have relied upon an agreement The applicants have relied upon an agreement The applicants have relied upon an agreement for for for sale dated 9th January, 1985 with one Surlux sale dated 9th January, 1985 with one Surlux sale dated 9th January, 1985 with one Surlux Impex Impex Impex Pvt Ltd. The agreement is not registered. Pvt Ltd. The agreement is not registered. Pvt Ltd. The agreement is not registered. The The The applicants cannot rely upon that agreement for applicants cannot rely upon that agreement for applicants cannot rely upon that agreement for claiming claiming claiming their rights thereunder. The said Surlux their rights thereunder. The said Surlux their rights thereunder. The said Surlux Impex Impex Impex Pvt Ltd has gone into liquidation. The Pvt Ltd has gone into liquidation. The Pvt Ltd has gone into liquidation. The applicants applicants applicants were were were found in possession of the premises found in possession of the premises found in possession of the premises after after after the company went into liquidation and a the company went into liquidation and a the company went into liquidation and a provisional provisional provisional Liquidator was appointed. Liquidator was appointed. Liquidator was appointed. Consequently, Consequently, Consequently, pending the liquidation proceedings pending the liquidation proceedings pending the liquidation proceedings inin in Company Application No.513 of 2000 in the said Company Application No.513 of 2000 in the said Company Application No.513 of 2000 in the said Company Company Company Petition for winding up, being Company Petition for winding up, being Company Petition for winding up, being Company Petition Petition Petition No.275 No.275 No.275 of 1995, an order came to be passed of 1995, an order came to be passed of 1995, an order came to be passed by by by the learned Single Judge of this Court (Mrs the learned Single Judge of this Court (Mrs the learned Single Judge of this Court (Mrs K.K.Baam, K.K.Baam, K.K.Baam, J) (as she then was) on 5th March, 2001 J) (as she then was) on 5th March, 2001 J) (as she then was) on 5th March, 2001 making making making the Judge’s Summons absolute in terms of the Judge’s Summons absolute in terms of the Judge’s Summons absolute in terms of prayer prayer prayer clauses (a) and (b) thereof. Consequently, clauses (a) and (b) thereof. Consequently, clauses (a) and (b) thereof. Consequently, the the the applicants’ possession came to be protected applicants’ possession came to be protected applicants’ possession came to be protected pending pending pending the winding up proceedings the winding up proceedings the winding up proceedings. 5.5.5. In an appeal filed therefrom, a Division Bench In an appeal filed therefrom, a Division Bench In an appeal filed therefrom, a Division Bench of of of this Court directed the Official Liquidator to this Court directed the Official Liquidator to this Court directed the Official Liquidator to hand hand hand over the possession of the premises to the over the possession of the premises to the over the possession of the premises to the 3 applicants applicants applicants herein. However, the applicants were herein. However, the applicants were herein. However, the applicants were directed directed directed not to sell the property or encumber the not to sell the property or encumber the not to sell the property or encumber the said said said premises pending appeal. premises pending appeal. premises pending appeal. 6.6.6. Consequently, it is seen that only possession Consequently, it is seen that only possession Consequently, it is seen that only possession of of of the Applicants is protected. The ownership the Applicants is protected. The ownership the Applicants is protected. The ownership rights rights rights have not been adjudicated upon. have not been adjudicated upon. have not been adjudicated upon. 7.7.7. Thereafter, warrant of attachment was levied on Thereafter, warrant of attachment was levied on Thereafter, warrant of attachment was levied on the the the property after a decree came to be passed property after a decree came to be passed property after a decree came to be passed against against against the defendants. The defendants have been the defendants. The defendants have been the defendants. The defendants have been served served served with the writ of summons at the address of with the writ of summons at the address of with the writ of summons at the address of the the the applicants. I am told that advocate for the applicants. I am told that advocate for the applicants. I am told that advocate for the applicants applicants applicants appeared as advocate for the defendants appeared as advocate for the defendants appeared as advocate for the defendants toto to defend the Summons for Judgment also. The defend the Summons for Judgment also. The defend the Summons for Judgment also. The applicants applicants applicants have not shown their right, title and have not shown their right, title and have not shown their right, title and interest interest interest in the suit property. In fact, the in the suit property. In fact, the in the suit property. In fact, the applicants applicants applicants have shown that only their possession have shown that only their possession have shown that only their possession has has has been protected pending Company the Application been protected pending Company the Application been protected pending Company the Application and and and pending the winding up proceedings. That pending the winding up proceedings. That pending the winding up proceedings. That application application application or that order does not bar a creditor or that order does not bar a creditor or that order does not bar a creditor from from from realising realising realising his debts under a decree obtained by his debts under a decree obtained by his debts under a decree obtained by the the the creditor. Consequently, attachment before creditor. Consequently, attachment before creditor. Consequently, attachment before judgment judgment judgment has been taken out correctly,. The has been taken out correctly,. The has been taken out correctly,. The applicants applicants applicants have not shown their right, title and have not shown their right, title and have not shown their right, title and interest interest interest and are not entitled to raise the and are not entitled to raise the and are not entitled to raise the attachment. attachment. attachment. 4 8.8.8. Chamber Summons is dismissed. Chamber Summons is dismissed. Chamber Summons is dismissed. 9.9.9. No order as to costs. No order as to costs. No order as to costs. (Smt (Smt (Smt R.S.Dalvi,J) R.S.Dalvi,J) R.S.Dalvi,J)