1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1332 OF 2007 IN EXE.APPLICATION NO.183 OF 2007 IN SUMMARY SUIT NO.2391 OF 2003 Kirit Shah .. Plaintiff Versus M/s.Spectrum Alloyed & Resins Ltd. .. Defendants and M/s.Machmann Engineering Pvt.Ltd. .. Applicant Mr.B.S.Nayak i/b. Bhaskar & Co. for applicant CORAM : S.C.DHARMADHIKARI, J. DATE : 17th February 2009. P.C. . This chamber summons is duly served. It is for raising attachment on an immovable property, more particularly described in prayer (a) of the chamber summons. The applicant has filed an affidavit of its Managing Director stating that the applicant is a Private Limited 2 Company registered under the Companies Act, 1956. It is stated that the applicant is the owner of the subject Gala and is in possession of the same. In fact, if there had been no right, title and interest of the applicant in the subject gala, there was no question of the same being mortgaged with the Oriental Commercial Bank to obtain the loan from the said Bank. It is stated that the deed of transfer is deposited with the bank. 2. Although, the affidavit of service shows that the chamber summons is duly served on the decree holder and none is present on their behalf, I had directed the applicant to produce a letter from the Oriental Bank stating therein that the said Gala No.138/139 belongs to the applicant and the same has been charged and/or mortgaged on 29th May 2007. I had also directed the applicant to produce original bills for maintainance and receipts evidencing payment of 3 the same. 3. The letter from the said Bank certifies that these galas belong to the applicant and it has been charged on 29th March 2007 with the Bank. In other words, the charge is created on the said property and the same is continuing. This certificate dated 13th February 2009 has been perused by me. I have also perused the bills raised by the Coop.Society which shows that the society has raised bills in respect of Gala No.138 even in February 2009 on the applicant. Even prior thereto, bills have been raised on the applicants and there are due payments made. Bills for the month of May 2008 uptill February have been produced. 4. The above documents clearly show that the property belongs to the applicant as stated in the affidavit in support and not to the Judgement Debtor - defendant. There is no affidavit in 4 reply. In fact, one Spectrum Alloyed and Resins Ltd. had transferred this property under a registered deed of transfer to the applicant on 28th January 2004. A copy of the registered deed is also annexed to the affidavit in support. It is in such circumstances, that I am satisfied that under the warrant of attachment, the decree holder could not have attached Gala No.138 Hindustan Kohinoor Industrial Complex, Coop. Society Ltd., opposite Telephone Exchange, L.B.S.Road, Vikhroli Mumbai 400 083 in execution of the decree passed on 7th June 2005. The deed of transfer shows that the same is registered prior to the date of decree. Thus, it could not have been made the subject matter of attachment. Thus, on both counts, that the property does not belong to the judgement debtor and that it could not have been made subject matter of attachment, the chamber summons succeeds. It is made absolute in terms of prayer clause (a). 5 (S.C.Dharmadhikari, J)