As recorded already, there is no denial and/or any sort of contra material placed on record by the decree holder in view of the specific averments so made by the Applicant along with the copies of registered documents to show the ownership, title and the shares in their name of the property in question. The Applicants were never party and/or concerned with the proceedings initiated by the claimant against the Respondents for the alleged car loan. They were not even parties to this proceeding at any point of time. It appears that the Respondents, for whatever may be the reason and inspite of above transfer of property, provided Flat No. 23 as their residential address. The Award was passed accordingly. None appeared for the Respondents. The Plaintiffs, therefore, based upon the residential address without verifying the title, ownership, proceeded to execute the Award against the Respondents and accordingly prayed for attachment of the property. The office also, without verifying the basic documents and requirement, just issued the warrant in question. That resulted into attachment of movable as well as immovable property of the Applicant. Though it was not admittedly owned by the Respondent and Respondents were not concerned with any of the proceedings initiated by the claimant against them. I am inclined to observe that the attachment of property in such fashion, whether movable or immovable, based upon the residential address itself, is contrary to the provisions of law. The Office also just cannot accept the statement so made, based upon the address of the Respondents, to attach the property in such fashion. The claimant or the decree holder whosoever want to attach the property and/or want the Court's to issue warrant of attachment for movable or immovable property, must provide the basic documents on record or at least positive averments to show that the properties which they want to attach belongs to and/or owned by the Respondents and/or at least have interest of the Respondents of such nature that the Respondents can dispose it of. All these averments are absent.
7. There is no averments even on record to show that the movable and/or immovable property in question of which they want attachment was even charged and/or any right or interest created at any point of time. As noted, the car loan was obtained by the Respondents. The claimant/decree holder, however, got the attachment order which definitely resulted into all sorts of harassment for no fault of Applicants.
8. I am inclined to observe that such blind attachment orders definitely cause injustice and hardship to the other side and basically to third person or parties who have no concern with the litigation between the judgment debtor and decree holder.1
Bombay High Court
: Vs.
Respondent: Vishal S. Bagadia and Anr. on 6 May, 2013
Bench: Anoop V.Mohta
Citation;2013(4)ALLMR854, 2013(5)MhLj316
Though served, none appeared for the claimants. 2 Based upon Arbitration Case No. 16 of 2009, original claimant has filed this Execution Application to recover a sum of Rs.11,33,319/- with interest from 5 September 2009 pursuance to the ::: Downloaded on - 09/05/2013 23:38:27 ::: 2 27-chs-1970-2011.sxw Loan Agreement between claimant and the Respondent. Award dated rt
15 March 2011 has attained the finality. The Respondents are the ou
judgment debtors against whom the Execution Application so filed was intended to proceed with. However, warrant of attachment of C
immovable property under Order XXI, Rule 54 of Code of Civil Procedure (CPC) was issued and the Applicant's property situated at h
Flat No.23, 2nd Floor, New Sunita Building, Opp. Colaba Post Office, ig
Colaba, Mumbai 400 005, got attached. H
3 By this Chamber Summons, along with supporting affidavit dated 24 April 2011, the Applicant have placed on record y
substantial documents to show the ownership and title of the property, ba
which remained uncontroverted till this date. The basic events are that after due search and inquiry and verification of requisite om
documents and after completing the formalities as required, the Applicants paid to the Society on 15 July 2008, a substantial amount B
towards earnest money of Rs.50,00,000/-. The notice was accordingly issued to the society informing their intention to transfer their shares, right and title in the flat. The society issued No Objection Certificate (NOC) on 20 July 2008. The title got investigated thereafter again. Search report dated 25 July 2008 shows the details of the earlier transactions. The Applicant's Advocate invited claims from the public rt
and published notice accordingly on 25 July 2008. There was no ou
objection whatsoever received.
C
4 The mortgage loan outstanding with Dena Bank, Colaba Branch, was repaid on 5 September 2008 and accordingly no h
objection to lift its charge on the flat was issued. The Applicants and ig
the society ultimately executed/registered a Sale Deed on 9 September 2008. The requisite stamp duty was paid by the H
Applicants. On 9 September 2008, a Declaration-cum-Indemnity Bond and stating that they have repaid the loan amount on 15 September y
2008 of the flat was executed. The present Execution Application ba
admittedly not take out by the said Bank. om
5 Pursuance to the Sale Deed, the Applicant got possession on 9 September 2008 and on the same day, they have also submitted B
Form No.22 to the Society for their membership. Now the Applicants are the members of the Society and are in possession of the flat as they have purchased it by executing the necessary registered documents. In the result, the Applicants definitely, prior to filing of this Claim Petition by the claimant, have been in possession of the property being legal owner of the said flat, apart from the share rt
certificate in their name.
6 The claimant/decree holder, based upon vague averments
made by the decree holder prayed for warrant of attachment of movable as well as immovable property as contemplated under Order
XXI, Rules 43 and 54 of CPC. Without filing on record the requisite ig
documents to show that the ownership of the flat in question is of judgment debtor, the averments are made to attach the property along H
with fixtures and furnitures. On record, there are no supporting documents to show that the property in question is owned by the y
Respondents on the date of even filing of proceedings in the year 2009 ba
and/or even on the date of Award dated 15 March 2011. The residential address, even if any, given and/or mentioned that itself om
cannot be the reason for the decree holder to attach the movable or immovable property of the third person in such fashion. B
7 As recorded already, there is no denial and/or any sort of contra material placed on record by the decree holder in view of the specific avements so made by the Applicant along with the copies of registered documents to show the ownership, title and the shares in their name of the property in question. The Applicants were never
party and/or concerned with the proceedings initiated by the claimant ou
against the Respondents for the alleged car loan. They were not even parties to this proceeding at any point of time. It appears that the C
Respondents, for whatever may be the reason and inspite of above transfer of property, provided Flat No.23 as their residential address. h
The Award was passed accordingly. None appeared for the ig
Respondents. The Plaintiffs, therefore, based upon the residential address without verifying the title, ownership, proceeded to execute H
the Award against the Respondents and accordingly prayed for attachment of the property. The office also, without verifying the y
basic documents and requirement, just issued the warrant in question. ba
That resulted into attachment of movable as well as immovable property of the Applicant. Though it was not admittedly owned by om
the Respondent and Respondents were not concerned with any of the proceedings initiated by the claimant against them. I am inclined to B
observe that the attachment of property in such fashion, whether movable or immovable, based upon the residential address itself, is contrary to the provisions of law. The Office also just cannot accept the statement so made, based upon the address of the Respondents, to attach the property in such fashion. The claimant or the decree holder whosoever want to attach the property and/or want the Court's to rt
issue warrant of attachment for movable or immovable property, must ou
provide the basic documents on record or at least positive averments to show that the properties which they want to attach belongs to C
and/or owned by the Respondents and/or at least have interest of the Respondents of such nature that the Respondents can dispose it of. h
All these averments are absent.
ig
8 There is no averments even on record to show that the H
movable and/or immovable property in question of which they want attachment was even charged and/or any right or interest created at y
any point of time. As noted, the car loan was obtained by the ba
Respondents. The claimant/decree holder, however, got the attachment order which definitely resulted into all sorts of harassment om
for no fault of Applicants.
B
9 I am inclined to observe that such blind attachment orders definitely cause injustice and hardship to the other side and basically to third person or parties who have no concern with the litigation between the judgment debtor and decree holder. Such type of attachment ultimately apart from harassment of every sort compel them to move and/or take out this chamber summons and/or rt
proceedings to vacate and/or to get the order revoked which may, in a ou
given case, take some time and/or may get delayed for various reasons. The order of attachment, however, unless vacated, definitely C
create all sorts of complications, though they are the owners and/or have clear title of the property in their favour. This is fit case for cost h
of Rs.25,000/- to be paid by the decree holder to the Applicants. ig
10 In the result, the following order : H
O R D E R
A) Chamber summons is granted in terms of prayers (a) and y
(b) which is reproduced below :
ba
"(a) That this Honourable Court may be pleased to hold and declare that the Warrant of Attachment dated 18th October 2011, passed in Execution Application om
Number 1070 of 2011 in Arbitration Case Number 16 of 2009 attaching the said Flat No.23, in Sunita Building, The New Sunita Co-operative Housing Society Limited, admeasuring 680 sq.ft, situate at B
Wodehouse Road, Colaba, Mumbai - 400 005, is bad in law and ought to be set aside;
(b) That this Honourable Court may be pleased to raise the attachment levied by the Warrant of Attachment dated 18th of October 2011 passed in Execution Application Number 1070 of 2011 in Arbitration Case Number 16 of 2009 on the Flat No.23, in Sunita Building, The New Sunita Co- operative Housing Society Limited, admeasuring 680 sq.ft, situate at Wodehouse Road, Colaba, Mumbai - 400 005."
B) This is subject to costs of Rs.25,000/- to be paid by the ou
decree holder to the Applicants within four weeks. C
C) The parties and the Sheriff of Bombay to act on an authenticated copy of this order. h
D)
The execution proceeding against the Respondents to continue in accordance with law.
(ANOOP V. MOHTA, J.)
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