Bombay High Court
Central Bank Of India vs Radhakishan Jagdishprasad And Others on 8 November, 1993
Equivalent citations: (1994)96BOMLR405, [1995]82COMPCAS661(BOM)
JUDGMENT M.S. Rane, J.
1. Both the chamber summons are being disposed of with common judgment as the same arise out of execution proceedings by way of warrant of attachment levied under the same application and under the same decree. Further, the applicant in the Chamber Summons No. 843 of 1991 is the son and applicant in Chamber Summons No. 844 of 1991 is his father who is defendant No. 6 in the suit against whom decree has already been passed.
2. To appreciate the merits of both these applications, a brief appraisal of the facts would be necessary.
3. The plaintiff herein is a bank and they have filed a suit against the defendants for recovery of a certain amount. As far as defendants Nos. 1 to 5 were concerned the claim related to the credit facilities granted to them and defendant No. 6 who has taken out a second application was the carrier of certain goods entrusted to him for delivery to the particular party to whom the sixth defendant was to deliver goods on payment. However, defendant No. 6 delivered the goods to the consignee without receiving payment which act of defendant No. 6 according to the plaintiffs was fraudulent. Therefore, in the suit a separate claim was made against defendant No. 6 on that ground and this court has decreed the said claim.
4. It is noticed that a decree in the suit came to be passed on May 3, 1985, defendants Nos. 1 to 5 submitted to the decree, whereas as far as defendant No. 6 is concerned, the decree came to be passed after contest and on the merits for the amount as claimed by the plaintiffs.
5. Thereafter, the plaintiffs have made an application under Order 21, rule 11, seeking execution of the said decree against defendant No. 6 and on July 24, 1991, applied for warrant of attachment and this court issued process under Order 21, rules 43 and 54 of the Code of Civil Procedure, by issuing a joint warrant of attachment of movable and immovable properties in the possession of the judgment-debtor, i.e., defendant No. 6.
6. In response to the said warrant of attachment the Sheriff of Bombay levied attachment by executing the warrant of attachment upon the premises of defendant No. 6, namely, 28, Easter Chambers, 128, Poona Street, Bombay-9, and also movable assets. After execution of the warrant of possession and attachment the father and son have made the applications before this court as stated hereinabove.
7. As far as the case of the son, i.e., the applicant in Chamber Summons No. 843 of 1991 is concerned, he contends that he is a bona fide purchaser of the premises in question from his father and that since 1984 he has been managing the business of his father and is in occupation and possession of the said premises. He also refer to the transfer which is effected by the society of the premises in question in his name is on February 8, 1988.
8. The said son of defendant No. 6 in support of his claim has referred to certain documents such as deed of partnership, some other agreements, some bills and vouchers to show that he has been carrying on the business in the premises in question. On the basis thereof he asserts that he being in possession of the said premises and now that the said premises have been transferred in his name by the society that the same are not liable to be attached under the warrant of attachment under the decree to which he is not a party.
9. As far as defendant No. 6 is concerned as stated, against him there is already a decree passed by this court on the merits. He has raised certain technical pleas by referring to the provisions of Order 21, rules 43 and 54 of the Civil Procedure Code, to contend that the warrant of attachment issued is not in accordance with the rules. It is pointed out that he held the premises in question on ownership basis and the execution application refers to only tenancy right. Secondly, it is urged that there is no compliance with the provisions of rule 54 in particular sub-rule 1(a) which stipulates the service of notice upon the judgment-debtor for fixing the date, for settling the terms of proclamation of sale. It is stated that no such notice has been given. He also supports the case of his son and stated that he is no more concerned with the premises and he has transferred the said premises in the name of his son before the issuance of the warrant of attachment and execution thereof.
10. The plaintiffs in their affidavit in reply have stated that the so called transfer by the father to his son is an attempt on the part of the judgment-debtor, i.e., defendant No. 6, to surreptiously and fraudulently transfer the assets in order to defeat the claim of the plaintiffs in execution of the decree. It is further pointed out that the alleged transfer is without consideration. Inasmuch as there is nothing in the case of the son-applicant in his chamber summons that he has paid any consideration for acquiring ownership rights in respect of the premises in question or for that matter even acquiring the goodwill of the business.
11. On a careful consideration of the various pleas raised by and on behalf of the parties concerned, as adverted to hereinabove, I do not find any merit in both the applications as pointed out hereinbelow.
12. The father and son relationship is not in dispute. The decree in question has been passed on May 3, 1985, against defendant No. 6 which is on the merits. The said decree stands unchallenged. It is not disputed by defendant No. 6 that as on the date of the decree defendant No. 6 was the owner of the premises in question and he was carrying on the business in the said premises.
13. Further, the so-called transfer as claimed by father an son is without any consideration. Inasmuch a none had stated that any consideration was paid and received.
14. As far as the technical objections raised by and on behalf of the defendant No. 6, it needs to be noted that the process issued is under Order 21, rule 43, as also under rule 54. Both these provisions are distinctly concerning the movable and immovable assets. Sub-rule 43 relates to the immovable assets. I have perused the warrant of attachment which defendant No. 6 has annexed to his supporting affidavit and in the margin itself the process issued is for twin purposes and under the distinct provisions of the statue, namely, sub-rules 43 and 54, has been indicated.
15. Further, the non-compliance with sub-rule 1(a) of rule 54 as asserted by defendant No. 6, in may view is wholly unjustified in the matter herein as what is done in the matter herein is the issuance of a warrant of attachment and levying the same. The matter has not reached as yet to the proclamation of sale and that being the position it is not understood how defendant No. 6 can make grievance of its non-compliance with sub-rule 1(a).
16. In the circumstances, I do not find any merit in both these applications and the same stand dismissed. In both the applications - the applicant in the first chamber summons and defendant No. 6 the applicant in second chamber summons shall pay costs to the plaintiffs in different sets of these applications.
17. Issuance of certified copy is expedited.