Bombay High Court
The National Smal Industries Corpn.Ltd vs Kamal Traders And Ors. And Maharashtra ... on 6 December, 2018
Author: K. R. Shriram
Bench: K. R. Shriram
sr.7.chs.1961.2009.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO.1961 OF 2009
IN
EXECUTION APPLICATION NO.197 OF 2004
The National Small Industries
Corporation Ltd. ... Claimant
V/s.
Kamal Traders and ors. and Maharashtra
State Financial Corporation ... Respondents
WITH
CHAMBER SUMMONS NO.1990 OF 2009
IN
EXECUTION APPLICATION NO.197 OF 2004
WITH
CHAMBER SUMMONS NO.256 OF 2011
IN
EXECUTION APPLICATION NO.197 OF 2004
WITH
CHAMBER SUMMONS NO.2028 OF 2011
IN
EXECUTION APPLICATION NO.197 OF 2004
WITH
CHAMBER SUMMONS NO.1122 OF 2012
IN
EXECUTION APPLICATION NO.197 OF 2004
...
Mr.Arun Barthakur for applicant in CHS/1961/2009 and for respondent
in CHS/1990/2009, CHS/256/2011, CHS/2028/2011.
CHS/1122/2012.
Mr.Madhur Rai a/w. Mr.R. J. Singh and Ms.Tanuja Rane i/b. R.J. Singh
and Co. for applicant in CHS/1990/2009, CH/256/2011,
CHS/1122/2012, EXA/197/2004.
Mr.R.A. Shah a/w. Ms.Janhavi Doshi i/b. M/s.Mansukhlal Hiralal and
Co. for Respondent No.8 in CHS/1961/2009 for applicant in
CHS/2028/2011.
...
CORAM : K. R. SHRIRAM, J.
DATE : 6th DECEMBER, 2018.
vina k. 1/4::: Uploaded on - 11/12/2018 ::: Downloaded on - 29/12/2018 08:02:49 :::
sr.7.chs.1961.2009.doc P.C. :
1. Heard counsel for both sides.
2. The following issues for determination arise in this chamber summons :
ISSUES
1. Whether applicant proves that the suit property being Flat No. 3A on third floor of the building called Shree Ishwar Bhavan Cooperative Housing Society Ltd., Little Gibbs Road, Malabar Hill, Mumbai 400 006 was mortgaged to it by way of security for a loan of Rs. 240 Lakh granted by it to M/s Moti Electric Industries Ltd.?
2. Whether applicant proves that it is the deemed owner of the suit property by operation of S. 29 of The State Financial Corporations Act, 1951?
3. Whether applicant proves that the suit Flat No. 3A has the area of 1108 Sq.Ft. and the adjoining Flat No. 3B has the area of 620 Sq.Ft. on third floor of the building called Shree Ishwar Bhavan Cooperative Society Ltd.?
4. Whether applicant proves that by Judgment and Order dated 15.06.2007 learned Chamber Judge S. R. Sathe J. had cancelled the sale of Flat No. 3B because the suit property, being Flat No. 3A, has an area of 1108 Sq. Ft. and that claimant had included a part of its area in Flat No. 3B, having an area of 620 Sq.Ft., to increase its area to 901 Sq.Ft.?
5. Whether applicant proves that claimant by its affidavit dated 30.01.2008 filed before this Hon'ble Court has also admitted that Flat No. 3A has the area of 1108 Sq.Ft. and Flat No. 3B has the area of 620 Sq.Ft.?
6. Whether applicant proves that regardless of the Judgment & Order dated 15.06.2007 and their own admission vide affidavit dated 30.01.2008 claimant and Commissioner for Taking Accounts had fraudulently got fabricated a layout plan dated 31.07.2008 of the said two flats with the help of Business & vina k. 2/4 ::: Uploaded on - 11/12/2018 ::: Downloaded on - 29/12/2018 08:02:49 ::: sr.7.chs.1961.2009.doc Industrial Consultants, a private Valuer, falsely and fraudulently distorting the areas of Flat No. 3A and Flat No. 3B to be 910.50 Sq.Ft. and 881 Sq.Ft. Respectively?
7. Whether applicant proves that claimant and the Dy. Sheriff had procured the order dated 23.07.2009 from the learned Chamber Judge confirming the sale of the suit flat No. 3A to Respondent No. 8 (Mr. Anil Jayraj Jhaveri), falsely showing its area to be 910.50 Sq.Ft. by deliberately suppressing the Judgment & order dated 15.06.2007 passed by the learned chamber Judge S. R. Sathe J., the affidavit dated 30.01.2008 filed by the claimant, and the Judgment & order dated 13.07.2009 passed by the Hon'ble Division Bench of this Hon'ble Court in Appeal No. 181 of 2009?
8. Whether applicant proves that claimant deceived it by falsely assuring it that the dispute between them would be decided following the order dated 13.07.2009 passed by the Division Bench of this Hon'ble High Court in Appeal No. 181 of 2009?
9. Whether applicant proves that the order dated 23.07.2009 confirming the sale of flat No. 3A is vitiated by deliberate suppression of material facts, collusion between the claimant's concerned officers and its lawyers with Commissioner for Taking Accounts and the Dy. Sheriff of Mumbai to distort the respective areas of Flat No. 3A and 3B, which constitute the abuse of the process of the court and fraud on court by claimant and its lawyers, the then Commissioner for Taking Accounts and the Dy.
Sheriff and hence is liable to be recalled?
10. Whether respondent no.8 proves, even if, the issues nos.1 to 9 are answered in affirmative still, whether the auction sale effected and confirmed by this Court, under which, the third party has paid the entire consideration and has been put in possession, be set aside.
11. Since the flat has already been sold, whether respondents prove that applicant can exercise its right only against the sale proceeds of flat no.3A and not against 3B.
12. What order ? What decree ? t
3. Mr. Barthakur states that evidence affidavit is already filed, so also compilation of documents and respondents can take inspection of vina k. 3/4 ::: Uploaded on - 11/12/2018 ::: Downloaded on - 29/12/2018 08:02:49 ::: sr.7.chs.1961.2009.doc these documents from the Registry and give its statement of admission and denial.
4. Registry shall permit respondents to take inspection of all documents at 3.00 pm on 10th December, 2018 at which time advocate or representative for applicant shall also remain present. If the advocate or representative of applicant is not present, the Registry shall permit respondent to still take inspection.
5. If the statement of admission and denial with reasons for denial is not given by 15th December, 2018, the party who has not given such statement, shall be deemed to have admitted the existence of all documents.
6. If any of the documents are denied, applicant may file further evidence affidavit to prove those documents and serve copy thereof upon respondents by 29th December, 2018.
7. Stand over to 4th January, 2019 for marking of documents/recording of evidence at which time applicant's witness shall remain present in Court.
(K. R. SHRIRAM, J.) vina k. 4/4 ::: Uploaded on - 11/12/2018 ::: Downloaded on - 29/12/2018 08:02:49 :::