Bombay High Court
Achal Surinder Kapoor @ Boney Kapoor And ... vs Seftech India Private Limited And Anr on 1 September, 2021
Author: Nitin Jamdar
Bench: Nitin Jamdar, C. V. Bhadang
3-comap(l)-13935-21 in ia(l)-11968-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL APPEAL (L) NO. 13935 OF 2021
IN
INTERIM APPLICATION (L) NO. 11968 OF 2021
IN
COMMERCIAL EXECUTION APPLICATION NO. 566 OF 2019
IN
COMMERCIAL SUMMARY SUIT NO. 453 OF 2017
1. Achal Surinder Kapoor alias Boney Kapoor
Adult, Indian Inhabitant, of Mumbai,
presently residing at bungalow No.18,
Magnum Lawns, Lokhandwala, Back Road,
Mumbai - 400 053.
2. Sunita Anil Kapoor
An Adult, Indian Inhabitant, of Mumbai
presently residing at Sringhar, Plot No.31,
Presidency Society, 7th Road, J.V.P.D.
Scheme, Juhu, Mumbai - 400 049.
3. Sanjay Kapoor
Adult, Indian Inhabitant, of Mumbai
presently residing at Hiralaya Building,
6th Floor, 10th Road, J.V.P.D. Scheme,
Juhu, Mumbai - 400 049. ...Appellants
V/s.
1. Seftech India Private Limited
a private limited company incorporated
under the provisions of Companies Act
having their registered office address at
Keytuo Chemicals Compound, Kondivita,
Andheri Kurla Road, Andheri (East),
Mumbai - 400 059.
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2. Gaurang Vinod Doshi
of Mumbai, Indian Inhabitant, presently
residing at 201-204, Jai Amba Co-op. Hsg.
Soc. Ltd., Juhu Versova Link Road,
Andheri (West), Mumbai - 400 054.
701/702, Woodstock J. P. Road,
Andheri (West), Mumbai - 400 054. ...Respondents
----
Mr. Karl Tamboly a/w. Mr. Anuj Desai i/b. Mamta Shah, for the
Appellants.
Mr. Anuj Narula i/b. Jhangiani Narula & Associates, for
Respondent No.1.
Mr. Datta Mane, for Respondent No.2.
----
CORAM : NITIN JAMDAR AND
C. V. BHADANG, JJ.
DATE : 1 SEPTEMBER 2021
Oral Judgment (Per Nitin Jamdar, J.)
The Appellants have challenged the order passed by the
learned Single Judge dated 21 June 2021 in Interim Application
(L) No.11968/2021 in Execution Application No.566/2019 in
Commercial Summary Suit No. 453 Of 2017. By the impugned
order the learned Single Judge has appointed a Receiver and has
restrained the Appellants from occupying the property in
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question. The Appellants claim to be in possession and claim
independent rights in the property.
2. The Respondent / Plaintiff had filed Suit (L) No.453/2017
against Respondent No.2 - Gaurang Vinod Doshi and
Madhukanta Vinod Doshi, which was decreed on 27 March 2018
and a decree of Rs.6,53,11,167.26 was passed. Respondent -
Plaintiff instituted proceedings for execution of the decree.
Respondent No.2 filed an affidavit of disclosure stating that the
flats flat Nos.201, 202 and 203 at Jai Amba Co-operative
Housing Society Ltd. belong to him. A warrant of attachment
was issued on 13 September 2019, and the attachment was levied
on these flats. Notice of auction was issued on 29 January 2020.
On 31 March 2021, the Appellants filed their Applications for
lifting the attachment.
3. The Interim Applications filed by the Respondent- Plaintiff
came up before the learned Single Judge on 1 June 2021 when it
was brought to the notice of the Court by the Appellants that
they have filed Interim Applications (Lodging) Nos.9381/2021,
9383/2021 and 9472/2021 for lifting of the attachment in
respect of the flats in question. While adjourning the Interim
Application of the Respondent Plaintiff, the learned Single Judge
directed that applications filed by the Appellants be tagged along
with the Plaintiff's application. Thereafter, the matter came up
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before the learned Single Judge on 21 June 2021. Only the
Application filed by the Respondent / Plaintiff was before the
learned Single Judge. The learned Single Judge in para 1 and 2
noted the facts. The learned Single Judge opined that the
Respondents did not take any steps when the properties were
attached, and they could not have entered the premises.
Thereafter the learned Single Judge passed the impugned
direction as follows-
(i) Court Receiver, High Court, Bombay is
appointed as Receiver of flat nos.201, 202, 203
situate on the 2nd floor of the building Jai Amba
Co-op. Housing Society Ltd., Juhu-Versova Link
Road, Andheri (West), Mumbai-400053.
(ii) Respondents shall handover symbolic
possession of the suit flats to the Receiver on
Monday, the 28th June 2021 at 11:00a.m. Receiver
shall affix his board at a conspicuous place.
(iii) In the meantime, there will be an ad-interim
injunction in terms of prayer clause (b) of the IA,
which will operate till further orders. Prayer clause
(b) is reproduced as follows:-
"(b). Pending the hearing and final disposal of this
application, the respondents, their servants, agents
or any person claiming through them be restrained
by an order of injunction of this Hon'ble Court
from in any manner using and/or occupying and/or
dealing with the said offices or any of them or any
part of them being Flat Nos.201, 202 and 203
(being one premises) on the 2nd floor of the
building Jai Amba CHS Ltd., Juhu Versova Link
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Road, Andheri (West), Mumbai - 400 053."
(iv) Till the Receiver takes possession, as aforesaid,
the co-operative society housing the said flats shall
be impleaded as party in this application.
(v) Society to file its reply within a period of four
weeks from service of this order by the plaintiff's
Advocate.
(vi) The plaintiff shall file affidavits-in-reply to the
three applications viz. Interim Application
(Lodging) Nos.9381 of 2021; 9383 of 2021 and;
9472 of 2021 within a period of four weeks from
today.
(vii) Affidavits-in-rejoinder, if any, to be filed within
four weeks thereafter.
(viii) List all the IAs in the normal course as per
CIS.
(ix) In the meantime, the plaintiff shall not take any
steps for sale of these properties pending all these
applications.
Impugning this order the Appellants are before us in appeal.
4. We have heard Mr. Karl Tamboly for the Appellants, Mr.
Anuj Narula for Respondent No.1 and Mr. Datta Mane for
Respondent No.2.
5. In this Appeal, after hearing the parties, we had passed an
interim order on 29 June 2021 as under -
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. Heard learned Counsel for the parties.
2. The learned Counsel for the Appellants states
that in view of the urgency, all documents could not
be annexed and seeks liberty to do so. Learned
Counsel seeks to place the Interim Applications
filed by the Appellants and the order passed by the
learned Single Judge on 21 June 2021 on record.
3. The learned Single Judge by the impugned order
dated 21 June 2021 has appointed the Court
Receiver as Receiver of the flats in question and has
directed the Receiver to take symbolic possession of
the suit flats on 28 June 2021. The learned Single
Judge, by an ad-interim order has directed the
Applicant not to occupy the flats effectively
dispossessing the Appellants. The Court Receiver
confirms that symbolic possession is taken.
4. The Court Receiver informs that the symbolic
possession was handed over by the representative of
the Appellants. According to the Appellants, the
possession of the Appellants is legitimate. The
Appellants has all the title deeds and has been
paying maintenance charges of the suit flats since
last more than three decades. Appellants also makes
a grievance, that in spite of the order passed by the
learned Single Judge on 21 June 2021, the
applications of the Appellants to lift the attachment
were not considered while passing the impugned
order.
5. The learned Counsel for the Respondent No.1
submits that Interim Applications filed by the
Appellants would show that contrary stands are
taken. It is also the contention of the Respondent
No.1 that the Appellants have entered into
possession after the order of attachment.
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6. This factual position will have to be considered
after the pleadings are complete as above.
7. Stand over to 8 July 2021.
8. In the meanwhile, considering the fact that the
symbolic possession is handed over by the
representative of the Appellants to the Court
Receiver, without going into the legal rights of the
parties to the suit flats, Clause (iii) of the operative
part of the impugned order shall stand suspended
and, the possession of the Appellants shall be
treated as of an agent of the Receiver.
9. The learned Counsel for the parties will circulate
a summary of their propositions with reference to
the pleadings (with page numbers) and statutory
provisions. Compilations of case law, if any, shall
contain an index and the relevant paragraphs be
marked and the proposition for which they are
cited. The summary and compilations be circulated
in advance before the next date.
6. The Appeal is admitted and, by consent, is taken up for
hearing forthwith. The learned counsel for the Respondents have
no objection to taking up the Appeal for hearing immediately and
waive notice.
7. Mr. Tamboly, the learned counsel for the Appellants,
submitted that the decree in the Summary Suit instituted by the
Respondent / Plaintiff is being executed in respect of the flats of
which are owned by the Appellants, even though the Appellants
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are not the judgment debtors and have no claim through the
judgment debtors. The learned counsel submitted that the
Appellants have filed three Applications viz. Interim Application
(Lodging) Nos.9381/2021, 9383/2021 and 9472/2021 for lifting
the attachment regarding the flats in question, which were
pending and without deciding those Applications, the impugned
order removing the Appellants from possession is passed. The
learned counsel for the Appellants submitted that when the
Interim Application (L) No.11968/2021 had come up for
consideration before the learned Single Judge on 1 June 2021,
the learned Single Judge has directed that Appellants' Application
will be heard together with the Application filed by the
Respondent / Plaintiff, however, this order has not been noticed
by the learned Single Judge while passing the impugned order.
The learned counsel for the Appellants also placed reliance on the
observations made in the impugned order dated 3 May 2012 in
Chamber Summons No. 961/2011 in Execution Application
No.207/2009, which according to the learned counsel for the
Appellants suggests that the Appellants' claim to the title of the
flats in question is valid. The learned counsel for the Appellants
submits that since the impugned order does not notice these
earlier judicial orders, grave prejudice is caused to the Appellants
as they have not been able to put forth their case on merits. It is
submitted that the impugned order be set aside and the
Applications of the Appellants for lifting attachment be directed
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to be heard.
8. Mr. Narula, the learned counsel for the
Respondent/Plaintiff, supported the impugned order and submits
that on the face of it, the Appellants have no title and all that the
learned Single Judge has done is to appoint the Court Receiver,
with a direction to the Appellants to handover symbolic
possession of the suit flats. It is submitted that the Appellants
were not in possession on the relevant date. The learned counsel
submits that in view of this position, no interference in the
impugned order is warranted.
9. Mr. Mane, the learned counsel for the Respondent No.2
submits that the Respondent No.2 was in possession of the suit
premises. The learned counsel for the Respondent No.2 submits
that Respondent No.2 was in actual possession and has been
wrongly dispossessed on 21 May 2021, and he has filed suit under
Section 6 of the Specific Relief Act.
10. Having heard the learned counsel for the parties, we find
justification in the grievance of the Appellants that the earlier
order was not noted while passing the impugned order. The
Interim Applications had come up before the learned Single
Judge (M. N. Jadhav, J.) on 1 June 2021 and the learned Single
Judge, while adjourning the same, made the following
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observations in para 5-
5. Mr. Tamboly also informed that three
attachment applications have been taken out for
raising the attachment on the subject properties.
These three attachment applications are not before
the Court today. Mr. Tamboly shall give the
number of the applications to the Court office.
They shall be tagged along with the above
application. In the meanwhile, the parties are
directed to complete the pleadings in the above
applications before the next date.
The Interim Applications (Lodging) Nos.9381/2021,
9383/2021 and 9472/2021 filed by the Appellants for lifting of
the attachment in respect of the flats were thus directed to be
heard along with the present application of the Plaintiff. The
learned counsel for the Respondent-Plaintiff sought to contend
that there were no such directions in the order dated 1 June 2021
that all Applications are to be heard together. There is no merit in
this contention. The direction in the order dated 1 June 2021 is
clear. The Applications were to be tagged for the reason for being
heard together. After being informed that Appellants had also
filed Applications for lifting the attachment, the learned Judge
found it necessary that they are heard together. There was no
modification of this order, nor Respondent-Plaintiff challenged
the same. The impugned order does not refer to the order dated 1
June 2021 and has passed order only in the Application of the
Respondent- plaintiff. Further, In their Applications, the
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Appellants have sought to put forth their case, and since the
Applications were not on board before the learned Single Judge
when the impugned order was passed, the contentions raised in
the Applications of the Appellants have not been referred to in
the impugned order. Thus, the merits and demerits of the
Appellants' case on facts are being urged before us for the first
time in Appeal.
11. The learned counsel for the Appellants has drawn our
attention to the order passed by the learned Single Judge (S. J.
Kathawalla, J.) on 3 May 2012 in Execution Application No.207
of 2009 more particularly paragraph No.14, which reads thus-
14. Since it was contended on behalf of Madhuri
that the flats at Juhu should be sold instead of the
suit premises, this Court had directed the Secretary
of Jai Amba CHS Ltd., to appear before this Court
along with relevant records of the said flats. The
secretary of the Jai Amba CHS Ltd. was present
before this Court and has produced the necessary
documents before Court which shows that both the
flats have been wrongly attached by the decree-
holder and the said flats belong to Achal Kapur and
Sanjay Kapur respectively and not Gaurang. In view
thereof, the question of directing the decree-holder
to sell the said flats instead of suit premises does not
arise.
According to the learned counsel for the Appellants, this
objection clearly shows that the claim of the Appellants has merit.
The learned counsel also submit that the title deeds of the flats
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are with the Appellants.
12. The learned counsel for the Respondent / Plaintiff
contends that this is not the correct position, and even otherwise,
the Appellants were not in possession. However, in the
impugned order, there is no reference to these observations in the
order dated 3 May 2012. There is no adjudication in the order
with reference to these observations.
13. The learned Single Judge in the impugned order has
observed that despite attachment, effective from 7th October
2019, the Appellants appear to have entered into the premises
and has restrained them from occupying the flats in question,
according to the Appellants dispossessing them from the flats to
which they hold title. The reasons in the impugned order are in
paragraph No.2, which reads thus-
2. Despite this attachment, which is effective
from 7th October 2019, it transpires that the
respondents represented by Mr. Tamboly appear to
have entered into the premises. The fact remains
that upon attachment on the basis that the
respondents were always in possession, Mr.
Tamboly submits that they have since moved
applications for raising attachments but only in
March 2021. Admittedly, from 7th October 2019,
when the properties were attached, till March, 2021,
the respondents have taken no steps. In the
circumstances, they could not have entered into the
suit premises. Assuming the respondents were
already within the suit premises, they would have
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known of the attachments and could have moved
court at an appropriate time and could have avoided
the delay.
This is the only reasoning in the impugned order. There is no
elaboration as regards this conclusion.
14. It is the case of the Appellants that they hold title to the
flats and they are not claiming through the judgment debtor. The
degree of scrutiny by courts would be different in these two
circumstances. Order XXI Rule 97 of the Code of Civil
Procedure lays down an elaborate and self-contained procedure.
Though it is true that decree must be executed expeditiously, the
court also needs to ensure that that property of someone
unconnected with the judgment debtor is not being attached and
sold. The case of Appellants who claimed both title and
possession to the flats in question has not been adjudicated on
merits, and it is not possible to do so first time in the Appeal.
15. The learned counsel for the Respondent / Plaintiff states
that a Suit under Section 6 of the Specific Relief Act is pending.
There is no reference to the same in the impugned order. It is
open to Respondent No.2 to request the learned Single Judge to
consider his case also while deciding the Applications.
16. In view of the above facts and circumstances, the proper
course of action would be that the learned Single Judge hears the
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application filed by the Respondent / Plaintiff afresh along with
the applications filed by the Appellants, which have been directed
to be tagged together. Considering that the receiver has already
taken symbolic possession of the flats and that the Appellants are
treated as agent of the receiver by the interim order passed this
Appeal, we do not intend to disturb the position till the
applications are heard by the learned Single Judge. This position
shall be treated as an ad-interim arrangement till the applications
are heard.
17. Accordingly, the Appeal is disposed of as follows.
ORDER
i) Impugned order dated 21 June 2021 is quashed and set aside, however, without setting aside the appointment of the Receiver.
ii) The Interim Application (L) No. 11968 of 2021 filed by the Respondent Plaintiff and the Interim Applications (Lodging) Nos.9381/2021, 9383/2021 and 9472/2021 filed by the Appellants will be heard together.
iii) The position as envisaged in paragraph No.8 of the interim order dated 29 June 2021 that Mamta Kale page 14 of 15 ::: Uploaded on - 06/09/2021 ::: Downloaded on - 10/10/2021 07:15:18 ::: 3-comap(l)-13935-21 in ia(l)-11968-21.doc the possession of the Appellants shall be treated as of an agent of the Receiver to continue till further order is passed by the learned Single Judge on the Applications.
18. We make it clear that we have only highlighted various issues arising for adjudication and the scope of the adjudication. Therefore when the learned Single Judge hears the matters afresh, the learned judge will not be influenced by the observations in this order on merits of the rival claims.
19. It is always open to the parties to request the learned Single Judge to take up the applications early and it is for the learned Single Judge to consider the same depending on the SOP in operation and the time schedule available.
20. The Appeal is disposed of in the above terms. No costs.
(C. V. BHADANG, J.) (NITIN JAMDAR, J.)
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