Bombay High Court
Shri Pranesh Gupta And M/S Gupta Brother ... vs Shri Jagdish Bansilal Khurana on 11 September, 2018
Author: G. S. Patel
Bench: G.S. Patel
2-EXA1091-15.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
EXECUTION APPLICATION NO. 1091 OF 2015
IN
C.S. (O.S.) NO. 1979 OF 2011
WITH
SHERIFF'S REPORT NO. 21 OF 2017
Pranesh Gupta and M/s. Gupta Brother (India) ...Petitioner
through its partner
Versus
Jagdish Bansilal Khurana ...Respondent
Mr Kishore Jain, with Priyal Chheda, i/b Jayant Gaikwad, for the Petitioner.
Mr Rohaan Cama, with TN Tripathi & Sapana Rachure, ib TN Tripathi & Co., for the Applicant in CHS/402/2016. Mr Sumeet Bansod, i/b LJ Law, for the Applicant in CS No. 1426/2016 & CS/751/2017.
Mr Vivek Phadke, for the Defendant.
Mr Sandeep Patil, with Santosh Parad, for MCGM. Mr SD Chitgopekar, Dy Sheriff, is present.
CORAM: G.S. PATEL, J
DATED: 11th September 2018
PC:-
1. The Decree Holder's debt today runs at Rs. 13.30 crores with interest mounting daily. There is a plot of land known throughout Page 1 of 7 11th September 2018 ::: Uploaded on - 12/09/2018 ::: Downloaded on - 13/09/2018 01:34:20 ::: 2-EXA1091-15.DOC these proceedings and in previous orders as "the Khurana Plot". This is behind Dhanlaxmi building, SVP Nagar, Andheri (West), Mumbai: 400 053. It is adjacent to RSC-12 and RDP-6 and Plot Nos. 225, 14, 15, 16 and 11 at Survey No. 12p (part), Village Versova, Taluka Andheri. The previous orders, to one of which I will return shortly, also clearly show that this is and was a MHADA plot and requires permission for transfer. That permission was earlier been obtained.
2. This is an awkwardly shaped piece of land, described (equally awkwardly), as a 'tit bit plot', presumably meaning 'small', though the phrase, at least as I understand it, usually refers to morsels of food or snatches of gossip. The land certainly has an inconvenient access. It was previously encroached and by orders that I have had occasion to make, the MCGM was directed to clear these encroachments. It was valued and was put to an auction sale with a reserve price of Rs. 3.50 crores. This sale was, between 2016 and 2018, attempted not just once. It was attempted as many as five times. Each attempt returned with no response whatsoever; possibly because of its titbittiness.
3. The application today, therefore, by the now thoroughly exasperated Decree Holder, evidently at its wit's end regarding recovery, is that it be allowed to take over the Khurana Plot by setting off its decretal claim to the extent of the reserve price and having the decree marked partly satisfied, while continuing in execution for the balance claim of Rs. 9,80,99,234.68. There are the usual prayers for a direction to issue a certificate of sale, and to Page 2 of 7 11th September 2018 ::: Uploaded on - 12/09/2018 ::: Downloaded on - 13/09/2018 01:34:20 ::: 2-EXA1091-15.DOC MHADA to accept the lease rent, as also for execution of documents and possession.
4. The application is opposed, more than somewhat predictably, by the Judgment Debtor. He says that Rs 3.50 crores is a gross undervaluation. He has, of course, nothing to show to it. He has no buyer. He has no valuation. He has done nothing at all to put up the so-called higher value. He cannot have been unaware of the attempts being made over the last 24 months to put this property to sale. To say now that he has now recently been served with the application for a set off and is, therefore, taken by surprise is entirely incorrect. This application was utterly predictable. It was inevitable. It was always in the offing immediately after the first auction sale failed. The basis of the relief sought is not unknown to either side or to the Court. It is founded on the Code of Civil Procedure, 1908 ("CPC"): Order XXI Rule 72 expressly permits a Decree Holder to make precisely such an application.
5. The other submission made by the Judgment Debtor is that his brother-in-law, one Rajinder Mehta, might yet come forward to take the plot at a much higher rate. Rajinder Mehta is no stranger to this Court either. He has been before me earlier, and not very long ago at that. He was here on 24th April 2018 when he tried to seek a restraint against the sale of the Khurana plot. I passed an order on that day negating Rajinder Mehta's claim to the plot and I did so in this fashion:
10. The other two Chamber Summons Nos. 1426 of 2016 and 751 of 2017 are filed by one Rajinder Mehta ("Mehta"), the brother-in-law of the Judgment Debtor. Both these Page 3 of 7 11th September 2018 ::: Uploaded on - 12/09/2018 ::: Downloaded on - 13/09/2018 01:34:20 ::: 2-EXA1091-15.DOC Chamber Summonses relate to, and only to, the Khurana Plot property. This is a MHADA plot and requires MHADA permission for any transfer. MHADA has bee joined to these proceedings on an order made in a disposed of Chamber Summons No. 199 of 2017 (order dated 7th June 2017).
11. Mehta's claim runs like this: He says that he entered into an agreement with Khurana on 4th April 2015. The document is at page 21 of a compilation that is tendered by Mr Khandeparkar who appears for Mehta. The agreement is in respect of this very land, and according to Mr Khandeparkar, it records that payments have been made and Mr Mehta has been put in possession. The agreement requires certain permissions to be obtained and acts to be done before the transaction could be finalized.
12. Mr Jain points out that this agreement is on the face of it not credible. It is on a stamp paper that was obtained for making an Affidavit. It shows Mehta as having an address in New Delhi and not in Mumbai and it is unlikely that he would therefore ever have been put in physical possession of this plot. In his submission this was a document contrived only to save the property from execution and this, Mr Jain says, is ex facie apparent from this agreement which is both unstamped and unregistered.
Mr Khandeparkar submits that the document does not require registration because in itself it creates no rights.
13. But that is a problem. If the document creates no rights and there is no other document then what Mr Khandeparkar is forced to fall back on is this: that since Mehta allegedly made some payments to Khurana, therefore, Mehta has a lien or a charge on the property. I believe this is far too broadly stated to commend itself. There is no such general principle in law.
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14. As to the question of possession, the entire case seems to be founded on the basis of a statement made before KR Shriram J on 29th June 2017 (order copy is at page 11 of Chamber Summons No. 751 of 2017). The Sheriff reported Mehta's name to be on the property board. The Court directed the Sheriff to put up a notice that Mehta was to remain present and open the gate at 11.00 a.m., failing which the Sheriff will break open the lock. There is then a report at page 19, dated 4th July 2017. The Sheriff in this report notes that on 30th June 2017 and 1st July 2017 the premises were inspected by interested bidders. The gate was opened by a representative by Mehta at 11.00 a.m. At 1.00 p.m. the Sheriff put his own locks and seal on the premises. On the basis of this, Mr Khandeparkar would have it that Mehta is in settled possession and has been dispossessed by the Sheriff.
15. I am not inclined to accept this submission. That possession, if at all, must be shown to be settled and juridical, i.e. one such as the law recognizes, and it must have some lawful foundation. The agreement itself, as we have seen, is not one that provides the necessary foundation.
16. Consequently, Mehta's prayer in Chamber Summons No. 751 of 2017 to have the Sheriff's lock and seal removed on the Khurana Plot property is not one that can be accepted. Chamber Summons No. 751 of 2017 is dismissed. No costs.
17. This leaves Mehta's other Chamber Summons No. 1426 of 2016 and in this the Mehta seeks that the warrant of attachment in respect of the Khurana Plot be raised.
18. Mehta himself has taken no steps in all this time to have his so-called claim adjudicated in any court. He has done absolutely nothing. He has merely proceeded on the Page 5 of 7 11th September 2018 ::: Uploaded on - 12/09/2018 ::: Downloaded on - 13/09/2018 01:34:20 ::: 2-EXA1091-15.DOC footing that his claim will be fully adjudicated and a decree in his favour obtained under Section 47 of the Code of Civil Procedure 19908 or under Order XXI Rule 58. What Mr Khandeparkar needs to establish Mehta's case is a decree. But the 1976 amendments to Section 2(2) and Section 47 of the Code of Civil Procedure, 1908 make that impossible in execution. Even if Mehta's claim is 'decided' in execution, it will not result in a decree as defined under the amended CPC. Without a decree in hand, Mehta can claim no right, title and interest in the Khurana plot.
19. Mr Khandeparkar submits that if the attachment has to continue, it must be made subject to "other interests"
within the meaning of Order 21 Rule 58(3)(c) and that I must, therefore, find that Mehta has such "other interests".
It is difficult to accept this submission on the facts as they are placed.
20. Chamber Summons No. 1426 of 2016 is also dismissed. No costs."
6. I am informed by Mr Jain for the Decree Holder that an appeal against this order was dismissed. Therefore, Rajinder Mehta has no existing right to the plot. If he was indeed ever of a mind to clear the decretal debt to help his brother-in-law, the Judgment Debtor, he had more than enough time to do so. Saying today that Mehta 'might' and 'perhaps will' come to the Judgment Debtor's aid is pointless. No decree holder can be expected to wait indefinitely for recovery while his judgment debtor plays fast and loose with orders and decrees. Even today, there is no firm proposal to pay the decretal debt or any part of it. There is merely an expression of hope. Quite literally, the Judgment Debtor opposes the application on nothing but a wing and a prayer.
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7. The application will have to be allowed as it currently stands. The application is not separately numbered but is dated 7th September 2018 and is supported by an Affidavit. It is made absolute in terms of prayer clauses (a) to (f ).
8. In addition, the set off claimed by the Decree Holder will be reduced by the amount of costs incurred by the Decree Holder in the auction sale proceedings, which is approximately Rs. 4.50 lakhs. This has not all been at paid once but different amounts have been paid at different times. Each of these amounts will carry interest at the rate of 6% per annum from their respective dates of payment. I make this order because it seems to be entirely inequitable that a Decree Holder should actually have to pay out money to recover money, and should, in the bargain, after waiting for months and years, not receive reasonable (if anything, too low) recompense on the expenses forced on him. In addition, the Sheriff's poundage will also have to be deducted before the set off. The decree will thus be marked partly satisfied after the aforesaid deductions.
9. The application and the Sheriff's Report are disposed of in these terms.
10. Liberty to the Decree Holder to apply.
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