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Calcutta High Court · body

2010 DIGILAW 733 (CAL)

Shrachi Securities Ltd. v. Razia Khatoon

2010-07-01

SANJIB BANERJEE

body2010
JUDGMENT 1. The only ground pressed is that by reason of the previous execution proceedings and the adjudication therein, the present suit is barred by law. 2. It is the case of the plaintiff that the plaintiff obtained an award in an arbitral reference against a company and the second defendant herein. The second defendant was the guarantor. The plaintiff put the award into execution and obtained some money from the sale of a Hazratgunj, Lucknow property of the second defendant. The plaintiff chased a Camac Street property for the further execution of the award. 3. The third defendant herein, a company which includes the second defendant as a shareholder to the extent of 15.61% therein and other associates of the second defendant, resisted the plaintiff’s attempt in such execution proceedings by claiming that it was the third defendant which was entitled to the flat at premises no.26, Camac Street. An initial order was passed in the execution proceedings permitting the conveyance to be executed in favour of the third defendant by the building’s owner or promoter but restraining the third defendant from disposing of the property or causing the conveyance to be effected in the name of any nominee. The execution proceedings ultimately failed. The questions that the plaintiff raised in the execution proceedings may now be assumed to have been answered against the plaintiff though it was not necessarily so. 4. The first defendant herein is the wife of a brother of the second defendant. The plaintiff says that the Camac Street property at Neelkant House has been sold by the third defendant company in favour of the first defendant. It is the plaintiff’s case that the entire exercise has been orchestrated to defeat the execution of the award and the plaintiff’s right to realise the just dues of the plaintiff. The plaint case proceeds on the basis that notwithstanding the corporate façade of the third defendant and ostensible transaction at arm’s length between the third defendant and the first defendant, the dramatis personae are so closely linked that it cannot be missed that it is the family of the second defendant which has helped put up the third defendant company, its ostensible shareholders and a close relative of the second defendant as a transferee of the property from the third defendant company. 5. 5. It is not necessary to assess the merits of the plaintiff’s grievance at this stage. The allegations in the plaint have now to be taken as correct for the first defendant challenger to succeed on a point of demurer. 6. The first defendant contends that in view of the provisions of Order XXI of the Code of Civil Procedure, particularly Rules 101 and 103 thereof, and in view of the general provisions contained in Order XXI Rules 97 to 103, the plaintiff was precluded from launching this suit after its failed attempt to execute the award against the same property. In support of such contention, the first defendant relies on the several provisions and, particularly, on Order XXI Rule 99 of the Code. Order XXI, Rule 99 of the Code provides as follows:- “R.99. Dispossession by decree-holder or purchaser:- (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.” 7. It would be evident on a plain reading of the first limb of the Rule that not every decree holder is covered thereby and the sub-rule is limited to a situation where a person has been dispossessed from a property by a decree holder who holds a decree for the possession of such property. The use of the punctuation in the sub-rule, the use of the expression “such property” in the second part of the sub-rule and the use of the expression “complaining of such dispossession” at the end of the sub-rule, would not admit of any other construction. The first defendant would have one believe that the words “for the possession of such property” appearing after the use of the word “decree” in the sub-rule points not to the nature of the decree but to the relief to be claimed by the applicant who is conferred the right to apply under the sub-rule. The first defendant would have one believe that the words “for the possession of such property” appearing after the use of the word “decree” in the sub-rule points not to the nature of the decree but to the relief to be claimed by the applicant who is conferred the right to apply under the sub-rule. Clearly, such argument cannot be accepted since the nature of the grievance that may be canvassed by the person who is referred to in the opening words of the sub-rule is indicated at the end of the sub–rule in the expression “complaining of such dispossession”. The words “for the possession of such property” govern the word “decree” that immediately precedes the expression and it would imply that it is only if a person is dispossessed from a property by a decree holder who holds a decree for possession of such property (or a purhcaser of such property in execution) that the Rule would come into play. 8. Since it is the admitted position that the plaintiff in the instant case had only a money award which may have been perfected into a decree or was a deemed decree by operation of law, there was no case of this plaintiff having been the holder of any decree for the possession of a property for Rule 99 to be attracted in this plaintiff’s case. 9. Once it is noticed that Rule 99 was not available to the case of the third defendant or any other who may or may not have been dispossessed by this plaintiff in execution of the arbitral award, there is no question of Rule 101 or Rule 103 of Order XXI of the Code coming into operation. 10. The first defendant’s application in the nature of demurer fails on the ground that the suit does not appear to be barred by any law. 11. G.A. No.407 of 2007 is dismissed without, however, any order as to costs. 12. After the order is made, the first defendant seeks extension of the time to file her written statement. The defendants will be permitted six weeks’ time to file their written statements, if not already filed. Documents should be discovered within four weeks thereafter; inspection forthwith thereupon and the plaintiff will have liberty to seek an early hearing of the suit 14 weeks hence. 13. The defendants will be permitted six weeks’ time to file their written statements, if not already filed. Documents should be discovered within four weeks thereafter; inspection forthwith thereupon and the plaintiff will have liberty to seek an early hearing of the suit 14 weeks hence. 13. G.A. No.3434 of 2006, G.A. No.1746 of 2006 and G.A. No.2466 of 2009 will appear as adjourned motion in the monthly list of July, 2010. 14. Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.