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2013 DIGILAW 881 (BOM)

N. v. Balta Industries VS Tike International

2013-04-24

ANOOP V.MOHTA

body2013
Judgment :- 1. The Plaintiffs on the basis of the exparte decree passed against the Defendants had taken out the execution to attach the movable and immovable properties of the Defendants. Based upon the averments made in the execution application and the warrant of attachment, the immovable properties of the Applicant have been attached in August, 2010. The Plaintiffs in support of the Affidavit to the Execution Application has not provided any details with regard to the ownership and the title of the properties in question. The basic averments are only to attach the property so described. 2. The property attached is situated at Plot No. 41, Kedia House, J.B. Nagar, Andheri (E), which is stated to be in the name of Defendant No.2. We are concerned only with the Applicant's property who is owner of the property in question. 3. The Applicant averred and relied upon the documents to show his ownership and title of the property : occupation certificate dated 4th June, 1987; the share certificate of the year, 1997; and agreement of sale and various other supporting documents to show that he is in occupation / possession of the property since, 1977 as the owner. The Plaintiffs in reply, just denied the claim of the Applicant and unable to place any contrary material on the record to support the execution application so taken out for the attachment of the property. Even otherwise, a third person like the Plaintiffs cannot challenge the title, share certificate and ownership documents in such a fashion, for the first time merely by raising objections and even contentions, that the contesting Defendants are also residents of the same premises. I am inclined to observe that the Defendants residence or address that itself cannot be the foundation to attach movable or immovable property to execute an exparte decree like this. The Plaintiffs or a party who wants to attach movable as well as immovable property must demonstrate on record that the Judgment debtor's property is owned, and/ or possessed and/ or he has right to dispose of the property in question. I am inclined to observe that in absence of any such averments, the issuance of warrant of attachment of the property in such a fashion is contrary to the provisions of law and can cause great injustice and hardship to all the concerned. I am inclined to observe that in absence of any such averments, the issuance of warrant of attachment of the property in such a fashion is contrary to the provisions of law and can cause great injustice and hardship to all the concerned. The third person's property just cannot be attached by the Plaintiff merely on the basis of the vague and general statement. 4. So far as movable properties are concerned, the attachment order as passed is itself illegal as the ownership itself is not proved and/ or supported by the Plaintiffs and on the contrary there is ample material on record to show that the properties in question belongs to and owned by the Applicant even before the date of the decree. It is relevant to note that even the suit as filed is of the year 2008. The documents of ownership and title including the share certificates have been prior to the date of filing of the suit in the name of the Applicant and are still in the name of the Applicant. Therefore, whole action so initiated by the Plaintiffs is contrary to law and not permissible. 5. For the above reasons, there is no question of sustaining the order of attachment of immovable and movable properties. Resultantly, the Chamber Simmons is allowed in terms of prayer clauses (a), (b), (c). 6. In the light of the above, it is a clear case of granting costs in favour of the Applicant, as he has suffered mentally as well as physically due to warrant of attachment of his properties at the instance of the Plaintiffs in such a fashion. Therefore, the Plaintiffs shall pay a cost of Rs. 15,000/-to the Applicant within a period of four weeks from today. I am not deciding the effect of wrong attachment of the properties of the applicant. The remedy is elsewhere. 7. It is made clear that the execution so filed against the Defendants to continue in accordance with the law. Liberty is granted to the Plaintiffs to take appropriate application with supporting material, if any. No costs.