w w w . L a w y e r S e r v i c e s . i n

Canara Bank v/s Metal and Metals Industries & Others

    Chamber Summons Nos.1127 of 2008, 1128 of 2008, 1129 of 2008 in Execution Application No.427 of 2006 in Delhi Suit No.2046 of 1986

    Decided On, 19 September 2008

    At, High Court of Judicature at Bombay


    For the Appearing Parties: H. Toor i/by N.M. Amin & Co. for Plaintiff /Decreeholder., M.S . Doctor with A. Dover & Vatswal Shah i/by Anil Agarwal for Applicant.

Judgment Text

1. These Chamber Summonses are taken out by the family members of the judgment- debtor in the above Suit in which a decree has been passed on 9.1.1995 by the Delhi High Court. Pursuant to the decree, the movable and immovable properties being the residential flat of Defendant No.4 and the articles contained therein have been attached.

2. The wife of Defendant No.4 claims title to the residential flat. She has produced the initial document of the title- holder of the suit flat being the Articles of Agreement dated 26.5.1979 under which one Haribhai Estates Private Limited transferred the attached flat to one Bihariji Finance & Traders Ltd. The share certificate came to be transferred to the name of Bihariji Finance & Traders Ltd. in January 1988.

3. The Sale Deed under which the wife of Defendant No.4 claims title is dated 24.8.1990. It is not by the said transferee, but of one Bihariji Ispat Udyog Limited in her favour. The title of the predecessor- in- title of the wife of Defendant No.4 is not shown. How Bihariji Ispat Udyog Limited came to enter into the Sale Deed when the share certificate stood in the name of Bihariji Finance & Traders Ltd. is not explained. The Sale Deed dated 24.8.1990 is on a Stamp Paper of Rs.50 / - purchased in July 1990 by the vendor. The document is unregistered. The relevant stamp duty was paid as late as on 3.6.2004. The document shows the sale by the vendor Bihariji Ispat Udyog Limited in favour of the wife of Defendant No.4 subject to the tenancy of Defendant No.4. The premises are shown to be in occupation of Defendant No.4. Consideration of Rs.Eight Lakhs for the flat is shown to have been paid, though the mode of payment of consideration is not mentioned in the document. It is mentioned in the document that the vendor has applied to be enrolled as a member of the Society. The share certificate does not show that the vendor has been conferred the membership. The actual enrollment of the vendor being the predecessor- in- title of the wife of Defendant No.4 is not yet shown. All that the document clearly shows is the tenancy of Defendant No.4. Though the document casts a duty upon the predecessor, being the wife of Defendant No.4, to pay stamp duty and registration charge, stamp duty has been paid 14 years after the execution of the document and registration charge has not been paid since the document is not registered.

4. It is contended on behalf of the Plaintiff /decree- holder that the flat belongs to the group of Companies of the family of Defendant No.4. Defendant No.4 is shown as the tenant and has occupancy rights and has been residing in the suit flat since inception with his family. The very peculiar evidence has been shown to substantiate this fact. It is contended that the family of Defendant No.4, who carried on various businesses in various names, mentioned the names / symbol of their family deity ?Shri Biharji Namah? in all their document s. Hence, the very initial document dated 26.5.1979, Exhibit- 1 to the Affidavit- in- support of the Chamber Summons, shows the said name on all the pages of the document. The share certificate of the Society also shows the said name. The Sale Deed relied upon by the wife of Defendant No.4 carries the said name in pencil on the top of the first page. The Plaintiff has sought to show that the attached property belongs to Defendant No.4 in the name of various Companies of the family. He resides there and is stated to have tenancy rights therein. The flat is accordingly sought to be attached.

5. The wife of Defendant No.4 being the Applicant, who has sought to raise the attachment, must show her separate and independent title to the attached premises. It may be mentioned that instead of filing a separate Suit for establishing her right in respect of the immovable property claimed by her, she is entitled, under the provisions of Order 21 Rule 54 of the Code of Civil Procedure to maintain her action in law by way of a Chamber Summons. Such Application is, therefore, in the nature of a Plaint. The onus lies entirely on the Applicant to prove her claim. She has placed reliance essentially upon the Sale Deed dated 24th August 1990. She claims her title under the Sale Deed.

6. Any sale under Section 54 of the Transfer of Property Act is an exchange for a price paid or promised or part paid and part promised. Such sale must be by a registered instrument. The consideration being the price for sale of the flat claimed by the wife of Defendant No.4 is stated to be Rs.8 Lakhs. The document shows that it has been fully paid. The consideration is not shown to be in cash or cheque. It is not known whether the Applicant has paid consideration from her own separate funds. If that is not shown the ?sale? contemplated under the aforesaid document would not fall within the provisions of Section 54 of the Transfer of Property Act since it cannot be seen to be a transfer of ownership for a price.

7. Showing the payment of consideration of the price is, therefore, the seminal requirement in an Application for raising an attachment. Unless that is shown and substantiated by the Applicant, who is in the nature of a Plaintiff, the transfer by sale in favour of the Applicant cannot be seen. Without showing her title to the property, no claim for raising attachment can be made.

8. The Applicant has shown payment of certain maintenance charges and audited income tax returns, which are stated to have been filed since 2001. The flat being in her name the maintenance charges may be paid by her. That, however, does not confer title upon the Applicant.

9. Interestingly, the Applicant has herself annexed a letter of the Society addressed to her vendor as late as on 5th July 2002 in respect of the transfer sought by her vendor from the original member of the Society being Bihariji Finance & Traders Ltd. Upon the fact that the relevant transfer fee has not been paid to the Society by her vendor the transfer was resisted by the Society. The Society called upon the vendor of the Applicant to produce the document showing the required stamp duty paid whilst the Society considered the proper market value of the flat as on the date of the transfer for which the transfer fee was to be paid to the Society. It is, therefore, that the Sale Deed in favour of the wife of Defendant No.4 has been got stamped. Consequently, it is seen that in a document of 1990 neither registration nor adequate stamping was done for more than a decade until the flat was required to be transferred in the name of the vendor of the Applicant and presumably thereafter to the Applicant.

10. The Applicant has not even traced her title through her predecessor- in- title. Her vendor also has no title. The attached flat continues to be in the name of the initial holder Bihariji Finance & Traders Ltd. which is the Company in which Defendant No.4 is stated to be a Director.

11. Mr. Toor on behalf of the judgment- creditor drew my attention to the address of the signatory of the purchaser in the Agreement dated 26.5.1979, showing Sureka building. Defendant No.4- Rajkumar Sureka is stated to be belonging to the same family.

12. Interestingly, the Applicant has herself shown the bills of the Society issued as late as in June 2008 in the name of Bihariji Finance & Traders Ltd., which is the predecessor- intile of her vendor. The receipts of the Society are also issued in the name of the said Company showing compensation and maintenance paid to the Society not by the wife of Defendant No.4 as claimed by her but by the predecessor- in- title of the vendor.

13. The Applicant has not shown her absolute right, title and interest in the suit flat to be able to maintain an Application to raise the attachment by the decree- holder in respect of the residential flat in which, admittedly, the judgment- debtor, Defendant No.4, resides and in which he initially resided as a tenant. It may be mentioned that the Applicant has herself claimed that after the Sale Deed dated 24th August 1990 came to be executed, her husband, Defendant No.4, stopped paying rents.

14. If the Applicant has taken the flat subject to the tenancy of Defendant No.4 as is specifically recited in the Agreement under a genuine and bonafide transfer for consideration, neither would tenancy rights of Defendant No.4 be relinquished, nor would the monthly rent of Rs.4,000 / -, which he had hitherto paid be discontinued. In fact, that would have been reflected in the income tax returns of the Applicant, which are not produced before the Court. Consequently, even the oral case of the Applicant that Defendant No.4 ceased to be a tenant is seen to be false. Tenancy rights of Defendant No.4 specifically shown in the Sale Deed relied upon by the Applicant cannot be taken to be relinquished nor abandoned.

15. Mr. Doctor sought to contend that the Sale Deed does not require registration. This is despite the fact that the last clause in the Sale Deed itself mentions about the liability of the wife of Defendant No.4 to pay the registration charges. Mr. Doctor relied upon Section 41 of the Maharashtra Cooperative Societies Act, 1960, to show that the Sale Deed is not registrable, Section 54 of the Transfer of Property Act notwithstanding. Section 41 aforesaid is in respect of the registration of instrument s relating to shares and debentures of the Society. That would relate to the share certificate of the Society. The share certificate is not registered and is not registrable. The section does not apply to the Sale Deed executed transferring the immovable property of the Society from the vendor named therein to the purchaser named therein. Such a Sale Deed constitutes a transfer of immovable property and is, therefore, registrable, though the shares in the Society evidenced by the share certificates need not be.

16. Mr. Doctor drew my attention to a judgment of this Court in the case of Usha Arvind Dongre vs. Suresh Raghunath Kotwal, (1990 Maharashtra Law Journal 306). That judgment is in respect of a tenant Co-partnership Housing Society in which case land and building of the Society belonged to the Society. Consequently, it has been observed in paragraph 8 of that judgment that in the case of such Society the entire building belongs to the Housing Society and the member would only occupy the flat by virtue of membership and only shares of such Society. Hence, in such a Society the transfer of the shares would not require registration under Section 17(1)(b) of the Registration Act as the shares would be exempted from compulsory registration under Section 41 of the Maharashtra Co-operative Societies Act. The document of title relied upon by the wife of Defendant No.4 as the Applicant to raise the attachment on the residential flat No.33 in Maker Tower is under the Sale Deed. Her claim is that of the purchaser of the flat to the exclusion of her husband who was tenant in the flat. Her claim is not that of a member in the Society alone. She is not a member of the Society. Her name is not even shown in the share certificate as such. The right, title and interest of the immovable property which she claims under the Sale Deed is upon the transfer contemplated under the Transfer of Property Act. Consequent upon such transfer, if membership in the Society would be transferred to her, the share certificate would be accordingly altered, which document need not be registered. The Applicant, wife of Defendant No.4, cannot base her case upon the unregistered document.

17. No case for raising attachment on Flat No.33, Maker Tower-A, Cuffe Parade, Mumbai 400005 is made out. The attachment on the said flat is confirmed.

18. The Applicant has also sought to raise attachment on one refrigerator. The Applicant has produced a bill of Om Electronics dated 31.3.2005 in the name of the Applicant to make out her case of ownership of the said refrigerator. It is for the Applicant to prove the bill. Even upon the proof of the execution of the bill, it is for the Applicant to further show that the bill relates to the precise refrigerator, which has been attached. The bill relied upon by the Applicant shows her address not at the attached suit premises but at 303 Abhay Steel House, Baroda Street, Carnac Bunder, Mumbai 400009. This bill, therefore, does not relate to the attached movable items and no attachment can be raised based upon such a bill.

19. The Plaintiff/decree- holder has sought to show that the sons of Defendant No.4 are carrying on business in the name of Executive Trading Co. Pvt. Ltd. The Affidavit- in- support of the Application itself shows that the Applicant in Chamber Summons No.1927 of 2008, one of the sons of Defendant No.4, carries on business in the name and style of Executive Trading Co. Pvt. Ltd. having its registered office at 303 Abhay Steel House, 59 E Baroda Street, Carnac Bunder, Mumbai 400009, as a Director. Consequently, the wife of Defendant No.4 has sought to pass off a movable item being a refrigerator purchased for the said business at the premises of the business to seek to raise attachment on one of the movables in the flat in which the judgment- debtor resides.

20. The sons of Defendant No.4 have relied upon certain bills for certain movables to raise attachment upon the movables in the suit flat. None of these bills shows the precise article attached. Aside from producing before the Court several bills, which are in a bunch and annexed to the Affidavit- in support of Chamber Summons Nos.1127 and 1128 of 2008, Mr.Doctor has not been able to collate any of the bills with any of the attached items. Strangely, though a colour TV of 14

Please Login To View The Full Judgment!

Inches is attached, a bill in respect of TV of 21 Inches is produced. The Plaintiff's Advocate has shown that though specific brand of the movables, which are attached, are shown in the list of attached properties, the bills produced by the sons of Defendant No.4 do not show particulars of those brands. Hence, though a pioneer DVD player is attached, one of the invoices is for ?DVD/VCD player? and another is found in respect of ?Sony DVD/DVP.? 21. It is for the Applicant who seeks to raise the attachment to show and prove the ownership of the movables in which he claims title. Mere production of bills is not sufficient. The author of the bills is required to be examined. He would require to produce document s relating to the sale of the movable in the ordinary course of his business evidenced by the registers of stocks or sale, invoices etc. In this case, the bills cannot even be collated to the attached articles. Several bills for articles which are not even attached are also sought to be pushed into the record. There is no attempt made to prove the truth of the content s of those bills either. No Affidavit of the sellers of the goods is filed. The documents remain completely unsubstantiated and unproved. The attachment, by such a shoddy exercise, cannot be raised. 22. Consequently, all the Chamber Summonses are dismissed with costs fixed at Rs.2,000 / - in each of them. The original bills as well as the original Sale Deed dated 24th August 1998 produced by the three Applicant s are returned.