Bombay High Court
421 202 vs Unknown on 29 October, 2013
Bench: R.D. Dhanuka
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EXA539.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
EXECUTION APPLICATION NO. 539 OF 2012
IN
SUIT NO. 3279 OF 1987
Shri Anant Narayan Kajrolkar )
28-A, Anand Vihar Co-operative Housing)
Society Ltd., 21st Road, Khar (W), )
Bombay 400 052 and 12-A, Shivkrupa )
N.S.S.Road, Dombivli (W), Dist.Thane )
421 202 ) ..... Plaintiff
VERSUS
1(a) Mrs. Neeta Madhukar Kajrolkar )
the wife of the Deceased Defendant No.1 )
1(b) Miss Swati Madhukar Kajrolkar )
the unmarried elder daughter of deceased)
defendant no.1 )
1(c) Miss Preeti Madhukar Kajrolkar )
(Minor) the unmarried younger daughter)
of Deceased deft.no.1 )
All legal heirs and successors of )
Mr. Madhukar N.Kajrolkar, org.Deft.no.1)
all residing at 28-A, Anand Vihar Co-op. )
Hsg.Soc.Ltd. 21st Road, Khar (W), )
Bombay 400 052 )
2. M/s.Anand Vihar Co-op. Hsg.Society )
Ltd., Samaj Kendra 20th Road, Khar (W) )
Bombay 400 052 ) ..... Defendants
Mr.B.Colabawala, a/w. Mr.Sachin Kudalkar, i/b. Madekar & Co. for the
Applicant/Decree holder.
Mr.Y.V.Divekar, i/b. Divekar & Co. for defendant nos. 1(b) and 1(c ).
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EXA539.12
CORAM : R.D. DHANUKA, J.
RESERVED ON : 10th OCTOBER, 2013
PRONOUNCED ON : 29th OCTOBER, 2013
JUDGMENT :
The plaintiff has filed a praecipe in a pending execution application for
seeking production of papers and proceedings in the execution application before
this court to enable the plaintiff to request this court to direct the execution
department to issue warrant of sale in respect of the suit property and to direct the
office of the Commissioner of Taking Accounts to proceed to auction and sell the
suit property and for appointment of a suitable person as a commissioner to
distribute the net sell proceeds from the sale of the suit property. Some of the
relevant facts for the purpose of deciding this prayers are as under :-
2. On 20th December, 2007 this court passed a consent decree in Suit No. 3279
of 1987. Suit was disposed of in terms of the consent terms arrived at between the
parties. In the said suit, the plaintiff had prayed for a declaration that the plaintiff
was owner of the ½ share of the plot of land described in the plaint and also ½
share of the premise constructed thereon and that the original defendant no.1,
defendant nos.1(a), 1(b) and 1(c) were the rank trasspasser upon ½ share of the
plaintiff on the suit land. Plaintiff had also prayed for peaceful, vacant possession
and occupation of ½ portion of the suit premises. In the said consent terms, it was
agreed between the plaintiff and defendant nos. 1(a) to defendant no.1(c) to find a
common developer/purchaser to develop/acquire the suit property to effectively
enable the plaintiff on the one hand and defendant nos. 1(a) to 1(c) on the other
hand to recover and realize their respective 50% share in the ownership and
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occupancy rights of the suit property. Both parties were permitted to choose to
separately negotiate with such purchaser/developer within a period not exceeding
six months from the date of the said decree. It was further provided that if the
contract for sale/development/redevelopment of the suit property did not
materialize or got concluded within a period of six months, either the plaintiff or
defendant nos. 1(a) to 1(c) shall be at liberty to apply to this Court for sale of the
suit property through this Court on such terms and conditions as this Court may
deem fit. It was agreed that both parties shall be entitled to receive 50% of the
amount so recovered/realized through such Court sale. On 2nd December, 2008
decree was drawn.
3. On 9th February, 2009, plaintiff filed an execution application (539 of 2012)
for issuance of warrant of sale of the suit property. On 26 th February, 2009,
plaintiff filed chamber summons (372 of 2009) in execution application inter alia
praying that consent decree be executed and warrant of sale under Order 21 Rule
64 read with Rule 11(J) (ii) of the Code of Civil Procedure, 1908 be issued for sale
of the property and for appointment of Court Commissioner for taking Accounts
with a direction to proceed to auction and sell the suit property and the
Commissioner be directed to distribute the net sell proceeds from the sell of the
suit property.
4. On 29th April, 2009, plaintiff and defendant nos. 1(b) and 1(c) filed consent
minutes of the order in the said chamber summons (372 of 2009). It was agreed
that the plaintiff and defendant nos. 1(b) and 1(c) shall take efforts to find common
developer/purchaser to develop/purchase the suit property within nine months
from 29th April, 2009 and undertook not to apply for any extension of time. It was
further agreed that in the event of the failure of parties to find common
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developer/purchaser to develop/purchase the suit property within the time
stipulated, then in that event the chamber summons shall stand, absolute in terms
of prayer clauses (b), (c ) and (d). Prayers (b), (c ) and (d) of the said chamber
summons (372 of 2009) are extracted as under :-
(b) Warrant of sale as provided under Order 21
Rule 64 read with Rule 11(J) (ii) of the Code of
Civil Procedure, 1908 be issued for sell of the
property viz. Plot No. 28-A, admeasuring about
331.90 sq.mtrs. together with Bungalow standing
thereon in Anand Vihar Co-operative Housing
Society Ltd., Khar (West), Mumbai - 400 052
(more particularly described in Exhibit A to the
Affidavit in Support of the present Chamber
Summons) ;
(c ) The Office of Commissioner for taking
accounts be directed to proceed to auction and sell
the suit property (more particularly described in
Exhibit A to the Affidavit in Support of the present
Chamber Summons);
(d) A suitable person be appointed as a
Commissioner to distribute the net sell proceeds
from the sell of the suit property (more
particularly described in Exhibit A the Affidavit in
Support of the present Chamber Summons).
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5. On 27th January, 2010 defendant nos. 1(b) and 1(c) filed chamber summons
(155 of 2010) inter alia praying for extension of time to find common
purchaser/developer by one year from 29 th January, 2010. By an order dated 4 th
October, 2010, the said Chamber Summons (155 of 2010) was disposed of by this
court. This court accepted the request made by both parties that property be sold
by calling bids from the members of the public by an advertisement in newspaper
to the effect that the suit property be sold by auction. Defendants were permitted
to put in their offer for the purpose of buying of share of the plaintiff. By the said
order, the said chamber summons was disposed of. The matter was however
directed to appear on 18th November, 2010 directing the Prothonotary and Senior
Master to produce in the Court all the sealed envelopes so as to decide as to who
was the highest bidder and matter was directed to be placed on board for direction.
Pursuant to the notice issued in newspaper, 10 sealed packets were received from
the members of the public. By an order dated 24 th November, 2010, this court
declared defendant nos.1(b) and 1(c ) as highest bidder and one Mr. Ashish Mohite
was treated as second highest bidder.
6. By an order dated 14th December, 2010 passed in the execution application,
this court directed defendant nos. 1(b) and 1(c ) to deposit Rs.2 crores (out of Rs.4
crores) on or before 5th February, 2011 being 50% of the total consideration
payable by the defendant nos. 1(b) and 1(c ) to the plaintiff for buying plaintiff's
share. Defendant nos. 1(b) and 1(c ) challenged the said order on 14th December,
2010 before the Division Bench by filing appeal (L) No. 27 of 2011. By an order
dated 31st January, 2011, Division Bench of this Court extended time to deposit the
said amount of Rs.2 crores. Rs. 1 crores was directed to be deposited on or before
7th February, 2011 and remaining amount was directed to be deposited on or before
21st February, 2011. Defendant nos. 1(b) and 1(c ) however did not deposit the
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said amount. By an order dated 1st March, 2011, this court gave an opportunity to
the second highest bidder I.e. Mr.Ashish Mohite to consider on his bid. Mr.Ashish
Mohite accepted to deposit Rs.Seven crores within the time specified. Though
extension was granted to Mr.Ashish Mohite to deposit the said amount, Mr.Ashish
Mohite did not deposit any amount in this court. On 19 th June, 2013, the plaintiff
filed an affidavit in execution application contending that in view of the default
committed by defendant nos. 1(b) and 1(c ) and Mr.Ashish Mohite and in view of
the failure of the parties to find a common developer/purchaser to
develop/purchase the suit property within the time stipulated, the chamber
summons No. 372 of 2009 stood operative and is made absolute in terms of
prayers (b), (c ) and (d) of the Chamber Summons No. 372 of 2009. It is the case
of the plaintiff that defendants are delaying the execution of the decree and thus
seeks further order in compliance with prayer clauses (b), (c ) and (d) of the
Chamber Summons. This application is opposed by defendant nos. 1(b) and 1(c )
by filing affidavit in reply.
7. On perusal of the affidavit in reply filed by the defendants and on hearing
the arguments advanced by the learned counsel, following issues would arise for
consideration of this court :-
(a) Whether reliefs are claimed by the applicant
on the praecipe filed by the applicant or in the
existing execution application ?
(b) Whether prayers in Chamber Summons No.
372 of 2009 have become infructous in view of the
order passed by this court on 4th October, 2010 in
Chamber Summons No. 155 of 2010?
(c) Whether execution application is required to
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be transferred to City Civil Court at Bombay and this
court has no jurisdiction to entertain the present
execution application?
(d) Whether notice to the society is necessary
before any order is passed by this court in this
execution application?
8. Mr.Divekar, learned counsel appearing for defendants submit that the
applicant had filed chamber summons for seeking similar reliefs under the
provisions of Bombay High Court (OS) Rules. No such relief as prayed in the
present proceedings can be granted by this court on praecipe. It is submitted that
affidavit filed alongwith praecipe cannot be construed as an application required to
be filed under the provisions of High Court Rules. No order thus can be passed by
this court on praecipe and affidavit.
9. Mr.Divekar submits that society was defendant no.2 in the suit and was
heard by this court when order was passed on 24 th November, 2010. It is
submitted that since suit property is situated in the society and if this property is
sold to an outsider who would have to become a member of the society, such
member would have to follow the rules and bye-laws of the society. It is
submitted that defendant no.2 society was constituted for the purpose of benefits of
members of minority community, no order can be passed without issuing notice
upon the said society and without considering their objection. Learned counsel
placed reliance on the order dated 24 th November, 2010 passed by this court in
support of this submission.
10. Mr.Divekar submits that prayers of the applicant in the praecipe as well as
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affidavit would suggest as if chamber summons No. 372 of 2009 is still pending.
It is submitted that in view of the order passed by this court in Chamber Summons
No. 155 of 2010, Chamber Summons No. 372 of 2009 has become infructous and
no reliefs which were subject matter of the Chamber Summons No. 372 of 2009
can be now pressed by praecipe or by an affidavit or otherwise.
11. Mr.Divekar, learned counsel for the defendants 1(b) and 1(c) then submit
that since the suit claim was valued at Rs.55,000/- when the suit was filed in this
court and in view of sections 3 and 4 of the Bombay City Civil Court Act, 1948
duly amended by Maharashtra Act, 25 of 2012, execution application is also
required to be transferred to City Civil Court for adjudication. It is submitted that
this court has no jurisdiction to entertain any such execution application on
praecipe or affidavit or otherwise.
12. Mr.Divekar submits that clause 13 of the consent terms arrived at between
the parties would indicate that this court had passed preliminary decree and not a
final decree. It is submitted that since the property was directed to be divided by
metes and bound or by sale of the property by public auction which presupposes
that the decree passed by this court was not a final decree. It is submitted that
since suit claim was less than Rs.1 crores, this pending suit itself stood transfer to
the City Civil Court in view of section 4A of Bombay City Civil Court Rules 1948.
It is submitted that clause 5 of the consent terms is invoked, other terms of the
consent terms would not operate.
13. It is lastly submitted by Mr.Divekar that suit property can be divided into
two parts of 50% each by metes and bound. There are to separate share certificates
issued by the society (1) in the name of the plaintiff and another in the name of
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defendant nos. 1(b) and 1(c) and defendant nos. 1(b) and 1(c) are agreeable if the
property is divided by metes and bounds.
14. Mr. Colabawala, learned counsel appearing on behalf of the plaintiff submits
that applicants have not pressed for any reliefs by praecipe as alleged by the
defendants. It is submitted that the applicant has filed detailed affidavit in which
all subsequent events having taken place after passing of the order of this court in
Chamber Summons are brought on record. It is submitted that since defendants
and the second highest bidder also failed to comply with the order passed by this
court, sale ordered by this court could not materialized. Prayers (b), ( c) and (d) of
the Chamber Summons No. 372 of 2009 are thus required to be enforced. It is
submitted that the said reliefs prayed in Chamber Summons No. 372 of 2009 have
not become infructous by virtue of order passed by this court on 4 th October, 2010
in Chamber Summons No. 155 of 2010 as canvassed by the defendants or
otherwise. It is submitted that even after passing of the order by this court in
Chamber Summons Nos. 372 of 2009 and 155 of 2010, matter was placed on
board before learned Chamber Judge for seeking compliance of the order and no
chamber summons was required to be taken by any of the party. In the alternative,
it is submitted that the submission of the defendants that chamber summons and/or
Notice of Motion ought to have been taken out and no such order can be passed on
the affidavit filed by the applicant is out of frustration and in any event hyper
technical and raised with a view to further delay execution of the proceedings.
15. Mr.Colabawala, learned counsel submits that the society was party to the
suit. The said suit has been disposed off. Defendant no.2 society was not party to
the consent terms and consent decree. It is submitted that no reliefs are claimed by
the applicant against defendant no.2 society. Mr.Colabawala placed reliance on the
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judgment of this court in case of Writ Petition No. 2823 of 2012 filed by the same
society in this court (delivered on 14th August, 2012). Reliance is placed on
paragraphs 24 and 25 of the said judgment which read thus :-
24. Mr. Kumar submitted that the Society was
established under P.W.R. Scheme. I do not find
any merit in this submission. In the first place, the
land was not alloted free of cost to the Society but
it was alloted at a concessional rate. Secondly, by
communication dated 16.01.2009, the Collector,
Bombay Suburban District categorically informed
the Secretary of the Society that the land was not
allotted to the Society under P.W.R.-219. In view
thereof, I do not find that the Society was
registered under the backward class co-operative
housing society scheme, which was formally
known as 'P.W.R.-219'. This aspect is considered
by the authorities below. The authorities below
also recorded that the loan obtained by the society
was repaid. Merely because the Government
authorities have advanced the loan under the
various Government Resolutions to the Society on
the finding that it is a backward class society, that
will not alter its basic characteristics. In my
opinion, the Society had lost its original
characteristics as a society of a backward class
persons in view of compliances made after
16.08.1949 onwards. Section 23 (1) of the Act
provides for open membership and reads as under:
"23. Open membership
(1) No society shall, without sufficient cause,
refuse admission to membership to any person
duly qualified therefor under the provisions of this
Act and its bye-laws."
25. Mr. Kumar submitted that the applicant did not
obtain N.O.C. of Social Welfare Department as
also he does not belong to the backward class and
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this constitutes a sufficient cause for refusing
membership to the applicant. It is not the case of
the Society that the applicant is not a qualified
member under the provisions of the Act and bye-
laws of the Society. The case of the Society is that
it had availed financial assistance under the
Schemes as also under the Resolutions passed by
the Government of Maharashtra extending such
benefits to the backward class societies. By
availing financial assistance under the various
Resolutions and the Schemes of the State of
Maharashtra, in my opinion, the Society has not
lost its characteristics as a Society that is open for
all irrespective of caste and creed.
16.
It is submitted by Mr.Colabawala that this court has already taken a view
that the said society had lost its original characteristics as a society of a backward
class persons in view of compliances made on 16 th August, 1949 onwards and is
open for all irrespective of caste and creed. It is submitted that in view of the
consent terms arrived at between the parties for sale of the property, society is not
concerned with outcome of this proceedings. Any member of public who would
purchase the property would be governed by the rules and bye-laws of the society.
It is not necessary to issue any notice upon the society and their presence is not
required for determination of the issue involved in this proceedings in any manner
whatsoever. Mr.Colabawala invited my attention to the consent terms filed
between the parties, various orders passed by this court in terms of the consent
terms and in chamber summons. By an order dated 4 th October, 2010, this court
accepted the request made by both parties that property be sold by the members of
the public by giving advertisement in the newspaper and directed parties to take
steps accordingly. Defendants were also permitted to put therein offer for the
purpose of buying out the share of the plaintiff. It was made clear that once the
person who was going to purchase the property as the highest bidder was final,
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further steps could be taken subject to orders from this court. Matter was directed
to be taken on board on 18th November, 2010 to enable the Prothonotary and
Senior Master to produce all the sealed envelops so as to decide as to who was
highest bidder. Chamber Summons was disposed of by the said order. It is
submitted that since defendants committed default in making payment of the bid
amount, this court declared second highest bidder as successful bidder. Even
second bidder did not deposit the amount. Defendants as well as second highest
bidder was given extension of time to deposit the amount but failed to deposit
inspite of extension. Learned counsel also invited my attention that defendants
cannot be allowed to raise any issue about issuance of notice to the society or to
divide the property by metes and bounds at this stage. In view of the failutre on
the part of the auction purchaser and the defendants to purchase the property, the
suit property has to be disposed of by auction.
17. As far as issue raised by the defendants across the bar that decree passed by
this court was not a final decree but was a preliminary decree is concerned,
Mr.Colabawala submits that no such plea has been raised by the defendants in
affidavit in reply opposing reliefs now claimed nor was raised at any point of time
in earlier chamber summons filed by the parties. It is submitted that in any event,
the decree passed by this court is a final decree and claims and rights of both
parties are already crystallized by an agreement arrived at between the parties
which were recorded in the said consent terms in terms of which decree has
already been passed by this court. Merely because subsequent steps have to be
taken by the parties in execution of the said consent terms which are under
supervision of this court, it cannot be pleaded by the defendants that decree passed
by this court was a preliminary decree and not a final decree.
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18. In so far as issue of jurisdiction raised by the defendants that in view of the
suit claim valued in the plaint was less than Rs.one crores and in view of transfer
of pecuniary jurisdiction of this court in respect of the claim if not more than
Rs.one crore execution application is also required to be transferred to the City
Civil Court and/or has stood transferred to City Civil Court is concerned, it is
submitted by Mr.Colabawala that much prior to the amendment to section 3 of the
Bombay City Civil Court Act, 1948 and insertion of Rule 4A of the Bombay City
Civil Court Rules, 1948, applicant has already filed execution application in this
court and thus pending execution application is not required to be transferred and
does not stand transferred to the City Civil Court merely because suit claim valued
Rs.1 crore. It is submitted they in any event, the 50% claim of the plaintiff based
on the consent terms which is subject matter of this execution application is much
more than Rs.1 crore. It is submitted that valuation of the subject matter of the
execution application has to be considered for the purpose of jurisdiction and not
the valuation of the suit claim and the plaint when it was lodged. Mr.Colabawala
submits that under section 37 of the Code of Civil Procedure, 1908 pending
execution application on the date of the amendment of section 3 are required to be
adjudicated upon by this court only and not by City Civil Court. Mr.Colabawala
placed reliance on the judgment of the Supreme Court in case of Punjab National
Bank, Dasuya vs.Chajju Ram and others reported in (2000) 6 SCC 655 in support
of his submission that since the value of the subject matter of this execution
application is more than Rs.one crore, pending execution application cannot be
transferred to the City Civil Court.
19. For the purpose of deciding the issue involved in this proceedings, reference
to sections (3), 4A, 12 and 18 of the Bombay City Civil Court Act, 1948 would be
relevant which read thus :-
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3. Constitution of City Court - The [State]
Government may, by notification in the Official
Gazette, establish for the Greater Bombay a court,
to be called the Bombay City Civil Court.
Notwithstanding anything contained in any law,
such court shall have jurisdiction to receive, try
and dispose of all suits and other proceedings of a
civil nature, arising within the Greater Bombay,
except suits or proceedings which are congnizable-
(a) by the High Court as a Court of Admiralty or
Vice-Admiralty as a Colonial Court of Admiralty,
or as a Court having testamentary, intestate or
matrimonial Jurisdiction,or
(b) by the High Court for the relief of insolvent
debtors, or
(c) by the High Court under any special law other
than the Letters Patent, or
[ (c-1) by the High Court under the Parsi Marriage
and Divorce Act, 1936; or
(c-2) by the High Court in respect of intellectural
property matters; or ]
(d) by the Small Cause Court:
4A. [Transfer of suits and proceedings
congnizable under section 3, to City Court] -
(1) Notwithstanding anything contained in
section 9 of the Bombay City Civil Court any the
Bombay Court of Small Causes of Small Causes
(Enhancement of Pecuniary Jurisdiction and
Amendment) Act, 1986 (Mah.XV of 1987), all
suits and proceedings cognizable by the City Court
under section 3, and pending in the High Court on
the date of coming into force of section 4 of the
Bombay City Civil Court (Amendment) Act, 2012,
not being suits or proceedings falling under
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clauses (a) to (d) of section 3, shall stand
transferred to the City Court.].
(2) Any suit or proceeding so transferred shall
be heard and disposed of by the City Court and the
City Court shall have all the powers and
jurisdiction in respect thereof as if it had been
originally instituted in that Court.
(3) In any such suit or proceeding institution
fees shall be paid credit being given to any Court-
fee levied in the High Court and cost incurred in
the High Court till the date of transfer shall be
assessed by the City Court in such manner as the
[State]Government may, after consultation with
the High Court, determine by rules.]
12. High Court jurisdiction barred except in
certain cases - Notwithstanding anything
contained in any law, the High Court shall not
have jurisdiction to try suits and proceedings
congnizable by the City Court :
Provided that the High Court may, for any
special reason, and at any stage remove for trial by
itself any suit or proceeding from the City Court.
18. Transfer of suits pending in High Court.-
(1) All suits and proceedings cognizable by the
City Court and pending in the High Court in which
issues have not been settled or evidence has not
been recorded on or before the date of the coming
into force of this Act, shall be transferred to the
City Court and shall be heard and disposed of by
the City Court and the City Court shall have all the
powers and jurisdiction thereof as if they had been
originally instituted in that Court.
(2) In any suit or proceeding so transferred
institution fee shall be paid, credit being given to
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any Court fee levied in the High Court, and costs
incurred in the High Court till the date of the
transfer shall be assessed by the City Court in
such manner as the [State] Government may,
after consultation with the High Court, determine
by rules.
20. It would also be appropriate to consider sections 37, 38 and 39 of the Code
of Civil Procedure, 1908 which read thus :-
37. Definition of Court which passed a decree.
The expression "Court which passed a decree", or
words to that effect, shall, in relation to the execution
of decrees, unless there is anything repugnant in the
subject or context, be deemed to include,-
(a) where the decree to be executed has been passed in
the exercise of appellate jurisdiction, the Court of first
instance, and
(b) where the Court of first instance has ceased to exist
or to have jurisdiction to execute it, the Court which, if
the suit wherein the decree was passed was instituted
at the time of making the application for the execution
of the decree, would have jurisdiction to try such suit.
1[Explanation.-The Court of first instance does not
cease to have jurisdiction to execute a decree merely
on the ground that after the institution of the suit
wherein the decree was passed or after the passing of
the decree, any area has been transferred from the
jurisdiction of that Court to the jurisdiction of any
other Court; but in every such case, such other Court
shall also have jurisdiction to execute the decree, if at
the time of making the application for execution of the
decree it would have jurisdiction to try the said suit.]
38. Court by which decree may be executed.- A
decree may be executed either by the Court which
passed it, or by the Court to which it is sent for
execution.
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39. Transfer of decree.-
(1) The Court which passed a decree may, on the application of
the decree-holder, send it for execution to another Court 1[of
competent jurisdiction],-
(a) if the person against whom the decree is passed actually and
voluntarily resides or carries on business, or personally works
for gain, within the local limits of the jurisdiction of such other
Court, or
(b) if such person has not property within the local limits of the
jurisdiction of the Court which passed the decree sufficient to
satisfy such decree and has property within the local limits of
the jurisdiction of such other Court, or
(c) if the decree directs the sale or delivery of immovable
property situate outside the local limits of the jurisdiction of the
Court which passed it, or
(d) if the Court which passed the decree considers for any other
reason, which it shall record in writing, that the decree should
be executed by such other Court.
(2) The Court which passed the decree may of its own motion
send it for execution to any subordinate Court of competent
jurisdiction.
1[(3) For the purposes of this section, a Court shall be deemed
to be a Court of competent jurisdiction if, at the time of making
the application for the transfer of decree to it, such Court would
have jurisdiction to try the suit in which such decree was
passed.]
2[(4)Nothing in this section shall be deemed to authorise the
Court which passed a decree to execute such decree against any
person or property outside the local limits of its jurisdiction.]
REASONS AND CONCLUSION :
21. As far as issue of notice to the society is concerned, it is not in dispute that
the society was not a party to the consent terms or in the execution application. On
perusal of the consent terms, it is clear that the consent terms shall be given effect
in observation of existing law and scheme and all the necessary terms as applicable
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in accordance with law shall be obtained. This court has already held in case of
Anand Vihar Co-operative Housing Soc. Ltd. vs. Dileep Jayawant Vedpathak in
Writ Petition no. 2823 of 2012, which petition was filed by the defendant no.2
itself that the said society has lost its characteristics as a society and is open for all
irrespective of caste and creed. In my view society is neither a necessary party nor
a proper party to this execution application. Any party who would purchase the
property in auction would have to comply with the provisions of the bye-laws and
rules of the said society. Presence of the society in this proceedings is not required
for adjudication of the dispute raised in this proceedings. I am not inclined to
accept submission of Mr.Divekar, learned counsel appearing for the defendant
nos.1(b) and 1(c) that no order can be passed by this Court without hearing the
society. No such objection has been raised by the defendants at any point of time
after filing of the consent terms in past. This submission of Mr.Divekar is thus
without any merits and is rejected.
22. In so far as issue raised by Mr.Divekar that no order can be passed on the
praecipe filed by the applicant is concerned, it is not in dispute that the applicant
has already filed detailed affidavit on 19 th June, 2013 and has referred to the
consent decree passed by this court and also execution application filed by the
applicant on 27th January, 2009. Applicant has also given all the details in the said
affidavit as to why the applicant became entitled to further reliefs and seeks
issuance of warrant of sale. It is also not in dispute that applicant/plaintiff has filed
an execution application in this Court for execution of same consent decree which
is pending in this Court.
23. On perusal of the order passed by R.Y.Ganoo J., on 4 th October, 2010 in
Chamber Summons No. 155 of 2010, it is clear that by the said chamber summons,
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this court has accepted the suggestion of both parties for sale of the suit property
by public auction in the manner agreed upon by both parties. By the said order,
the said chamber summons was disposed of in terms of the direction issued
therein. While disposing of the said chamber summons, it was clarified that once
the highest bidder was finalized by this court, further steps could be taken. Matter
was thus directed to appear on board on 18 th November, 2010 for direction to
enable the Prothonotary and Senior Master to produce in this court all the sealed
envelopes received from the bidders so as to decide as to who was the highest
bidder.
24.
On 24th November, 2010, suit appeared on the board of this court when the
officer from the Execution Department submitted 10 sealed packets received
pursuant to the notice in newspapers issued pursuant to the order passed by this
court on 4th October, 2010. The defendants through their learned counsel made a
statement that if the defendants were the highest bidder, entire amount of Rs.4
crores (towards 50% share of applicant) would have to be given to the plaintiff.
This court clarified that if arrangement between the plaintiff and defendant nos.
1(b) and 1(c) did not materialize, this court shall decide the claim of the second
highest bidder who has put in bid for Rs.7 crores. Matter was adjourned to 1 st
December, 2010 by consent of both parties to be shown under the caption of
directions.
25. On 14th December, 2010 Execution Application (L) No. 46 of 2009 appeared
before this court. This court directed defendant nos. 1(b) and 1(c) to deposit in this
court 50% of the total consideration payable to the plaintiff for buying his share.
This court directed defendant nos. 1(b) and 1(c) to deposit Rs.2 crores at the first
instance. By the said order, this court adjourned the matter to 7 th February, 2011
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for further direction.
26. Defendant nos. 1(b) and 1(c) filed an appeal against the said order [Appeal
(L) No.27 of 2011]. By an order dated 31st January, 2011 passed by Division
Bench, Division Bench disposed of the said appeal. Before the Division Bench,
defendant nos. 1(b) and 1(c) contended that it was not necessary to get any
certificate from the Social Welfare Department, when the flat was being taken over
by the heirs of one of the two co-owners and auction was held only to ascertain the
market value of the flat. This court made it clear that it would be open to the
defendant nos. 1(b) and 1(c) to raise that contention before the society and Social
Welfare Department and to file appropriate legal proceedings, if it becomes
necessary do to so. Division Bench of this court was of the view that impugned
order passed by the learned Single Judge did not suffer from any infirmity and
deserved to be dismissed. At the request of defendant nos. 1(b) and 1(c), Division
Bench granted extension of time to deposit Rs.1 crores till 7 th February, 2011 and
the balance of Rs.1 crores till 21st February, 2011. It was however clarified that in
case of default, the order of the learned Single Judge shall operate. Subject to the
extension and clarifications, appeal was disposed of as dismissed.
27. The execution application appeared on board before this court on 1st March,
2011. Defendant nos. 1(b) and 1(c) informed the court that they were not in a
position to comply with various terms as regards deposit of money. By an order
passed on 1st March, 2011, this court treated the second highest bidder Mr.Ashish
Mohite to be the successful bidder and directed him to deposit the total
consideration of Rs. 7 crores in three installments. This court passed a detailed
order for depositing the entire consideration and for transfer of the property in
favour of the second highest bidder. This court adjourned the execution
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application to 25th April, 2011 to report to the Court the progress of the matter and
to be shown in the column 'For Directions'.
28. The matter was thereafter taken on board on mentioning by this court on 21 st
March, 2011. This court granted extension of time to the second highest bidder to
deposit the amount. This court made it clear that if the amount was not so
deposited, the consequences as provided in the order dated 1st March, 2011 would
follow. It is not in dispute that the said second highest bidder did not deposit the
amount as directed and committed default. On perusal of the said order, it is clear
that the execution application filed by the applicant was on board from time to
time after disposal of the Chamber Summons No. 155 of 2010 by this court on 4 th
October, 2010. The said execution application filed by the applicant is still
pending. In my view, affidavit filed by the applicant to bring these subsequent
facts on record and to seek an order for issuance of warrant of sale is thus
maintainable. Defendant nos. 1(b) and 1(c) never raised any objection as to how
further directions could be issued by this court on the ground that execution
application itself was not maintainable as the suit was not finally decreed or on the
ground that no such direction could be issued on oral application of either party.
Defendant nos. 1(b) and 1(c) also did not raise an objection earlier that for want of
appropriate proceedings under Rule 121 of High Court (Original Side) Rules, no
order could be passed by this court even earlier. In my view, there is no substance
in the submission of Mr.Divekar that applicants are seeking any order for issuance
of warrant of sale on praecipe. When this matter was heard, execution application
itself was on board and was on board even on last several occasions when various
directions were issued. Some of the directions were issued at the instance of
defendant nos. 1(b) and 1(c). Objection thus raised by defendant nos. 1(b) and
1(c) is devoid of any merits.
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29. On perusal of the order dated 29th April, 2009 passed by this court in
Chamber Summons No. 372 of 2009, it is clear that this court had recorded
undertaking of both parties that they shall not raise any objection of any nature
whatsoever nature for sale/development of the suit property and shall not raise any
objections of any nature whatsoever for execution and implementation of the
consent terms dated 20th December, 2007and the said consent minutes of the order
dated 29th April, 2009. In view of such undertaking rendered by both parties, in
my view objections raised by defendant nos. 1(b) and 1(c) referred to aforesaid
cannot be allowed to be raised. In any event, objections being frivolous are
rejected.
30. As far as submission of Mr.Divekar that decree passed by this court on 20th
December, 2007 based on the consent terms and duly modified by an order dated
29th April, 2009 is not a final decree and/or is a preliminary decree and after
amendment to section 3 of Bombay City Civil Court Act, 1948 that the amount
claimed in the suit being less than Rs.1 crores, suit itself shall be transferred to the
City Civil Court is concerned, perusal of the record indicates that no such
objection was ever raised by defendant no.1(b) and 1(c) at any point of time after
passing of such consent decree. No such plea is raised even in affidavit in reply
filed in this proceedings. Objections raised by Mr.Divekar is thus without any
merits and is rejected. In my view, decree passed by this court is not preliminary
decree but is final decree. Merely because this Court has kept the matter on board
for direction to supervise the sale of property would not mean that suit itself is
pending.
31. As far as submission of Mr.Divekar that in view of the amendment to
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section 3 of Bombay City Civil Court Act, 1948 by which suit and proceedings not
exceeding Rs.1 crores in value can be received, tried and disposed of only by City
Civil Court and thus this execution application also shall be transferred to the City
Civil Court is concerned, reference to sections 37, 38, 39 of Code of Civil
Procedure, 1908, sections 3, 4A, 12, 18 of Bombay City Civil Court would be
relevant.
32. In view of provisions of section 1, 2, 3, 5, 7 of Bombay City Civil Court
(Amendment) Act, 2012 read with Government Notification dated 28 th August,
2012, this court issued notice through the Registrar (Original Side)/Prothonotary
and Senior Master to the effect that fresh filing of various suits will not be
accepted in the Registry of this court w.e.f. 1 st September 2012 and such suits
pending in the High Court not exceeding Rs.1 crores in value except the admiralty
suits, testamentary suit, parsi and intellectual property rights suits shall be
transferred to the Bombay City Civil Court under the provisions of Bombay City
Civil Court (Amendment) Act, 2012 read with Government Notification dated 28 th
August, 2012.
33. It is not in dispute that when the suit was filed, the suit was valued at
Rs.55,000/-. Suit has been decreed in terms of consent terms by which both
parties agreed that they would be entitled to 50% share each in the immoveable
property. Both parties also agreed that the suit property shall be sold by auction.
Defendant nos. 1(b) and 1(c) themselves had submitted bid of Rs.8 crores for such
property and had agreed to deposit Rs.4 crores towards 50% share of the plaintiff.
The second highest bidder had submitted a bid for Rs.7.5 crores. It is also not in
dispute that execution application was already filed by the applicant much prior to
the date of the amendment of section 3 and insertion of section 4A to the Bombay
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City Civil Court Act, 1948.
34. Supreme Court in case of Punjab National Bank, Dasuya (supra) has
interpreted section 31 of the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 and has held that in case of an execution application if the
decree was for more than Rs.10 lacs, then that was the cause of action of the
reasons for an application for execution being filed before the Tribunal. It is also
held that the term 'other proceedings' mentioned in clause 31 of the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993 would include execution
application. Supreme Court considered the fact that on the date of execution
application which was pending in the Civil Court when the said Act came into
force, amount for which execution application had been filed was over Rs.10 lacs
and thus such execution application was required to be transferred to Debt
Recovery Tribunal. Supreme Court also considered the fact that decree passed by
the Civil Court had not been executed.
35. On perusal of the section 12 of the Bombay City Civil Court Act 1948, it is
clear that High Court for any special reason and at any stage remove for trial by
itself any suit or proceeding from the City Court. Section 18 of the Bombay City
Civil Court Act 1948 provides that all suits and proceedings cognizable by the City
Court and pending in the High Court in which issues have not been settled or
evidence has not been recorded on or before the date of the coming into force of
this Act, shall be transferred to the City Civil Court and shall be heard and
disposed of by the City Civil Court. In this proceedings, decree is already passed.
Various steps have been already taken to execute the decree passed by this court.
Successful bidder including defendant nos. 1(b) and 1(c) did not pay the bid
amount in court and committed default. As a result thereof, such property has not
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been sold so far.
36. On perusal of section 37 and in particular explanation inserted by Code of
Civil Procedure (Amendment) Act, 1976 and in view of section 37(b), it is clear
that court of first instance which passed a decree if ceased to exist or to have
jurisdiction to execute it, the court which, if the suit wherein the decree was passed
was instituted at the time of making the application for the execution of the decree,
would have jurisdiction to try such suit would have jurisdiction to execute such
decree. It is not in dispute that when an application for execution of decree was
filed by the applicant in the year 2009, this court had jurisdiction to try the subject
matter of the execution application or even the subject matter of this suit. It is thus
clear that this court continues to have jurisdiction to decide the execution
application. On perusal of section 38 of the Code of Civil Procedure, 1908, it is
clear that a decree may be executed either by the court which passed it or by the
court to which it is sent for execution. In my view in view of the fact that
execution application was pending in this court when the amendment to section 3
was introduced, this court would continue to have jurisdiction to execute a decree
irrespective of the fact that the suit claimed valued in the plaint was less than Rs.1
crore. In any event the value of the claim which is subject matter of execution
application has to be considered on the date of amendment to section 3 of the
Bombay City Civil Court Act and not the valuation of the suit claimed in the plaint
which in this case is much more than Rs.one crore.
37. In my view, thus there is no substance in the submission made by
Mr.Divekar that this court has no jurisdiction to try and entertain this execution
application or the same stood transferred to Bombay City Civil Court in view of
the amendment to section 3 and in view of insertion of Section 4A to the said Act.
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38. Since the defendant nos. 1(b) and 1(c) as well as second highest bidder
failed to pay the amount though submitted bid and were found successful, the suit
property is required to be sold by public auction. At this stage, request of
defendant nos. 1(b) and 1(c) to divide the property by metes and bound and to
direct the applicant to sale only his half portion cannot be accepted. Both parties
had agreed to sale the entire property by public auction. Since sale could not be
effected due to the reasons stated aforesaid, in respect of which defendant nos. 1(b)
and 1(c) are responsible, no such suggestion can be accepted by this court. At this
stage, the entire suit property is thus required to be sold expeditiously.
39.
I, therefore, pass the following order :-
(a) Warrant of sale as provided under Order 21
Rule 64 read with Rule 11(J)(ii) of the Code of
Civil Procedure, 1908 be issued for sell of
property viz. Plot No. 28-A, admeasuring about
331.90 sq.mtrs togetherwith bungalow standing
thereon in Anand Vihar Co-operative Housing
Society Ltd., Khar (West), Mumbai - 400 052.
(b) Both parties are directed to handover
peaceful and vacant possession of their respective
portion of suit property to the auction purchaser.
(c ) Prothonotary and Senior Master is directed
to appoint officer of this court as a Commissioner
to distribute the net sell proceeds from the sell of
the suit property to the plaintiff and the defendants
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in the ratio of 50% to the plaintiff and remaining
50% to defendant nos.1(b) and 1(c).
(d) Commissioner shall sell the suit property by
public auction expeditiously and not later than
three months from the date of receipt of this order
duly authenticated by the associate of this Court.
(e) Plaintiff as well as defendant nos. 1(b) and
1(c) also are allowed to participate in the bid.
(f) After bids are received by the office of the
Commissioner, report shall be submitted to this
court for seeking confirmation of the sell to the
highest bidder.
(g) Place the execution application on board for
direction after three months.
(R.D. DHANUKA, J.)
Learned counsel appearing for the defendants seek stay of the operation of
this order which is vehemently opposed by the learned counsel appearing for the
plaintiff. Application for stay is rejected.
(R.D. DHANUKA, J.)
