Bombay High Court
Sunita Banerjee vs Sunchan Securities Ltd. And ... on 24 August, 2015
Bench: R.S. Dalvi
jsn 1 CHS (L.) No.1807_1808_1811_2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS (L) NO.1807 OF 2014
IN
EXECUTION APPLICATION NO.1020 OF 2011
IN
ARBITRATION MATTER NO.CM/M-0080/2009 OF 2009
Mrs. Rajeshwari Vinod Singh & Anr. ... Third party
Claimants
In the matter between
Mrs. Kusum Arunkumar Biswas
ig ... Claimant /
Applicant
Vs.
Sunchan Securities Ltd. ... Respondent
ALONGWITH
CHAMBER SUMMONS (L) NO.1808 OF 2014
IN
EXECUTION APPLICATION NO.1022 OF 2011
IN
ARBITRATION MATTER NO.CM/M-0082/2009 OF 2009
Mrs. Rajeshwari Vinod Singh & Anr. ... Third party
Claimants
In the matter between
Mrs. Sunita Banerjee ... Claimant /
Applicant
Vs.
Sunchan Securities Ltd. ... Respondent
ALONGWITH
CHAMBER SUMMONS (L) NO.1811 OF 2014
IN
EXECUTION APPLICATION NO.1019 OF 2011
IN
ARBITRATION MATTER NO.CM/M-0079/2009 OF 2009
::: Downloaded on - 24/08/2015 23:57:14 :::
jsn 2 CHS (L.) No.1807_1808_1811_2014
Mrs. Rajeshwari Vinod Singh & Anr. ... Third party
Claimants
In the matter between
Mr. Swapan Kumar Biswas ... Claimant /
Applicant
Vs.
Sunchan Securities Ltd. ... Respondent
ALONGWITH
CHAMBER SUMMONS (L) NO.1814 OF 2014
IN
EXECUTION APPLICATION NO.1021 OF 2011
IN
ARBITRATION MATTER NO.CM/M-0081/2009 OF 2009
Mrs. Rajeshwari Vinod Singh & Anr.
ig ... Third party
Claimants
In the matter between
Mr. Arun Kumar Biswas ... Claimant /
Applicant
Vs.
Sunchan Securities Ltd. ... Respondent
Mr. H. Toor, Adv. a/w. Ms. Swati Sawant, Adv. i/b. S B Legal for
Third party claimants.
Mr. Aditya Thakkar, Adv. a/w. Mr. Arjun K., Adv. i/b. Dastur Kalambi
& Associate for applicant in execution.
CORAM : MRS. ROSHAN DALVI, J.
DATE OF RESERVING THE ORDER : 29th July, 2015
DATE OF PRONOUNCING THE ORDER : 24th August, 2015
O R D E R
1. The applicants have taken out these Chamber Summonses
for raising an attachment over the premises to which they claim title.
The applicants claimed to have purchased the attached premises from
one V R G Securities P. Ltd. (VRG) under the registered deed of
jsn 3 CHS (L.) No.1807_1808_1811_2014
transfer dated 5th May, 2011. The applicants claim that they have no
concerned with the award debtor.
2. The applicants have produced the share certificate of the
society in which the attached flat is situate. The share certificate
shows the transfer in favour of the applicants which is in favour of
VRG from one Kanchan Sunil Mansinghani (Kanchan) who was one of
the directors of the award debtor company.
3. Hence the award creditor would claim that the attached
flat actually belonged to the award debtor and was shown to be in the
name of its director.
4. It has been argued on behalf of the award creditor that
even in interim proceeding in the arbitration under Section 9 of the
Arbitration and Conciliation Act, 1996 an injunction order came to be
passed in respect of the aforesaid flat. The award debtor had then not
contended that the flat did not belong to the award debtor. They
have relied upon other proceedings when the award debtor accepted
the premises that the attached flat would belong to it.
5. However, the share certificate of the society which is
produced in the original issued on 21st February, 1976 shows itself to
be a very authentic document. It is a document more than 30 years
old. It would carry a presumption of its correctness. It is indeed
shown to be on a yellow, partly torn paper. It shows the entry in the
name of Kanchan on 30th June, 1994. Hence Kanchan purchased the
attached premises on or before that date.
jsn 4 CHS (L.) No.1807_1808_1811_2014
6. The ROC records produced before the Court shows that the
award debtor company is incorporated on 7 th December, 1994. The
award debtor company itself was not even incorporated on the date of
the purchase of the attached premises. Since Kanchan purchased the
attached premises prior to the incorporation of the award debtor
company, whatever be the earlier proceedings against the award
debtor, it cannot be seen or taken that the attached premises could
belong to the award debtor at any time.
7. The premises distinctly shown to be belonging to one of
the directors of the award debtor cannot be attached in execution of
the award against the award debtor.
8. Kanchan is shown to have resigned as director. Form 32
has been filed. The award debtor would contend that the resignation
itself is feigned and made with a view to defeat creditors because
Kanchan owns 99.99% of the share capital of the company and has
continued to act as director even after alleged date of her resignation.
Even if that is shown, the attached flat cannot be taken to be the
property of the award debtor, despite any dubious design of its
director.
9. The attached premises initially belonging to Kanchan has
been seen to be transferred to VRG who has in turn transfer it to
applicants. In view of the aforesaid facts the cases cited by the parties
to show the lifting of the corporate veil of a company or the Court
taking into account the earlier transfers which may show the title of
the company need not be adverted to.
jsn 5 CHS (L.) No.1807_1808_1811_2014
10. The Chamber Summonses are granted. The attachment
over the attached premises in Hiren Light Industrial Premises Co-Op.
Soc. Ltd., Mogul Lane, Mahim, Mumbai 400 016 is raised. The award
creditor shall be entitled to proceed in execution against any other
property of the award debtor.
( ROSHAN DALVI, J. )
