Kotak Mahindra Bank Ltd vs Himesh Harish Dave And Ors
2021 Latest Caselaw 9501 Bom

                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   ORDINARY ORIGINAL CIVIL JURISDICTION


                                  EXECUTION APPLICATION NO.353 OF 2008


             Kotak Mahindra Bank Ltd.                                .. Applicant
                         v/s.
             Himesh H. Dave & Anr.                                   .. Respondents

                                                     WITH
                                    CHAMBER SUMMONS NO.599 OF 2009


             Kotak Mahindra Bank Ltd.                    .. Decree Holder /Org.Claimant
                         v/s.
             Himesh H. Dave & Anr.                       ..Respondents/Judgment Debtors
                          And
             Ripul Dilip Shah & Ors.                                 .. Applicants



             Mr. M.B. Kale for the applicant.

             Mr. Omar Shaikh for the judgment debtor.
             Mr. Chandrakant Chavan for the applicants in CHS/599/2009.


                                                         CORAM : A. K. MENON, J.

DATED : 19TH JULY, 2021.

(THROUGH VIDEO CONFERENCE) P.C. :

1. The applicant seeks to withdraw this Execution Application. It is

the case of the applicant that all dues have been paid and that the Digitally signed by SANDHYA SANDHYA BHAGU BHAGU WADHWA

WADHWA Date:

2021.07.20 17:15:56 +0530

1.exa-353-08.doc wadhwa applicant has no claim against the flat presently claimed by Ripul

Dilip Shah and others who are applicants in Chamber Summons

no.599 of 2009 in the above Execution Application.

2. Mr. Chavan representing the applicants in the Chamber Summons

states that his clients have purchased the mortgaged property over

which the bank had a claim. The judgment debtor had obtained

other loans on the same property and pursuant to various earlier

orders the original documents are now deposited in this court.

3. Mr. Kale on behalf of the applicant-bank seeks to withdraw this

Execution Application since the bank has received its dues. He

states that the bank has issued a No Dues Certificate to the

judgment debtors. Mr. Chavan has confirms this fact and he states

that as the purchaser of the property, his clients are now entitled

to receive all original documents of title which were lying with

the bank and which are deposited in this court. He confirms that

having taken inspection and verified the original documents on

behalf of his clients and he submits that since the Execution

Application is being withdrawn, the applicants in Chamber

Summons no.599 of 2009 may be permitted to collect and retain

all documents of title pertaining to the flat in question viz. 105,

1.exa-353-08.doc wadhwa Wing 'F' 1st floor, Kamla Vihar E & F CHS Ltd. Mahavir Nagar,

Kandivali (W), Mumbai-67, along with the share certificate

issued by the society. This he submits that will ensure that his

clients are protected.

4. Mr. Shaikh on behalf of the judgment debtors has no objection of

this course of action. He waives rights of his clients to receive the

original documents from the bank. He submits that the original

title deeds may be handed over by the Prothonotary and Senior

Master to Mr. Chavan's clients and that as far as the bank is

concerned, he has no objection in not having received the original

documents back from the bank. Mr. Kale on behalf of the

applicant has no objection to this course of action.

5. Accordingly I pass the following order;

(i) The applicants in chamber summons no.599 of 2009 will

be entitled to collect the original documents of title

deposited with the Prothonotary and Senior Master by

Kotak Mahindra Bank pursuant to order dated 2 nd August,

2011.

(ii) The Prothonotary and Senior Master shall accordingly

handover all the documents to the applicants in Chamber

1.exa-353-08.doc wadhwa Summons no.599 of 2009.

(iii) The applicant bank is directed to issue a letter to the Kamla

Vihar Co-operative Housing Society confirming that the

bank has no claim against the subject flat or the shares. Let

this be done within two weeks from today.

(iv) Subject to the above, the judgment debtors statement made

through their counsel that they have no claim against the

subject flat or Mr. Chavan's client, is accepted.

(v) Subject to the above, Execution Application no.353 of 2008

is disposed.

(vi) In view of the disposal of the Execution Application,

Chamber Summons will not survive. Chamber Summons is

also disposed in the above terms.

(vii) Interim Applications and Notices of Motion pending, if any,

shall also stand disposed.

(A. K. MENON, J.)

1.exa-353-08.doc wadhwa