Visible Chits (Maharashtra) Pvt. ... vs Mukesh Ranmal Shah And Anr And ...
2021 Latest Caselaw 3858 Bom

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

                CHAMBER SUMMONS (LODGING) NO.618 OF 2019
                                        IN
                     EXECUTION APPLICATION NO.230 OF 2018
                               ALONG WITH
                CHAMBER SUMMONS (LODGING) NO.631 OF 2019
                                    IN
                   EXECUTION APPLICATION NO.229 OF 2018

Maratha Sahakari Bank Ltd.                                    .. Applicant
  In the matter between
Visible Chits (Maharashtra) Pvt. Ltd.                         .. Org. Applicant
            Vs.
Mukesh Ranmal Shah and Anr.                                   .. Respondents


Mr. Mahesh N. Devlekar for the Applicant.
Ms. Priti Mahajan, with Mr. Yunus Vakharia, for the Original Applicant.
None for the Respondents.


                                                CORAM : A. K. MENON, J.

DATED : 2ND MARCH 2021.

P.C. :

1. By these two chamber summonses, the applicant-bank seeks setting

aside of two warrants of attachment dated 29 th August 2018 issued in respect

of Flat No.7, 3rd Floor, Jyoti Building, B.P. Cross Road No.4, opposite Devi Dayal

Road, Mulund (West), Mumbai - 400 087. The warrants of attachment were

issued at the request of the original applicant in both these execution

applications seeking to recover sums of Rs.2,73.512/- and Rs.3,58,512/-,

18-CHSL-618-2019 & CHSL-631-2019.doc Dixit along with interest thereon @ 18% p.a., respectively, pursuant to two separate

Awards dated 7th January 2017 passed in Arbitration No.011/2016 and

Arbitration No.012/2016 by the Joint Registrar of Chits, Thane under the Chit

Fund Act, 1982.

2. The original applicant was the disputant in both the cases and the

respondent nos.1 and 2 in these chamber summons were opponents. In an

attempt to execute the Awards and recover their dues, the original applicant

has moved this court and obtained warrants of attachment.

3. It is the case of the applicant-bank that it is a secured creditor and the

immovable property being the aforesaid flat had been mortgaged to it on 18 th

January 2011 under a Mortgage Deed, which is registered. In these

circumstances, the applicant-bank had initiated recovery proceedings and

obtained a recovery certificate dated 30 th May 2014, as more particularly set

out in paragraph 6 of the affidavit-in-support of the chamber summonses.

Pursuant to the recovery certificate, the applicant-bank proceeded in

execution and attached the subject flat, which was mortgage security.

4. Pursuant to orders dated 17 th January 2018 passed by the Chief

Metropolitan Magistrate (Esplanade), Mumbai, the applicant-bank took

possession of the flat, as stated above, on 15 th February 2018. When the

possession was taken, certain occupants were found therein, who were

subsequently removed from the premises with police assistance. Thereafter on

18-CHSL-618-2019 & CHSL-631-2019.doc Dixit 20th February 2018, the borrowers, i.e. respondents 1 and 2 herein, were

intimated that possession of the property has been taken. Later, it appears that

the property was broken into apparently by the 1 st respondent-borrower and

on 26th February 2018, the Recovery Officer filed a complaint with the

Mulund Police Station. Thereupon, the 1 st respondent filed a bail application

anticipating arrest. Public notices were issued in respect of this proposed sale

and auction on or about 2 nd February 2019. The auction took place and the

property is said to have been sold on 5 th March 2019. The flat has since been

sold in auction and 25% of the price has been received. The balance of the

price is not yet paid over; however, in the meantime, the original applicant

having attempted to attach the flat, it has become necessary to have warrants

of attachment cancelled and vacated so as to enable the applicant-bank to

complete transaction of sale pursuant to auction.

5. The applicant-bank has set out that it has secured copies of the

warrants from the Sheriff's office and has now learnt that the warrants of

attachment are outstanding. In view of the bank being a secured creditor, the

warrants of attachment cannot be executed as against the mortgaged

property. The applicant-bank has an outstanding claim and holds a recovery

certificate for Rs.2,20,75,361/- and further interest on the principal sum of

Rs.1,88,17,565/- and interest thereon @ 14% p.a., totaling to about Rs.3.77

crores as on date of filing these execution applications. The flat in question

has been sold for about Rs.82 lakhs and there is no residual amount that can

18-CHSL-618-2019 & CHSL-631-2019.doc Dixit be recovered pursuant to attachment of the flat under warrants issued in the

present execution proceedings.

6. Faced with this, the learned Advocate for the original applicant submits

that the applicant-bank may be directed to provide all information relating to

other assets of the respondents 1 and 2-judgment-debtors to the extent

available with the bank to enable the original applicant to proceed in

execution and recover the amounts due to the original applicant under the

Awards. Mr. Devlekar states that the applicant-bank is willing to cooperate

with the original applicant herein and share any information it has about

other properties of the respondent nos.1 and 2.

7. In view of the above contentions of the applicant-bank, the original

applicant cannot proceed in attachment of the said flat to recover the

amounts under the Awards. The Sheriff's report indicates that the warrants of

attachment were issued on 29 th August 2018. The Sheriff sought to execute

the warrants on or about 22nd October 2018 at 10:30 a.m., when the 1 st

respondent was not present. Respondent no.2 was present being the co-

borrower, but she obstructed the bailiff of the Sheriff and prevented the bailiff

from entering the premises. Hence, the warrants could not be executed and

have thus been returned. Thereupon, duplicate copies of the warrants were

affixed on a part of the suit property and the collector's board, as

contemplated. However, no further proceedings can now be initiated in view

of the fact that the property is secured to the applicant-bank.

18-CHSL-618-2019 & CHSL-631-2019.doc Dixit

8. In the circumstances, both these chamber summons are liable to be

allowed and I therefore pass the following order :-

(i) Chamber Summons (Lodging) No.618 of 2019 and

(Lodging) No.631 of 2019 are made absolute in terms of

prayer clauses (b) and (c).

(ii) The applicant-bank shall intimate the original applicant

of all known assets of the judgment debtors i.e.

respondent nos.1 and 2 herein, namely, Mukesh Ranmal

Shah and Shilpa Mukesh Shah, which are not mortgaged

to the bank, within a period of two weeks from today.

(iii) Liberty is granted to the original applicant to file an

amendment application to seek execution against other

assets of respondent nos.1 and 2.

(iv) Both the chamber summonses are disposed in the above

terms.

                                        (v)     No costs.


                                                                                               (A. K. MENON, J.)





Sneha      Digitally signed

by Sneha A. Dixit 18-CHSL-618-2019 & CHSL-631-2019.doc A. Dixit Date: 2021.03.03 16:27:07 +0530 Dixit