Talsibhai Monpara vs Shubh Enterprise And 4 Ors
2021 Latest Caselaw 14766 Bom

                                                            40-GRN-56-18.doc

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

                         GARNISHEE NOTICE NO. 56 OF 2018
                                      WITH
                         GARNISHEE NOTICE NO. 55 OF 2018
                                        IN
         COMMERCIAL EXECUTION APPLICATION NO. 50 OF 2017
                              WITH
             COMMERCIAL CHAMBER SUMMONS NO. 80 OF 2017
                                        IN
         COMMERCIAL EXECUTION APPLICATION NO. 50 OF 2017


     Talsibhai R. Monpara                                ...Plaintiff

             Versus

     Shubh Enterprise & Ors.                             ...Defendants

                                      WITH
             COMMERCIAL CHAMBER SUMMONS NO. 81 OF 2017
                                        IN
         COMMERCIAL EXECUTION APPLICATION NO. 39 OF 2017


     Bimal B. Shah                                    ...Applicant/
                                                      Plaintiff

             Versus

     M/s. Shubh Enterprise & Ors.                     ...Respondents

                                     ----------
     Mr. Karl Shroff a/w Ms. Khyati Pandit i/by Dhru & Co. for the
     Applicant.
     Mr. Anil D'Souza for the Garnishee.


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                                                           40-GRN-56-18.doc

                                    ----------

                                     CORAM :         R.I. CHAGLA J

                                    DATE         :   8 October 2021

ORDER :

1. Heard learned Counsel for the parties.

2. Garnishee Notice No. 56 of 2018 is not on board.

Taken on board.

3. By an order dated 22nd March 2021, this Court had

noted that the Garnishee Notice had been issued and served

upon the Respondent for both the matters i.e. Commercial

Execution Applications No. 50 of 2017 and 39 of 2017.

4. On 22nd March 2021, the Garnishee Notice was not

before this Court and accordingly, the Chamber Summons

together with Garnishee Notices No. 55 of 2018 and 56 of 2018

was directed to be listed on the next date.

5. Thereafter, matter has come up today.

40-GRN-56-18.doc

6. Garnishee Notices No. 56 of 2018 is on record and

from the Garnishee Notice, it appears that the dispute is

concerning a sum of Rs. 48 Crores which is the balance

consideration towards the sale deed dated 31st December 2013.

In respect of which notice has been issued for Rs.

15,16,30,008/- to be attached in the hands of Garnishee under

warrant of attachment dated 26th April 2017 issued under

Order XXI Rule 46 of the Code of Civil Procedure, 1908 in

execution of the decree dated 7th March 2017 passed in the

Summary Suit No. 720 of 2014 against the Defendants thereto

so as to satisfy the decree in execution.

7. It is the contention of the learned Counsel for the

Applicant/original Plaintiff that the sum of Rs. 48 Crores is the

balance consideration which is due and payable to the

Judgment-Debtor towards the sale deed dated 31st December

2013. The learned Counsel for the Garnishee states that the

sum of Rs. 48 Crores was to be retained by the Garnishee to

clear any third party claims and demands in relation to the

said property and project. It is the further contention of the

learned Counsel for the Garnishee that only a consideration

amount of Rs..35 Crores was to be paid to the Judgment-Debtor

40-GRN-56-18.doc

and that has already been paid by the Garnishee. The

declaration dated 31st December 2013 has been referred to

which confrmed that Rs. 35 Crores was paid in full to the

Judgment-Debtor and the Judgment-Debtor would have no

claims against the Garnishee.

8. Learned Counsel appearing for the Garnishee has

further referred to Order 21 Rule 46C of the Code of Civil

Procedure, 1908 which provides that where the Garnishee

disputes its liability, the court may order that any issue or

question necessary for the determination of the liability shall

be tried as if it were an issue in a suit, and upon the

determination of such issue shall make such order or orders as

it deems ft. He has submitted that the dispute has been raised

by the Garnishee that no further amount is to be paid to the

Judgment-Debtor which can be attached in the hands of the

Garnishee by the Applicant.

9. Learned Counsel for the Applicant/original Plaintiff

has disputed this position and has contended that the balance

amount was payable to the Judgment-Debtor and can be

attached in the hands of the Garnishee.

40-GRN-56-18.doc

10. It would therefore, be necessary to consider

the preliminary objection raised by the learned Counsel for the

Garnishee as to whether there is a disputed question for Order

XXI Rule 46C of the CPC to apply. Garnishee Notices No. 55 of

2018 and 56 of 2018 shall be listed before this Court on 12th

October 2021 for hearing.

11. This Court has not expressed any observation

on merits of the Garnishee Notice.

12. It is clear from the order dated 2nd May 2017

that ad-interim injunction against the Garnishee from paying

the Judgment-Debtor an amount of Rs. 15,16,30,008/- has been

continued by the order dated 2nd May 2017 until such time as

the Chamber Summons fled by the Judgment Creditor is fnally

heard. This has been in operation from February 2015 and

continued by order dated 2nd May 2017. In view thereof,

prayer clause (b) of the above Chamber Summons shall

continue till further orders.

13. The Applicant/original Plaintiff is granted

40-GRN-56-18.doc

leave to fle Affdavit in Rejoinder in the Garnishee Notices No.

55 of 2018 and 56 of 2018 with the Registry on or before 11th

October 2021.

14. Stand over to 12th October 2021 for hearing

before the regular Court.

[R.I. CHAGLA J.]