Bombay High Court
Mukesh Nenshi Gala vs Anita Rajinder Rishi And 2 Ors on 3 August, 2022
Bench: G.S. Patel, Gauri Godse
904-COMAPL-24554-2021 IN CHSCD-35-2020.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL APPELLATE DIVISION
COMMERCIAL APPEAL (L) NO. 24554 OF 2021
IN
COMM DIVISION CHAMBER SUMMONS NO. 35 OF 2020
IN
COMM EXECUTION APPLICATION NO. 252 OF 2019
IN
SUMMONS FOR JUDGMENT NO. 39 OF 2017
IN
COMM SUMMARY SUIT NO. 140 OF 2017
Mukesh N Gala ...Appellant
Versus
Anita R Rishi & Ors ...Respondents
Mr Shreepad Murthy, with Abhishek Patil & Rishab Jain, i/b MDP
& Partners, for the Appellant.
Mr Prathamesh Kamat, with Nakul Jain, Akash Menon & Beney
Rama Krishnan, i/b Akash Menon, for Respondent No.1.
ARUN
RAMCHNDRA
CORAM G.S. Patel &
SANKPAL
Gauri Godse, JJ.
Digitally signed by
ARUN
RAMCHNDRA
DATED: 3rd August 2022
SANKPAL
Date: 2022.08.04
10:11:38 +0530 PC:-
3rd August 2022
904-COMAPL-24554-2021 IN CHSCD-35-2020.DOC
1. The Appeal is directed against an order dated 7th October
2021 passed by the learned Single Judge (Mr Justice AK Menon)
dismissing the Appellant's Chamber Summons No. 35 of 2020. The
Appellant framed this Chamber Summons as one under Order XXI
Rule 58 of the Code of Civil Procedure 1908 ("CPC") to raise
attachment levied by the original Plaintiff (Anita Rishi) in execution
of a money decree she obtained against the Defendant, judgment
debtor, Deepak Pandurang Pawar. Anita put the decree into
execution inter alia by levying attachment on an immovable property
at Mahim, Mumbai, on which there is a structure.
2. The Appellant, Mukesh Gala, claims that he had a Joint
Venture Agreement ("JVA") of 20th March 2014 through his
proprietary concern Navkar Infra Projects with the Defendant,
Deepak (through is proprietorship firm Dhanlaxmi Enterprises).
3. Before the learned Single Judge, Mr Murthy on behalf of the
Mukesh Gala claimed that the JVA entitled his client to develop the
Mahim property, sell developed units, obligated him to share of a
percentage of the profits with Deepak and then required him to form
a society of flat purchasers ensuring conveyance of title to the
society.
4. It is on this basis that Mr Murthy contended that Gala had an
interest in the property and was entitled to have the attachment
raised.
3rd August 2022
904-COMAPL-24554-2021 IN CHSCD-35-2020.DOC
5. Obviously, under Order XXI Rule 58, all questions, including
as to title, would have to be decided in the execution proceedings.
6. The learned Single Judge held that Gala did not become and
never could become the owner of the property even under the JVA.
Mr Justice Menon held that Gala's obligation was to invest money
in the project. The ownership continued with the Defendant, Pawar.
Although Gala may have had a right to develop (which Mr Justice
Menon called "an interest in developing" ) that did not translate to
ownership or title without an express grant in favour of the
Appellant.
7. Before Mr Justice Menon the decision of the Supreme Court
in Sushil Kumar Agarwal v Meenakshi Sadhu & Ors 1 was cited.
Paragraph 18 says that where there is pure construction contract, a
contractor has no interest in even the land or the construction. But
there are other categories of development agreements that may
grant developer a valuable right either in the property or in the
constructed area. The terms of these agreements are determinative
to see whether there is any interest in the land and, if so, to what
extent and of what kind.
8. This takes us to the JVA, a copy of which is at page 76.
Clause 7 of the JVA says thus:
1 (2019) 2 SCC 241.
3rd August 2022
904-COMAPL-24554-2021 IN CHSCD-35-2020.DOC
"7. No Transfer of Interest in Property:
There is no transfer or assignment in respect of the said
Property, as the Developer shall bring required money for
the development of the same, and the existing ownership
rights shall always remain with the Owner."
9. Mr Murthy endeavours to draw advantage from the wording
of Clause 8 regarding the capital of the joint venture project. But
this will not and cannot possibly detract from the unambiguous
terms of Clause 7. Whether one looks at this from the perspective of
the decision of the Supreme Court in Sushil Kumar Agarwal or even
otherwise, it is clear that Gala had no interest in the land. He could
develop it. He might still be able to develop it. But this might only
require him to get those rights from whoever becomes the owner
after execution. There are other possibilities that also arise.
10. We believe the learned Single Judge was absolutely correct in
saying that no ground was made out for raising the attachment at
Gala's instance.
11. We see no infirmity in the impugned order. The Appeal is
dismissed. No costs.
12. Mr Kamath was initially persuaded to raise a primary
objection as to the maintainability of the Appeal. After a few days of
reflection, he does not press the point.
3rd August 2022
904-COMAPL-24554-2021 IN CHSCD-35-2020.DOC
13. It goes without saying that rights of the developer under
Order XXI Rule 58 and particularly sub-Rule (5) remain unaffected
by this order.
14. Mr Murthy submits that liberty may be reserved to the
Appellant to file a civil suit. The liberty is merely this, that the
Appellant can take such proceedings as is entitled in law to establish
his rights. All contentions are specifically kept open.
15. Mr Murthy seeks continuance of an interim protection for a
short while. We are unable to accede to this request for the reasons
set out above.
(Gauri Godse, J) (G. S. Patel, J)
3rd August 2022
