Bombay High Court
Momin Zulfikar Kasam vs Anselm John Ferreira And Anr on 5 August, 2024
2024:BHC-AS:31325
Gayatri Shimpi 9-WP-10613-2024.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10613 OF 2024
Momin Zulfikar Kasam ....Petitioner
V/s.
Dhondiba Vitthal Patil and Anr. ....Respondents
WITH
WRIT PETITION NO.10623 OF 2024
Momin Zulfikar Kasam ....Petitioner
V/s.
Mustaf Abbas Kureshi and Anr. ....Respondents
WITH
WRIT PETITION NO.10622 OF 2024
Momin Zulfikar Kasam ....Petitioner
V/s.
Mohan Rajaram Jadhav and Anr. ....Respondents
WITH
WRIT PETITION NO.10620 OF 2024
Momin Zulfikar Kasam ....Petitioner
V/s.
Lourdes Pais and Anr. ....Respondents
WITH
WRIT PETITION NO.10618 OF 2024
Momin Zulfikar Kasam ....Petitioner
V/s.
K.A. Govindraj
(deleted since deceased)
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1(a) Smt. Merry Govindraj and Ors. ....Respondents
WITH
WRIT PETITION NO.10617 OF 2024
Momin Zulfikar Kasam ....Petitioner
V/s.
Smt. Indira Tolasingh Bhandari and
Anr. ....Respondents
WITH
WRIT PETITION NO.10615 OF 2024
Momin Zulfikar Kasam ....Petitioner
V/s.
Dinanath Narayan Shetye and Anr. ....Respondents
WITH
WRIT PETITION NO.10625 OF 2024
Momin Zulfikar Kasam ....Petitioner
V/s.
Narayan Govind Naik and Anr. ....Respondents
WITH
WRIT PETITION NO.10626 OF 2024
Momin Zulfikar Kasam ....Petitioner
V/s.
Ramdas Parsharam Patil and Anr. ....Respondents
WITH
WRIT PETITION NO.10628 OF 2024
Momin Zulfikar Kasam ....Petitioner
V/s.
Raymond Caitan Dcruz and Anr. ....Respondents
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WITH
WRIT PETITION NO.10630 OF 2024
Momin Zulfikar Kasam ....Petitioner
V/s.
Sudesh Mukund Patkar and Anr. ....Respondents
WITH
WRIT PETITION NO.10633 OF 2024
Momin Zulfikar Kasam ....Petitioner
V/s.
Ajit Dhondu Karbhari and Anr. ....Respondents
WITH
WRIT PETITION NO.10631 OF 2024
Momin Zulfikar Kasam ....Petitioner
V/s.
Anselm John Ferreira and Anr. ....Respondents
________________________________________________
Mr. Pradeep Thorat i/b. Ms Aditi Naikare for the Petitioner in all
Petitions.
Mr. Abhinav Chandrachud with Ms. Jasmin Purani & Mr. Aman Arora
i/b Agarwal & Dhanuka Legal Advocates, for Respondent No.1 in WP
No.10613/2024.
Mr. Aman Kacheria with Ms. Jasmin Purani & Mr. Aman Arora i/b
Agarwal & Dhanuka Legal Advocates, for Respondent No.1 in WP
No.10623/2024, WP No.10622/2024, WP No.10620/2024, WP
No.10618/2024, WP No.10615/202, WP No.10625/2024, WP
No.10626/2024, WP No.10630/2024 & WP No.10631/2024.
Mr. Pranil K. Sonawane with Mr. Raj Chourasia & Mr. Deepak H., for
Respondent No. 1 In WP No.10617/2024 and 10628/2024.
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Ms Nikita Vardhan i/b. M/s. Kanga and Co. for Respondent No.2 in all
Petitions.
________________________________________________
__ CORAM : SANDEEP V. MARNE, J.
Date : 5 AUGUST 2024.
P.C. :
1) Ms. Vardhan is permitted to file Vakalatnama on behalf of the
Respondent No.2 since name of the Company Aventis Pharma Ltd.
appears to have been changed to M/s. Sanofi India Ltd.
2) In these Petitions, orders passed by the Appellate Bench of the
Small Causes Court on 6 May 2024 and 4 July 2024 are under challenge.
3) It appears that, similar order was passed on 6 May 2024 by the
Appellate Bench of the Small Causes Court in the case of Momin Zulfikar
Kasam Vs. Ajay Balkrishna Durve, which was subject matter of challenge
before this Court in Writ Petition No.9256 of 2024. By allowing the said
Writ Petition, this Court has set aside the order dated 6 May 2024 passed
by the Appellate Bench of Small Causes Court.
4) In that view of the matter, the issues involved in the present
Petitions are squarely covered by the judgment of this Court dated 9 July
2024 in Momin Zulfikar Kasam vs. Ajay Balkrishna Durve 1 .
5) It appears that the only additional issue that appears to have been
decided by the Appellate Bench in its order dated 4 July 2024 is about
Writ Petition No. 9256 of 2024.
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requirement of issuance of notice to the transferee. It appears that the
Appellate Bench has taken note of the first proviso to Rule 16 Order XXI
of the Code of Civil Procedure, 1908 which reads thus :-
" Provided that, where the decree, or such interest as
aforesaid, has been transferred by assignment, notice of
such application shall be given to the transferor and the
judgment debtor, and the decree shall not be executed
until the Court has heard their objections (if any) to its
execution".
6) Mr. Thorat would submit that the first proviso to Rule 16 would
apply essentially when there is an assignment of decree and would have no
application in case where there is a conveyance within the meaning of
Explanation to Rule 16.
7) Dr. Chandrachud would on the other hand submit that the first
proviso to Rule 16 not only covers transfer of assignment of decree but
also an interest in the property. Rule 16 essentially applies to transfer of
decree by assignment in writing and in that sense, the first proviso would
obviously apply to transfer of decree by assignment. As against this, the
Explanation added by way of amendment to Rule 16 covers situation
which does not encompass transfer of decree by assignment but involve
transfer of rights in the property. In my view therefore, in case of transfer
of rights in the property, first proviso to Rule 16 of order XXI would have
no application. To this extent again, the order passed by the Appellate
Bench on 4 July 2024 suffers from an obvious error.
8) Dr. Chandrachud would highlight two more aspects while
appearing for Respondent No.1 in Writ Petition No.10613 of 2024. Firstly,
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he would submit that the Indenture of Conveyance dated 13 April 2023
refers to a recital under which the name of Avantis Pharma Ltd. is shown
to have been changed to Sanofi India Ltd, who is the Vendor in the said
Indenture. He would submit that as of now there is no material available
on record to ascertain as to whether there is only change in the name or
there has been any merger or acquisition. He would therefore submit that
presence of the transferee company in the execution proceedings is
therefore necessary. In my view, the submission appears to be too
speculative in absence of any prima facie material to show that the case
does not involve simple change of name of company from Avantis Pharma
Ltd. to Sanofi India Ltd. The submission therefore deserves to be
rejected.
9) The second submission of Dr. Chandrachud is about possible non-
exclusion of the flat occupied by the Respondent in the Indenture of
conveyance dated 13 April 2023. However, perusal of the fourth schedule
to the Indenture describing the unsold flats in buildings AB, CD, EF, and
wing - H shows that Flat No.D-6 occupied by Respondent Mr. Dhondiba
Vitthal Patil is clearly reflected in the Indenture. Thus, the flat occupied
by Respondent Dhondiba Vitthal Patil is clearly assigned by the Indenture
in question. Therefore, second submission of Dr. Chandrachud also does
not merit any consideration.
10) Mr. Sonawane the learned counsel appearing for Respondent in
Writ Petition Nos. 10617 and 10628 of 2024 would additionally submit
that order dated 19 April 2024 has also been challenged in the Revision
Petitions filed by his clients whereas this Court has held in Judgment
dated 9 July 2024 that there was no challenge to the orders dated 19 April
2024 in the Petition decided by this Court. In my view, this Court has
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decided twin issues of requirement of assignment of decree to enable
purchaser to seek execution thereof and the principles of res judicata
applicable in various stages of execution proceedings. In my view
therefore, mere inclusion of challenge to the order dated 19 April 2024 in
the revision filed before the Appellate Bench would not be a reason for
this Court to take the different view than the one taken in the Judgment
dated 9 July 2024.
11) Mr. Sonawane would also submit that a Review Petition has been
filed seeking review of order dated 9 July 2024. This again cannot be a
reason for this Court not to decide the present Petitions by following the
Judgment dated 9 July 2024.
12) After considering the overall conspectus of the case, I am of the
view that since the issues involved in the present Petitions are squarely
covered by the Judgment in Momin Zulfikar Kasam vs. Ajay Balkrishna
Durve (supra), nothing further remains to be adjudicated in these
Petitions.
13) Following the reasons adopted in "judgment of Momin Zulfikar
Kasam vs. Ajay Balkrishna Durve (supra), the orders dated 6 May 2024
and 4 July 2024 passed by the Appellate Bench are set aside. Writ
Petitions are allowed in above terms.
14) After the order is pronounced, Dr. Chandrachud, Mr. Sonawane
and Mr. Kacheria would pray for stay of the operation of the order for a
period of 8 weeks. The request is opposed by Mr. Thorat. Considering the
nature of findings recorded in the Judgment dated 9 July 2024, the
request for stay is rejected.
[SANDEEP V. MARNE, J.]
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