Execution Application No. 539 of 2012 in Suit No. 3279 of 1987. Case: Shri Anant Narayan Kajrolkar Vs Mrs. Neeta Madhukar Kajrolkar, Miss Swati Madhukar Kajrolkar, Miss Preeti Madhukar Kajrolkar and M/s. Anand Vihar Co-Op. Hsg. Society Ltd.. High Court of Bombay (India)
| Case Number | Execution Application No. 539 of 2012 in Suit No. 3279 of 1987 |
| Counsel | For Appellant: Mr. B. Colabawala and Mr. Sachin Kudalkar, i/b. Madekar & Co. and For Respondents: Mr. Y.V. Divekar, i/b. Divekar & Co. |
| Judges | R. D. Dhanuka, J. |
| Issue | Bombay City Civil Court Act, 1948 - Sections 12, 18, 3, 4, 4A; Code of Civil Procedure, 1908 (CPC) - Order XXI Rules 11(J)(ii), 64; Sections 37, 37(b), 38, 39; Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Section 31 |
| Judgement Date | October 29, 2013 |
| Court | High Court of Bombay (India) |
Judgment:
R. D. Dhanuka, J.
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The plaintiff has filed a praecipe in a pending execution application for seeking production of papers and proceedings in the execution application before this court to enable the plaintiff to request this court to direct the execution department to issue warrant of sale in respect of the suit property and to direct the office of the Commissioner of Taking Accounts to proceed to auction and sell the suit property and for appointment of a suitable person as a commissioner to distribute the net sell proceeds from the sale of the suit property. Some of the relevant facts for the purpose of deciding this prayers are as under:- On 20th December, 2007 this court passed a consent decree in Suit No. 3279 of 1987. Suit was disposed of in terms of the consent terms arrived at between the parties. In the said suit, the plaintiff had prayed for a declaration that the plaintiff was owner of the 1/2 share of the plot of land described in the plaint and also 1/2 share of the premise constructed thereon and that the original defendant no. 1, defendant nos. 1(a), 1(b) and 1(c) were the rank trespasser upon 1/2 share of the plaintiff on the suit land. Plaintiff had also prayed for peaceful, vacant possession and occupation of 1/2 portion of the suit premises. In the said consent terms, it was agreed between the plaintiff and defendant nos. 1(a) to defendant no. 1(c) to find a common developer/purchaser to develop/acquire the suit property to effectively enable the plaintiff on the one hand and defendant nos. 1(a) to 1(c) on the other hand to recover and realize their respective 50% share in the ownership and occupancy rights of the suit property. Both parties were permitted to choose to separately negotiate with such purchaser/developer within a period not exceeding six months from the date of the said decree. It was further provided that if the contract for sale/development/redevelopment of the suit property did not materialize or got concluded within a period of six months, either the plaintiff or defendant nos. 1(a) to 1(c) shall be at liberty to apply to this Court for sale of the suit property through this Court on such terms and conditions as this Court may deem fit. It was agreed that both parties shall be entitled to receive 50% of the amount so recovered/realized through such Court sale. On 2nd December, 2008 decree was drawn.
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On 9th February, 2009, plaintiff filed an execution application (539 of 2012) for issuance of warrant of sale of the suit property. On 26th February, 2009, plaintiff filed chamber summons (372 of 2009) in execution application inter alia praying that consent decree be executed and warrant of sale under Order 21 Rule 64 read with Rule 11(J)(ii) of the Code of Civil Procedure, 1908 be issued for sale of the property and for appointment of Court Commissioner for taking Accounts with a direction to proceed to auction and sell the suit property and the Commissioner be directed to distribute the net sell proceeds from the sell of the suit property.
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On 29th April, 2009, plaintiff and defendant nos. 1(b) and 1(c) filed consent minutes of the order in the said chamber summons (372 of 2009). It was agreed that the plaintiff and defendant nos. 1(b) and 1(c) shall take efforts to find common developer/purchaser to develop/purchase the suit property within nine months from 29th April, 2009 and undertook not to apply for any extension of time. It was further agreed that in the event of the failure of parties to find common developer/purchaser to develop/purchase the suit property within the time stipulated, then in that event the chamber summons shall stand, absolute in terms of prayer clauses (b), (c) and (d). Prayers (b), (c) and (d) of the said chamber summons (372 of 2009) are extracted as under:-
(b) Warrant of sale as provided under Order 21 Rule 64 read with Rule 11(J)(ii) of the Code of Civil Procedure, 1908 be issued for sell of the property viz. Plot No. 28-A, admeasuring about 331.90 sq.mtrs. together with Bungalow standing thereon in Anand Vihar Co-operative Housing Society Ltd., Khar (West), Mumbai - 400 052 (more particularly described in Exhibit A to the Affidavit in Support of the present Chamber Summons);
(c) The office of Commissioner for taking accounts be directed to proceed to auction and sell the suit property (more particularly described in Exhibit A to the Affidavit in Support of the present Chamber Summons);
(d) A suitable person be appointed as a Commissioner to distribute the net sell proceeds from the sell of the suit property (more particularly described in Exhibit A the Affidavit in Support of the present Chamber Summons).
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On 27th January, 2010 defendant nos. 1(b) and 1(c) filed chamber summons (155 of 2010) inter alia praying for extension of time to find common purchaser/developer by one year from 29th January, 2010. By an order dated 4th October, 2010, the said Chamber Summons (155 of 2010) was disposed of by this court. This court accepted the request made by both parties that property be sold by calling bids from the members of the public by an advertisement in newspaper to the effect that the suit property be sold by auction. Defendants were permitted to put in their offer for the purpose of buying of share of the plaintiff. By the said order, the said chamber summons was disposed of. The matter was however directed to appear on 18th November, 2010 directing the Prothonotary and Senior Master to produce in the Court all the sealed envelopes so as to decide as to who was the highest bidder and matter was directed to be placed on board for direction. Pursuant to the notice issued in newspaper, 10 sealed packets were received from the members of the public. By an order dated 24th November, 2010, this court declared defendant nos. 1(b) and 1(c) as highest bidder and one Mr. Ashish Mohite was treated as second highest bidder.
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By an order dated 14th December, 2010 passed in the execution application, this court directed defendant nos. 1(b) and 1(c) to deposit Rs. 2 crores (out of Rs. 4 crores) on or before 5th February, 2011 being 50% of the total consideration payable by the defendant nos. 1(b) and 1(c) to the plaintiff for buying plaintiff's share. Defendant nos. 1(b) and 1(c) challenged the said order on 14th December, 2010 before the Division Bench by filing appeal (L) No. 27 of 2011. By an order dated 31st January, 2011, Division Bench of this Court extended time to deposit the said amount of Rs. 2 crores. Rs. 1 crores was directed to be deposited on or before 7th February, 2011 and remaining amount was directed to be deposited on or before 21st February, 2011. Defendant nos. 1(b) and 1(c) however did not deposit the said amount. By an order dated 1st March, 2011, this court gave an opportunity to the second highest bidder I.e. Mr. Ashish Mohite to consider on his bid. Mr. Ashish Mohite accepted to deposit Rs. Seven crores within the time specified. Though extension was granted to Mr. Ashish Mohite to deposit the said amount, Mr. Ashish Mohite did not deposit any amount in this court. On 19th June, 2013, the plaintiff filed an affidavit in execution application contending that in view of the default committed by defendant nos. 1(b) and 1(c) and Mr. Ashish Mohite and in view of the failure of the parties to find a common developer/purchaser to develop/purchase the suit property within the time stipulated, the chamber summons No. 372 of 2009 stood operative and is made absolute in terms of prayers (b), (c) and (d) of the Chamber Summons No. 372 of 2009. It is the case of the plaintiff that defendants are delaying the execution of the decree and thus seeks further order in compliance with prayer clauses (b), (c) and (d) of the Chamber Summons. This application is opposed by defendant nos. 1(b) and 1(c) by filing affidavit in reply.
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On perusal of the affidavit in reply filed by the defendants and on hearing the arguments advanced by the learned counsel, following issues would arise for consideration of this court:-
(a) Whether reliefs are claimed by the applicant on the praecipe filed by the applicant or in the existing execution application?
(b) Whether prayers in Chamber Summons No. 372 of 2009 have become infructous in view of the order passed by this court on 4th October, 2010 in Chamber Summons No. 155 of 2010?
(c) Whether execution application is required to be transferred to City Civil Court at Bombay and this court has no jurisdiction to entertain the present execution application?
(d) Whether notice to the society is necessary before any order is passed by this court in this execution application?
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Mr. Divekar, learned counsel appearing for defendants submit that the applicant had filed chamber summons for seeking similar reliefs under the provisions of Bombay High Court (OS) Rules. No such relief as prayed in the present proceedings can be granted by this court on praecipe. It is submitted that affidavit filed alongwith praecipe cannot be construed as an application required to be filed under the provisions of High Court Rules. No order thus can be passed by this court on praecipe and affidavit.
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Mr. Divekar submits that society was defendant no. 2 in the suit and was heard by this court when order was passed on 24th November, 2010. It is submitted that since suit property is situated in the society and if this property is sold to an outsider who would have to become a member of the society, such member would have to follow the rules and bye-laws of the society. It is submitted that defendant no. 2 society was constituted for the purpose of benefits of members of minority community, no order can be...
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