Chamber Summons No. 395 of 2004 in Execution Application No. 267 of 2003 in Summons For Judgment No. 1266 of 2001 in Summary Suit No. 1089 of 1999 and Chamber Summons No. 1195 of 2004 in Execution Application No. 267 of 2003 in Summons For Judgment No. 1266 of 2001 in Summary Suit No. 1089 of 1999. Case: Ila Rohit Sanghvi and Ors. Vs Pankaj Champaklal Gandhi and Ors.. Bombay High Court

Case Number:Chamber Summons No. 395 of 2004 in Execution Application No. 267 of 2003 in Summons For Judgment No. 1266 of 2001 in Summary Suit No. 1089 of 1999 and Chamber Summons No. 1195 of 2004 in Execution Application No. 267 of 2003 in Summons For Judgment No. 1266 of 2001 in Summary Suit No. 1089 of 1999
Party Name:Ila Rohit Sanghvi and Ors. Vs Pankaj Champaklal Gandhi and Ors.
Counsel:For Respondents: Shyam Mehta, Bhavik Manek and Udayan Shah, Advs.
Judges:S. C. Gupte, J.
Issue:Code of Civil Procedure, 1908 (CPC) - Order XXI Rule 97; Income Tax Act, 1961 - Sections 143(1), 143(1)(a); Presidency-towns Insolvency Act, 1909 - Section 55; Specific Relief Act, 1963 - Section 6; Wealth-tax Act, 1957 - Sections 16(2), 17, 30
Judgement Date:February 24, 2016
Court:Bombay High Court
 
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Order:

S. C. Gupte, J.

  1. These two Chamber Summonses concern the right of an obstructionist to a property attached in execution. Chamber Summons No. 395 of 2004 is taken out by the decree-holder for removal of obstruction to the execution of a money decree passed in a Summary Suit and for delivery of possession of the flat purportedly owned by the judgment debtor to the receiver in execution, whilst the other chamber summons, namely, chamber summons No. 1195 of 2004, is taken out by the obstructionist for removal of attachment in respect of the suit flat. The obstructionist is the wife of the original Defendant and judgment debtor. The two chamber summonses involve essentially the right of the obstructionist to raise an obstruction to the attachment.

  2. The case of the obstructionist may be briefly narrated as follows (The reference to 'Plaintiff' includes his predecessor in title):

    (i) Prior to 1984, that is, prior to the Defendant's marriage to the obstructionist, the former was part of an HUF comprising of his father, mother, himself and his three brothers. On 4 May 1984, the Defendant was married to the obstructionist. In the following two years two sons were born to them.

    (ii) On 16 April 1991, the Defendant purchased the suit flat under an agreement for sale. On 13 November 1991, the share certificate in respect of the flat was transferred in the name of the Defendant.

    (iii) On 30 January 1995, a wealth tax return was filed by the Defendant in respect of assessment year 1992-93 (corresponding to previous year 1991-92) showing the suit flat as HUF property. Filing of the return was followed by notices from the Wealth Tax Department raising certain requisitions, which were responded to by the Defendant through his Chartered Accountant. On 31 March 1995, an assessment order for the assessment year 1992-93 was passed in respect of the Defendant's HUF. Pursuant to a notice under Section 143(1)(a) of the Income Tax Act, tax was duly paid by the HUF for the assessment year. This was followed by further returns, assessments, intimations and payments of tax for the following assessment years.

    (iv) In the meantime, on 9 February 1995 a loan of Rs. 5 Lac appears to have been advanced by the Plaintiff to the Defendant. By May 1996, the loan was outstanding.

    (v) It is the case of the obstructionist that on 13 May 1996, the Plaintiff illegally entered into the suit flat and committed criminal trespass, forcibly dispossessing the Defendant's wife from the suit flat and occupied the suit flat along with his family. Simultaneously, the Plaintiff instituted a suit against the Defendant and the obstructionist in the City Civil Court, Mumbai (S.C. Suit No. 2974 of 1996) seeking an injunction restraining the Defendant and the obstructionist from disturbing the Plaintiff's possession of the suit flat. On 11 October 1996, the Plaintiff also filed another suit against the Defendant and the obstructionist in this Court (Suit No. 167 of 1997) seeking declaration of the former's ownership in respect of the suit flat.

    (vi) Whilst these suits were pending, on 3 November 1996, an FIR was filed by the obstructionist against the Plaintiff and his son for the offence of criminal trespass, forcible break in, theft etc. Subsequent to the filing of this FIR, on 8 November 1996, the obstructionist filed a suit against the Plaintiff and his family members (Suit No. 4606 of 1996) under Section 6 of the Specific Relief Act for recovery of possession of the suit flat.

    (vii) By an order dated 12 March 1997, the City Civil Court appointed Court Receiver in respect of the flat with directions to remove the Plaintiff and put the obstructionist in possession of the suit flat. Though an AO filed by the Plaintiff against that order was admitted by this Court, the direction to the Court Receiver to put the obstructionist in possession of the suit flat was not disturbed by this Court, though the order was said to be subject to the decision in AO. Special Leave Petition filed by the Plaintiff against the order of this Court was dismissed by the Supreme Court on 29 May 1997. The Plaintiff thereupon vacated the suit flat. Subsequently, the AO filed by the Plaintiff against the order of the City Civil Court was dismissed by this Court for want of prosecution. On 10 December 1999, the suit filed by the Plaintiff for declaration of his title to the suit flat (Suit No. 167 of 1997) was withdrawn by the Plaintiff.

    (viii) Around this time, the present summary suit (Summary Suit No. 1089 of 1999) was filed by the Plaintiff against the Defendant. On 10 December 2002, the suit was decreed for an amount of Rs. 5 Lacs with interest at the rate of 6 % per annum from the date of the institution of suit till the date of payment or realization. In the execution application filed by the decree holder, the Court Receiver attached to this Court sought to take possession of the suit flat.

    (ix) On 2 May 2003, the obstructionist obstructed the execution of the decree, following which Chamber Summons No. 647 of 2003 was filed by the obstructionist for protection against her dispossession. The Chamber Summons was partially allowed by a learned Single Judge of this Court, imposing costs on the Plaintiff. Though the possession of the obstructionist was protected, the Plaintiff was...

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