Full Judgment Text
2014:BHC-OS:7237
This Order is modified/corrected by Speaking to Minutes Order dated 30/07/2014
kvm
1/6
6-CHS524.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 524 OF 2013
IN
EXECUTION APPLICATION (L) NO. 370 OF 2012
IN
SUIT NO. 2471 OF 1984
ALONGWITH
CHAMBER SUMMONS NO. 525 OF 2013
IN
EXECUTION APPLICATION (L) NO. 370 OF 2012
IN
SUIT NO. 2471 OF 1984
Nipun Thakkar ..... Applicant
IN THE MATTER OF
Jitendra Nanalal Trivedi ….. Plaintiff
VERSUS
Ramesh Nanalal Shah and others ….. Defendants
AND
Nipun Thakkar ….. Applicant
Mr.Birendra Saraf, i/b. Mr.Dushyant Purekar for the Applicant in CHS.
Mr.Vishal Thakker, i/b. Mr.Vinod Thaker, a/w. Ms.Anjali Trivedi for the Original
Plaintiff.
Mr.Drupad Patil for Defendant no.10.
Mr.Kalpesh Mehta, i/b. Pravin Mehta & Mithi for Defendant nos. 2(A) to 2(C).
Mr.S.C.Naidu, i/b. C.R.Naidu & CO. for Defendant no.5.
Mr.Sanjay Jain, a/w. Mr.Hemang Raythatta, i/b. RMG Law Associates for
Defendant nos. 3(A) to 3(C) and 7.
::: Downloaded on - 26/06/2024 07:31:00 :::
This Order is modified/corrected by Speaking to Minutes Order dated 30/07/2014
kvm
2/6
6-CHS524.13
CORAM : R.D. DHANUKA, J.
th
DATED : 16 JULY, 2014
JUDGMENT
By this chamber summons applicant seeks permission for impleadment as a
party and seeks deletion of defendant nos. 2(a) to 2(c), 3(a) to 3(e) and 7 and seeks
permission to carry out amendment to the execution applicatoin, Judges Order
No.58 of 2012, Judges Order No.59 of 2012 as per schedule annexed to the
chamber summons.
2. Application for amendment is filed on the basis of the deed of assignment in
favour of the applicant entered into between defendant nos.2(a) to 2(c) vide deed
th
of assignment, dated 5 July, 2012, between defendant no.7 and applicant vide
th
deed of assignment dated 5 July, 2012, by defendant nos. 3(a) to 3(e) vide deed of
th
assignment dated 16 July, 2012 and by defendant no.10 vide deed of assignment
st
dated 21 March, 2014. All these assignors under the said four deeds of
assignment are parties to the suit or are brought on record in view of the demise of
the original defendants.
3. In response to this chamber summons, learned counsel appearing for all
these assignors have made a statement that in view of the deed of assignment
executed by them in favour of the applicant, none of the assignors claim any right,
title or interest in the property and they abide by the deed of assignment entered
into between the parties. Statement is accepted.
4. Chamber summons is however opposed by defendant no.5 and the plaintiff
::: Downloaded on - 26/06/2024 07:31:00 :::
This Order is modified/corrected by Speaking to Minutes Order dated 30/07/2014
kvm
3/6
6-CHS524.13
on various grounds.
5. Mr.Naidu, learned counsel appearing on behalf of defendant no.5 invited
my attention to various provisions of the consent terms and would submit that it is
provided under the consent terms that share of the property in favour of each of the
party to the consent terms if sold at any stage, there is right of pre-emption under
the consent terms granted to the other party for purchase of their share in the suit
property. It is submitted that since the assignors did not offer their share to the
defendant no.5, no such deed of assignment at all could have entered into between
the assignors in favour of the applicant. Learned counsel submits that the
assignors accordingly cannot be deleted from the execution application or other
proceedings.
6. The next submission of the learned counsel is that by an order passed by this
th
court on 8 May, 2013, the applicant was appointed as a contractor for
construction of a compound wall and no other right has been created in favour of
the applicant. It is submitted that though some of the deed of assignments are
th
prior in point of time when the said order dated 8 May, 2013 came to be passed
appointing the applicant as a contractor, no such alleged rights under the deed of
assignment were brought to the notice of the court. It is submitted that the deed of
assignment itself is thus illegal.
7. Learned counsel appearing for the plaintiff submits that though in the
affidavit in support of the chamber summons there is an averment that the
defendant nos. 2A to 2C are the only legal heirs of the original defendant no.2 and
though the said deceased died also leaving behind him his daugther Mrs.Smita
Mukesh Modi, the said party is not impleaded as a party to the alleged deed of
::: Downloaded on - 26/06/2024 07:31:00 :::
This Order is modified/corrected by Speaking to Minutes Order dated 30/07/2014
kvm
4/6
6-CHS524.13
assignment or to this proceedings. It is submitted that since there is incorrect
statement made in affidavit in support of the chamber summons, defendant nos. 2A
to 2C shall be directed to deal with such statement by filing affidavit. It is
submitted that since the assignment itself is executed without impleading the
daughter of the said deceased i.e. the original defendant no.2, no effect to such
deed of assignment can be given by this court even while hearing this application
for impleadment of the alleged assignment.
8. The next submission of the learned counsel is that under Order 21 Rule 16
of the Code of Civil Procedure, 1908 even if there is any assignment of a decree,
such assignee has to file a separate application for execution of the decree and
cannot seek impleadment in the execution application already filed by the assignor.
9. In so far as objection of the learned counsel appearing for the defendant no.5
is concerned that there was a right of pre-emption provided under the consent
terms and deed of assignment alleged to have been executed without offering the
property to defendant no.5 is illegal is concerned, in my view the legality and
validity of the deed of assignment cannot be gone into this proceedings and the
said issue is kept open. The assignor who are parties to the deed of assignment
have made statement before this court that they have assigned their right, title and
interest in the decree in favour of the assignee and have no objection if their names
are deleted from the cause title of the execution application and the other
proceedings. In my view there is thus no merit in this submission of the learned
counsel appearing for the defendant no.5. Defendant no.5 if so desires may
exercise the remedies available in law to challenge the deed of assignment. If such
deed of assignment is set aside by the court, consequence will follow.
::: Downloaded on - 26/06/2024 07:31:00 :::
This Order is modified/corrected by Speaking to Minutes Order dated 30/07/2014
kvm
5/6
6-CHS524.13
10. In so far as second submission of the learned counsel that the applicant did
not disclose their alleged rights under the deed of assignment when the order
th
passed by this court on 8 May, 2013 appointing the applicant as contractor is
concerned, it is the case of the applicant that all the parties were aware of the deed
of assignment. In my view even this issue if defendant no.5 wants to raise while
challenging the deed of assignment, he is at liberty to do so.
11. In so far as submission of the learned counsel appearing for the plaintiff that
there is no denial and/or confirmation in the averments made in affidavit in support
of the chamber summons that the original defendant no.2 died leaving behind him
his daughter viz. Ms.Smita Modi also and she is also one of the legal heir of the
said deceased is concerned, since no affidavit in reply is filed by defendant nos. 2
A to 2C, averments made in the affidavit in support of the chamber summons are
deemed to have been accepted.
12. In so far as submission of the learned counsel that the applicant who claims
to be an assignee has to file a septate execution application and cannot seek
impleadment in the execution application filed by the assignor is concerned, a
perusal of the Order 21 Rule 16 in my view indicates that the said provision is
applicable when there is no existing application made by the assignor for
execution and a fresh application has to be made for the first time by the assignee.
Since one of the assignor has already made an application for execution of the
decree and during the pendency of such execution application if such assignor has
assigned his rights in favour of the assignee, in my view the assignee is entitled to
seek impleadment in the pending execution application and is not required to file
any fresh execution application. All the right, title and interest of the assignor
stands assigned in favour of the assignee including the right to prosecute the
::: Downloaded on - 26/06/2024 07:31:00 :::
This Order is modified/corrected by Speaking to Minutes Order dated 30/07/2014
kvm
6/6
6-CHS524.13
pending proceedings.
13. Chamber summons is accordingly made absolute in terms of prayer (a).
Amendment to be carried out within two weeks from today. Amended copy of the
proceedings shall be served upon the defendants within one week from the date of
carrying out amendment. No order as to costs.
[R.D. DHANUKA, J.]
::: Downloaded on - 26/06/2024 07:31:00 :::
This Order is modified/corrected by Speaking to Minutes Order dated 30/07/2014
kvm
1/6
6-CHS524.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 524 OF 2013
IN
EXECUTION APPLICATION (L) NO. 370 OF 2012
IN
SUIT NO. 2471 OF 1984
ALONGWITH
CHAMBER SUMMONS NO. 525 OF 2013
IN
EXECUTION APPLICATION (L) NO. 370 OF 2012
IN
SUIT NO. 2471 OF 1984
Nipun Thakkar ..... Applicant
IN THE MATTER OF
Jitendra Nanalal Trivedi ….. Plaintiff
VERSUS
Ramesh Nanalal Shah and others ….. Defendants
AND
Nipun Thakkar ….. Applicant
Mr.Birendra Saraf, i/b. Mr.Dushyant Purekar for the Applicant in CHS.
Mr.Vishal Thakker, i/b. Mr.Vinod Thaker, a/w. Ms.Anjali Trivedi for the Original
Plaintiff.
Mr.Drupad Patil for Defendant no.10.
Mr.Kalpesh Mehta, i/b. Pravin Mehta & Mithi for Defendant nos. 2(A) to 2(C).
Mr.S.C.Naidu, i/b. C.R.Naidu & CO. for Defendant no.5.
Mr.Sanjay Jain, a/w. Mr.Hemang Raythatta, i/b. RMG Law Associates for
Defendant nos. 3(A) to 3(C) and 7.
::: Downloaded on - 26/06/2024 07:31:00 :::
This Order is modified/corrected by Speaking to Minutes Order dated 30/07/2014
kvm
2/6
6-CHS524.13
CORAM : R.D. DHANUKA, J.
th
DATED : 16 JULY, 2014
JUDGMENT
By this chamber summons applicant seeks permission for impleadment as a
party and seeks deletion of defendant nos. 2(a) to 2(c), 3(a) to 3(e) and 7 and seeks
permission to carry out amendment to the execution applicatoin, Judges Order
No.58 of 2012, Judges Order No.59 of 2012 as per schedule annexed to the
chamber summons.
2. Application for amendment is filed on the basis of the deed of assignment in
favour of the applicant entered into between defendant nos.2(a) to 2(c) vide deed
th
of assignment, dated 5 July, 2012, between defendant no.7 and applicant vide
th
deed of assignment dated 5 July, 2012, by defendant nos. 3(a) to 3(e) vide deed of
th
assignment dated 16 July, 2012 and by defendant no.10 vide deed of assignment
st
dated 21 March, 2014. All these assignors under the said four deeds of
assignment are parties to the suit or are brought on record in view of the demise of
the original defendants.
3. In response to this chamber summons, learned counsel appearing for all
these assignors have made a statement that in view of the deed of assignment
executed by them in favour of the applicant, none of the assignors claim any right,
title or interest in the property and they abide by the deed of assignment entered
into between the parties. Statement is accepted.
4. Chamber summons is however opposed by defendant no.5 and the plaintiff
::: Downloaded on - 26/06/2024 07:31:00 :::
This Order is modified/corrected by Speaking to Minutes Order dated 30/07/2014
kvm
3/6
6-CHS524.13
on various grounds.
5. Mr.Naidu, learned counsel appearing on behalf of defendant no.5 invited
my attention to various provisions of the consent terms and would submit that it is
provided under the consent terms that share of the property in favour of each of the
party to the consent terms if sold at any stage, there is right of pre-emption under
the consent terms granted to the other party for purchase of their share in the suit
property. It is submitted that since the assignors did not offer their share to the
defendant no.5, no such deed of assignment at all could have entered into between
the assignors in favour of the applicant. Learned counsel submits that the
assignors accordingly cannot be deleted from the execution application or other
proceedings.
6. The next submission of the learned counsel is that by an order passed by this
th
court on 8 May, 2013, the applicant was appointed as a contractor for
construction of a compound wall and no other right has been created in favour of
the applicant. It is submitted that though some of the deed of assignments are
th
prior in point of time when the said order dated 8 May, 2013 came to be passed
appointing the applicant as a contractor, no such alleged rights under the deed of
assignment were brought to the notice of the court. It is submitted that the deed of
assignment itself is thus illegal.
7. Learned counsel appearing for the plaintiff submits that though in the
affidavit in support of the chamber summons there is an averment that the
defendant nos. 2A to 2C are the only legal heirs of the original defendant no.2 and
though the said deceased died also leaving behind him his daugther Mrs.Smita
Mukesh Modi, the said party is not impleaded as a party to the alleged deed of
::: Downloaded on - 26/06/2024 07:31:00 :::
This Order is modified/corrected by Speaking to Minutes Order dated 30/07/2014
kvm
4/6
6-CHS524.13
assignment or to this proceedings. It is submitted that since there is incorrect
statement made in affidavit in support of the chamber summons, defendant nos. 2A
to 2C shall be directed to deal with such statement by filing affidavit. It is
submitted that since the assignment itself is executed without impleading the
daughter of the said deceased i.e. the original defendant no.2, no effect to such
deed of assignment can be given by this court even while hearing this application
for impleadment of the alleged assignment.
8. The next submission of the learned counsel is that under Order 21 Rule 16
of the Code of Civil Procedure, 1908 even if there is any assignment of a decree,
such assignee has to file a separate application for execution of the decree and
cannot seek impleadment in the execution application already filed by the assignor.
9. In so far as objection of the learned counsel appearing for the defendant no.5
is concerned that there was a right of pre-emption provided under the consent
terms and deed of assignment alleged to have been executed without offering the
property to defendant no.5 is illegal is concerned, in my view the legality and
validity of the deed of assignment cannot be gone into this proceedings and the
said issue is kept open. The assignor who are parties to the deed of assignment
have made statement before this court that they have assigned their right, title and
interest in the decree in favour of the assignee and have no objection if their names
are deleted from the cause title of the execution application and the other
proceedings. In my view there is thus no merit in this submission of the learned
counsel appearing for the defendant no.5. Defendant no.5 if so desires may
exercise the remedies available in law to challenge the deed of assignment. If such
deed of assignment is set aside by the court, consequence will follow.
::: Downloaded on - 26/06/2024 07:31:00 :::
This Order is modified/corrected by Speaking to Minutes Order dated 30/07/2014
kvm
5/6
6-CHS524.13
10. In so far as second submission of the learned counsel that the applicant did
not disclose their alleged rights under the deed of assignment when the order
th
passed by this court on 8 May, 2013 appointing the applicant as contractor is
concerned, it is the case of the applicant that all the parties were aware of the deed
of assignment. In my view even this issue if defendant no.5 wants to raise while
challenging the deed of assignment, he is at liberty to do so.
11. In so far as submission of the learned counsel appearing for the plaintiff that
there is no denial and/or confirmation in the averments made in affidavit in support
of the chamber summons that the original defendant no.2 died leaving behind him
his daughter viz. Ms.Smita Modi also and she is also one of the legal heir of the
said deceased is concerned, since no affidavit in reply is filed by defendant nos. 2
A to 2C, averments made in the affidavit in support of the chamber summons are
deemed to have been accepted.
12. In so far as submission of the learned counsel that the applicant who claims
to be an assignee has to file a septate execution application and cannot seek
impleadment in the execution application filed by the assignor is concerned, a
perusal of the Order 21 Rule 16 in my view indicates that the said provision is
applicable when there is no existing application made by the assignor for
execution and a fresh application has to be made for the first time by the assignee.
Since one of the assignor has already made an application for execution of the
decree and during the pendency of such execution application if such assignor has
assigned his rights in favour of the assignee, in my view the assignee is entitled to
seek impleadment in the pending execution application and is not required to file
any fresh execution application. All the right, title and interest of the assignor
stands assigned in favour of the assignee including the right to prosecute the
::: Downloaded on - 26/06/2024 07:31:00 :::
This Order is modified/corrected by Speaking to Minutes Order dated 30/07/2014
kvm
6/6
6-CHS524.13
pending proceedings.
13. Chamber summons is accordingly made absolute in terms of prayer (a).
Amendment to be carried out within two weeks from today. Amended copy of the
proceedings shall be served upon the defendants within one week from the date of
carrying out amendment. No order as to costs.
[R.D. DHANUKA, J.]
::: Downloaded on - 26/06/2024 07:31:00 :::