KUSUM HARILAL SONI Vs. CHANDRIKA NANDLAL MEHTA & ANR.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 3785 of 2016, Judgment Date: Apr 12, 2016
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3785 OF 2016
[Arising out of SLP (Civil) No. 25784 of 2013]
Kusum Harilal Soni .. Appellant
Versus
Chandrika Nandlal Mehta and Anr. .. Respondents
J U D G M E N T
ARUN MISHRA, J.
1. Leave granted.
2. The appellant has questioned the order passed by the High Court of
Judicature at Bombay in relation to Chamber Summons No. 1249 of 2009
arising out of Execution Application No. 318 of 2005 thereby setting aside
the attachment of Flat No. 408, Saidham Co-operative Society Sodawala Lane,
Borivli (West), Mumbai.
3. The appellant had filed a suit for eviction with respect to Flat No.
F-201, Building No.4, Prem Nagar, Mandpesbwar Road, Borivali (West), Mumbai
against respondent no. 1 as license had expired on 1.11.1994. Thereafter
the premises were not vacated, nor the compensation was paid. The
competent authority passed an order directing the respondent no. 1 to
handover vacant possession to the appellant along with compensation of
Rs.8,000/- per month with effect from 1.11.1994 till the date of handing
over the possession. Against the order of the competent authority,
Respondent no. 1 filed CRA no. 678 of 2001 before the High Court which was
dismissed. Thereafter respondent no. 2 filed a Special Leave Petition no.
7022 of 2001 before this Court and obtained an ex-parte stay only on the
ground for extension of time to vacate. Later, upon the statement made
that possession of the flat was handed over, the SLP was dismissed by this
Court as withdrawn. Though the possession was handed over on 17.7.2001 to
the Appellant, the amount of compensation was not paid. Thereafter, an
application under Order 21 Rules 41 and 42 of the Code of Civil Procedure
was filed by the Appellant restraining respondent no. 1 from transferring
the flat No. 408, Saidham Co-operative Society Sodawala Lane, Borivli
(West), Mumbai to respondent no. 2. However, in order to defeat and
frustrate the decree with respect to the compensation, respondent no. 1
transferred the flat in question to respondent no.2 by an unregistered
agreement deed dated 26.6.2001 which is neither properly stamped nor duly
registered. It was submitted that the Memorandum of Understanding dated
11.6.1995 and agreement dated 26.6.2001 are sham and had been set up after
passing of the order for possession and compensation by the respondents to
defeat the execution of the order.
4. The appellant had submitted that on 1.10.1987 respondent no. 1, Smt.
Chandrika Nandlal Mehta came to be the owner of the flat and entry of
ownership was transferred in her favour on 23.2.1995. As the licence
agreement had expired with respect to the vacation of flat No. F-201,
Building No.4, Prem Nagar, Mandpesbwar Road, Borivali (West), Mumbai,
eviction proceedings had been initiated under section 13A(2) of the Bombay
Rent Act, 1947, in which respondent no. 1 made a statement that there was
another flat being Flat No. 408 Saidham Co-operative Society Sodawala Lane,
Borivli (West), Mumbai which was purchased in the name of herself and her
daughter Chetana. The competent authority had passed the eviction order on
6.12.2000. The appeal had been rejected by the High Court against the
order of the competent authority for eviction and compensation on
10.4.2001. On 8.5.2001, in the SLP preferred by respondent no. 1, an
interim ex-parte stay order was granted by this Court. Thereafter on
26.6.2001, in order to defeat the order of eviction and payment of
compensation, respondent no. 1 had entered into so-called agreement which
is an unregistered document in favour of her daughter in the shape of
transfer deed. However, possession of the licensed premises was handed
over on 17.7.2001 to the appellant, the amount of compensation from 1984
till 2001 at the rate of Rs.8,000/- per month was not paid.
5. On 20.12.2001, the appellant filed an application before the
competent authority for recovery of possession and injunction upon
respondent no. 1 from selling the flat in question. Thereafter the SLP
was dismissed on 18.3.2002 as having been withdrawn by respondent no. 1.
6. On 10.4.2002, the appellant filed a miscellaneous application under
Order 21 Rule 42 CPC for recovery of amount of compensation of Rs.6,48,000/-
along with interest and for attachment of the flat in question. On
12.4.2002 the application filed by the appellant was allowed. Respondent
no. 1 was restrained from transferring the suit property. On 5.6.2002 the
application filed by the appellant under Order 21 Rule 42 was allowed and
respondent no. 1 was directed to pay arrears of monthly license fee @
Rs.8,000/- per month. However, Notice no. 900/06 was filed by the appellant
under Order 21 Rule 22 CPC before the High Court for proceeding with the
execution. On 22.3.2007 the High Court passed an order making the notice
absolute. Thereafter on 2.2.2009 warrant of attachment of movable
property was issued by the High Court in the execution.
7. Later on, Respondent no. 2, daughter of respondent no. 1, filed
Chamber Summon No. 1249/09 for setting aside the attachment of the suit
flat and moveables therein by contending that by Memo of Understanding (for
short the MOU) dated 11.6.1995 and an unregistered agreement dated
26.6.2001 respondent no. 1 had sold the flat in question to respondent no.
2 for a sum of Rs.4,25,000/-.
8. A reply was filed by the appellant on 12.3.2011 and the chamber
summons was opposed on the ground that a fraud being played on the Court.
It was contended in the reply that the chamber summons was based on
fraudulent and mala fide intention and the mother and daughter had acted in
collusion. The High Court had already made the notice absolute on
22.3.2007 without any objection filed by Judgment debtor.
9. The High Court by the impugned order has allowed the objection of
respondent no. 2. Liberty has been given to the appellant to initiate
proper proceedings in accordance with law to get the declaration and
proving the averments so made in collusion with respect to MOU dated
11.6.1995 and agreement dated 26.6.2001 afresh. The documents filed by
respondent no. 2 have been relied upon. The attachment has been set aside.
Hence, the present appeal.
10. We have heard the learned counsel for the parties at length. The
flat in question was transferred in the name of respondent no. 1 on
1.10.1987. Thereafter, the different premises Flat No. F-201, Building
No.4, Prem Nagar, Mandpesbwar Road, Borivali (West), Mumbai occupied by the
respondent no. 1 as licensee was ordered to be vacated by the competent
authority on 6.12.2000. Though the possession had been handed over on
17.7.2001 after rejection of the appeal by the High Court and filing of the
SLP in this Court, it is clear that in order to defeat the execution order
for payment of compensation, an unregistered agreement has been entered
into on 26.6.2001 between mother and the daughter on the basis of so-called
MOU dated 11.6.1995, which indicates that respondent no. 2 was unmarried at
the relevant time. It was mentioned in Clause 3 of the MOU that the
purchaser i.e. respondent no. 2 had agreed to look after and maintain the
vendor and her family even after her marriage and she ceased to stay in the
flat with the vendor. A sum of Rs.1,14,000/- is purported to have to been
received from unmarried daughter by respondent no. 1. This MOU had not
been set up by respondent no. 1 while she made the statement before the
competent authority in the pending eviction proceedings in 2000.
Respondent no. 1 had stated that in the year 2000 the flat in question was
in the name of herself and her daughter in joint names. She has not
stated that any such MOU had been entered into between mother and daughter
and once the order for eviction and compensation had attained finality, it
is apparent that in order to frustrate the order for payment of
compensation, the deed dated 26.6.2001 had been set up which is not a
registered document. Though it was mentioned in the document that the
stamp and registration charges shall be paid by the transferee, it was not
the document executed by the Co-operative Society. This Court had issued a
notice in the SLP on 8.5.2001 only on the question of grant of reasonable
time for vacating the premises. It is also to be noted that the
miscellaneous application was filed under Order 21 Rule 42 CPC by the
appellant against respondent no. 1 restraining her from
selling/transferring/disposing of the flat in question, so that the order
dated 6.12.2000 with respect to compensation passed by the competent
authority may be executed. On 17.7.2001 the possession had been handed
over to the appellant. Miscellaneous application dated 10.4.2001 was
filed by the decree holder under Order 21 Rule 42 CPC for issuance of
warrant for recovery of the compensation and arrears of license fee in the
sum of Rs.6,48,000/- along with interest @ 9% per annum and for attachment
of flat in question along with injunction upon respondent no. 1 from
selling the flat. This notice attained finality as respondent no. 1
failed to submit any reply to the notice. The notice was made absolute by
the High Court vide order dated 22.3.2007. The warrant of attachment was
issued on 2.2.2009 and the flat in question has been attached. The
judgment debtor has failed to indicate that the MOU dated 11.6.1995 and the
unregistered agreement dated 26.6.2001 at the time when notice was issued
and made absolute and execution was ordered to be prosecuted with. It was
only after the notice was made absolute and the flat in question had been
attached, respondent no. 2 has taken the chamber summons in question on the
basis of which the impugned release order was passed by the High Court.
The facts indicate that the MOU and the agreement had been set up by
respondent no. 1 in order to delay and frustrate the eviction order and
payment of compensation. The order was passed way back on 6.12.2000 by the
competent authority, which has attained finality up to this Court. The
nature of MOU indicates that even after marriage of daughter, when she
ceases to be in possession of flat in question, the mother, judgment-debtor
will remain in possession. MOU casts a duty upon respondent no. 2 to look
after and maintain the vendor and her family even after her marriage and
ceases to stay in the flat in question with the vendor. Such an
understanding by the married daughter by itself falsifies the documents and
indicates that a dubious transaction had been entered into between
respondent nos. 1 and 2 to illegally defeat the order of payment of
compensation. Thus it is clear that daughter has been set upon false
pretext to obstruct execution of order dated 6.12.2000. As per MOU, the
Judgment-debtor herself continues to be in possession. The statement of
the judgment-debtor also falsifies MOU and the subsequent unregistered
documents cannot be said to be bona fide. It was clearly collusive and in
order to defeat the execution proceedings. The mother and daughter had
illegally attempted to get the attachment cancelled by setting up false
documents in favour of respondent no. 2 on the basis of MOU and the
unregistered agreement which had not seen the light of the day for several
years.
11. Thus, the High Court has erred in law in setting aside the
attachment. The impugned order and the chamber summons are liable to be set
aside. The appellant is free to carry out the execution and to realize the
amount of compensation from the flat in question as it has rightly been
attached in the execution proceedings. The impugned order is accordingly
set aside and the appeal is allowed.
………………………J.
(V. Gopala Gowda)
New Delhi; ………………………J.
April 12, 2016. (Arun Mishra)