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Friday, April 15, 2016

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. = 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.= 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.

                                                                  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)

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