SUMIKIN BUSSAN INTERANATIONAL Vs. MANHARLAL T MODY

JUDGEMENT

(1.) THE applicants, in this Chamber Summons, being third persons to the judgment and decree, dated 31st May, 2002, prayed that the warrant of attachment, dated 12th January, 2004, issued in respect of the flat bearing No. 20, admeasuring 3300 sq. ft. , on 20th floor of Silver Arch, 66, Nepean Sea Road, Mumbai, together with two car parking spaces bearing nos. 12 and 85, on P-1 and P-2 levels, in Malbar Co-operative Housing Society Ltd. , (for short society) and the shares pertaining to the said flat described in Schedule "a", be vacated and/or set aside.

(2.) THE present execution Application No. 13/2004, is at the instance of original plaintiffs, Sumkin Bussan International (Hong Kong), whereby the immovable property, owned by Manharlal Trikamdas Modi, defendant No. 2, (judgment debtor) has been attached, by order dated 12th January, 2004. The plaintiffs, (judgment-creditors) have initiated execution proceeding under order 21, Rule 54 of Civil Procedure Code (C. P. C.) based on an order dated 31st May, 2002 of High Court of Hong Kong, against defendant 1 and 2 through hong Kong Action No. 4761/2001.

(3.) THE case of the applicants in briefly stated is as under: by the memorandum of understanding dated 6th June, 2003, applicants alleged to have entered into an agreement for sale with Mr. Manharlal t. Mody (judgment-debtor), defendant No. 2 and his wife Mrs. Meena M. Mody i. e. defendant No. 1 in respect of the premises in question. According to the applicants, they have deposited earnest money of Rs. 26,50,000/-, in terms of clauses of the memorandum of understanding. The first payment was made on 29th April, 2003 of Rs. 2,50,000/ -. The next two payments were made on 6-6-2003 of Rs. 25 lacs. They have signed the form of consent, to the proposed transfer of shares and interest of the society. Some forms were signed by the judgment debtor, Mr. and Mrs. Mody and submitted to the society, on 6-6-2003. Relying on these, applicants have submitted that, even though the document has been styled, as memorandum of understanding, the same is in fact, an agreement for sale and the applicants are ready and willing to complete the said transaction with the judgment debtor (original defendants ). It may be mentioned here that the property in question is in occupation of a tenant/licensor of the judgment debtor. The applicants as well as, judgment debtor, therefore, are not in actual occupation of the same premises in question.