SUKIM BUSSAN INTERNATIONAL Vs. KING SHING ENTERPRISE LTD

JUDGEMENT

(1.) Heard Counsel for the parties. Perused the pleadings.

(2.) This Chamber Summons is taken out by third party ING Bank N. V. under section 47 read with Order XXI Rules 58 and 64 of the Code of Civil Procedure, 1908. The broad facts leading to the filing of the present application are as follows : that Judgment and Decree was passed in favour of the Plaintiffs on 31st May, 2002, in action No. 4761 of 2001, by the High Court of Hong Kong, Special Administrative Region, court of First Instance, holding the Judgment debtors liable for payment of U. S. D. 6,18,331.26, interest and cost. The Judgment debtor No. 2 appealed against the said order which came to be dismissed by the High Court of Hong Kong on 8th August, 2002. On the basis of the said decree, execution proceedings were initiated by the Judgment Creditors for recovery of Rs. 3,48,94,644.84 (Rupees Three crores Forty-eight Lakhs Ninety-four thousand Six Hundred Forty-four and Paise fighty-four) together with interest on rs. 2,87,75,671.34 (Rupees Two Crores, fighty-seven Lakhs Seventy-five Thousand six Hundred Seventy-one and Paise Thirty-four) at the rate of 5.2% per annum from 18th january, 2001 till 31st May, 2002 and at the rate of 8% thereafter and for cost as on february, 2003. In the said execution proceedings, Flat No. 20/1 which is the subject matter of the present Application situated at silver Arch Building, Malabar Co-operative housing Society, Napean Sea Road, Mumbai, came to be attached. The Judgment Debtor no. 2 had been prohibited from dealing with the said flat in terms of order dated 27th June, 2003 passed in Chamber Summons 777 of 2003. Besides, warrant of sale in respect of the said flat came to be issued on 21st May, 2004. Suffice it to observe that further steps have been taken including issuance of proclamation of sale in respect of the said flat. The Applicant bank, who is third party, has filed the present application on 21st April, 2005 for the following reliefs :"

(3.) The case made out by the applicants is that the Applicants are in possession of the said residential flat pursuant to an Agreement entered into with Judgment debtor No. 2 and his wife who are the owners thereof dated October 8, 2001. As per Clause 8 of the said Agreement, the agreement was a mere licence and did not create any right, title or interest in favour of the licensee. Clause 9 provides that the Licensee shall be deemed to be in juridical possession. Clause 10 provides that the provisions of Section 24 of the maharashtra Rent Control Act would apply to the agreement i. e. the licensee was required to return possession of the premises on the expiry of the period of the licence. Under the said agreement, the Applicants have paid sum of rs. 3 crores 25 lakhs to the owners as refundable security deposit. The Agreement so executed has been duly registered on 15th May, 2002. The said Agreement authorises the applicants to occupy the premises initially on leave and Licence basis for a period of twenty-two months, which period was to expire on 31st July, 2003. On completion of the licence period, the Applicants were obliged to hand over vacant possession of the said flat to the owners on receiving the security deposit of rs. 3 crores 25 lakhs already made over to the owners under the Agreement. In case, the owners failed to pay the security deposit, the applicants were entitled to remain in possession till the said amount was received by the Applicants. On this assertion, the applicants have approached this Court by way of present Chamber Summons for the reliefs already reproduced earlier.