V/s v. Star Machinery Mfg. Co.Ltd & Ors.

parties. There evidence recorded. He submits matter adjourned before Court recording evidence appeared board. In while, several developments support Applicant belong Judgment Debtor but belongs to the Applicant - Company which is a distinct legal entity.

4. In the affidavit in support a reference is made to Applicants Flat reliance placed several Documents. It pointed Chamber Summons served appearing behalf Decree Holder/Bank. He submits Documents Title regard presently available. However, copies placed Flat occasion Shri Thacker states mortgaged Applicant Syndicate Bank. The original Bank purchaser. :3: The Bank has disposed off the Flat in order to recover its dues from the Applicant.

5. It is in such circumstances, that a detailed order passed 6th October 2008 granting liberty the Applicant to place on record a compilation of the documents.

6. Now, a compilation of the documents referred to and relied Chamber Summons filed. Similarly, compilation original proceedings resulted a decree passed favour Bank against the Defendant in the instant suit is also placed on record.

7. In the affidavit in support, the Applicants have stated thus :-

12. I say and submit that the said premises has already been mortgaged by the applicants with the Syndicate Bank in or about October 1992 and the said premises continue to be under the said Mortgage with the Syndicate Bank, Colaba Branch, Bombay. It is pertinent to note that the said Syndicate bank has a registered charge, whereas the said Plaintiff Bank has no charge whatsoever, registered or otherwise. Hereto annexed and marked Exhibits ‘G-1, G-2 and G-3’ are copies of - (i) :4: Memorandum of Entry - for creation of equitable mortgage dated 21st October 1992, (ii) Declaration of Mr. Rohit M. Mehta, Director of the Applicant - Company dated 15th October 1992 and (iii) List of documents and title deeds deposited with Syndicate Bank on 21st October 1992, respectively.

13. From the title of the proceedings, it is clear that the Applicants herein are not the party to the above suit. As a result, it is clear that the said Warrant of Attachment has been issued wrongly against the Applicants and APS Star Industries Ltd. seeking to attach their immovable property belonging to them viz. Flat No.B-12 and C-18 respectively. I say and submit that the Applicants are not party to the present suit nor party to the loan amount granted and sanctioned to the Defendants herein. Needless to say, APS Star Industries Ltd. is also not a party to the Suit. In the Circumstances, I say and submit that both the said premises cannot be attached for the recovery of the debt of the Defendants herein in the present proceedings, since the Applicants are not party not the judgment debtors nor claiming through the Judgment debtors. In fact, it is submitted that the Applicants are an independent body, a public limited company and not a party to the loan transaction, or guarantor for the said :5: loan transaction, subject matter of the present Suit.

14. In support of the contention as set out in the previous affidavit that the said Flat stands mortgaged to Syndicate Bank, I crave leave to reproduce hereunder for the sake of convenience of this Hon’ble Court, the relevant portion of resolution dated 31st December 1990 adopted by the Applicant - Company for creating security. of Resolution dated 31st December 1990 : Extract of Resolution dated 31st December 1990 : Extract Extract of Resolution dated 31st December 1990 : """ SUBJECT : CREATION OF SECURITY SUBJECT : CREATION OF SECURITY SUBJECT : CREATION OF SECURITY "RESOLVED THAT subject approval Shareholders pursuant provisions Section 293 (1)(a) Companies Act, 1956, Board Directors hereby approve creation charge favour Syndicate Bank equitable mortgage property company situated Flat No.12-Block B, Dhanraj Mahal, CSM Marg, Bombay - 400039, secure facility / advance / Star Machinery Manufacturing Company Limited. FURTHER RESOLVED THAT obtaining approval shareholders, Shri Rohit Mehta Shri P.J. :6: Mehta, Directors Company, hereby authorised execute Agreements hypothecation / Equitable mortgage, undertaking, applications documents required regard."

8. The Applicants in paragraph 18 have stated that the Flat belong First Defendant Defendant Applicants, assignees sub-lessee. It further pointed registered office First Defendant situated Vadodara, Gujarat, particulars holding Defendants Applicant pointed 18 (iv) & (v). It circumstances 20 contended First Defendant outgoings respect Flat either lessor sub-lessor. Flat No.12 described First Defendant including balance-sheet public documents annexed Exhibit ‘J’. It pointed neither plaint Summary Suit No.1248 1986 affidavit Chamber Summons No. 1094 1997, First Defendant contended Flat belongs Plaintiffs Decree-Holder produced any Documents to support the attachment.

9. It is in such circumstances that the request is to raise the attachment. :7:

10. The affidavit in support of this Chamber Summons is 7th June

2006. It a elaborate affidavit Director Applicant. The Director Applicant stated from the records the above position emerges and he refers to several documents.

11. over. Now, a compilation of the documents has been handed The compilation record marked identification. The Documents placed ‘X’ record including original 1934, sub-lease 1970 assignment July

1985. The memorandum 21st October 31st 1992 placed record. From copies consent decree apparent original Defendants - Star Machinery Manufacturing Company Ltd. settled Summary Suit Appeal before Appellate Court. There question security referred Plaint inasmuch Suit Order 37 Rule 2 of the C.P.C. it is only while executing the consent decree that the attachment has been levied.

12. Despite the Chamber Summons being duly served with annexures thereto, affidavit reply. reason dis-believe contents I documents placed before compilation. None averments statements disputed :8: denied. In peculiar another Nationalised Bank attached Flat secure Plaintiff - Bank unable produce document Flat belongs Debtor passed Defendants/Judgment earlier Chamber Summons deserves to be recalled. It is accordingly recalled.

13. In the result, this Chamber Summons is made absolute prayer Clause (a). It Flat No.B-12 belongs Applicants therefore, attached execution decree passed favour United Bank India. However, clarified attachment properties instance Plaintiff - Bank continue properties execution proceedings in accordance with law. The Chamber Summons is allowed accordingly.

14. Since it is declared that the Applicant is the Flat Judgment Debtor therefore, attachment raised, separate required to be passed in the earlier Chamber Summons No.1094 of 1997. The same is disposed of accordingly. DHARMADHIKARI,J.) (S.C. DHARMADHIKARI,J.) (S.C. DHARMADHIKARI,J.) (S.C.