TMI Blog2018 (2) TMI 2082X X X X Extracts X X X X X X X X Extracts X X X X ..... atter for compliance on 15th February 2018. - CHAMBER SUMMONS NO.993 OF 2017 IN EXECUTION APPLICATION NO.765 OF 2015 IN AWARD NO.83 OF 2014 - - - Dated:- 12-2-2018 - G.S. PATEL, J Mr Mayur Khandeparkar, with Vikas Salvi, Sanjay Dubey, I/b Vikas Salvi Associates, for Applicant. Mr Rajneesh Agrawal, i/b Meghnath N SH Bohra, for Decree Holder. Mr Prithipal S Chadha, Claimant, present. Mr Jitenderpal Singh Chadha, Respondent, present. Mr Toraskar, Section Officer of Court Receiver Present. ORDER 1. There is an error in the order dated 5th February 2018. In paragraph 1, line 2 the words no party are to be deleted. 2. There is some something very rotten in the state of our commercial litigation. It is exemplified by this case. If ever there was an example of a commercial fraud and a fraud on the Court, this is it. 3. I have before me a Chamber Summons No.993 of 2017 by one Fullerton India Credit Company Ltd, ( Fullerton ). It seeks to raise an attachment on Flat No. C-12, Cenced Apartment, 318, Union Park, Pali Hill Road, Khar (West), Mumbai 400 052. Fullerton says that it is a secured creditor of the Respondent, Jitenderpal Singh C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annexed at Exhibit F to the Affidavit in Support of the Chamber Summons at page 66. The Arbitrator was, to my very great dismay, an Advocate of this Court, against whom I propose to issue notice quite separately for his role in what followed. The award is so astonishing and so utterly remarkable in what it set out to do, and actually did, as an entirely pre-planned exercise to perpetrate a fraud on the Court, that I can do better than quote the first two paragraphs of it. 1. One Mr Prithipal Surindershingh Chadha, adult, Indian habitant, aged 60 years, residing at Pratap Kutir, 16th Cross Road, Khar, Mumbai 400 052 (hereinafter referred as Claimant for sake of brevity), by his letters dated 4th November 2014 had forwarded me a copy of the agreement dated 4th November 2014 entered into between him on one hand and Mr Jitenderpal Singh Chadha, Indian habitants, (aged about 35 years), staying at C/12, Cenced Apartment, 318, Union Park, Pali Hill Road, Mumbai 400 052 (hereinafter referred as Respondent for sake of brevity) on the other hand with specific request that the said letters forwarded by them to me may be treated as a reference. A careful perusal of the said agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ward was rendered on stamp paper of 29th September 2014 obtained by Advocate Parab. The operative portion of the award says that Jitenderpal was to pay an amount of Rs.3,94,48,954/- to his fatherin- law with interest at 24% compounded monthly (itself utterly extraordinary), and, in default, the very flat in question was to be transferred to the name of the Jitenderpal s father-in-law -without payment of the balance consideration. Then clause (c) made a wholly untenable direction of attachment and sale of the flat and clause (d) created a charge over it in favour of the Prithipal, the Claimant, while clause (e) granted the decree for specific performance and clause (f ) granted a restraint. 9. This duo of father-in-law and son-in-law then come together to this Court, when Prithipal filed Execution Application No.765 of 2015 and also filed a Chamber Summons in that Execution Application, Chamber Summons No.1468 of 2015. Prithipal moved this Chamber Summons before KR Shriram J on 27th April 2016 inter alia seeking the appointment of the Receiver in Execution. Father-in-law and son-in -law were careful to arrange separate legal representation. Jitenderpal, the son-in-law, through hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I asked them if he was just outside Court in the corridor. Indeed he was. The Claimant stepped out and, in a few minutes, returned with his son-in-law in tow. 15. I will first allow this Chamber Summons immediately in terms of prayer clause (a), (b) and (c) which reads thus: (a) That this Hon ble Court may be pleased to raise the warrant of attachment levied on mortgaged property namely Flat No.C/12, Cenced Apartment, 318, Union Park, Pali Hill Road, Khar (West), Mumbai 400 052; (b) That this Hon ble Court be pleased to discharge the Court Receiver appointed in Chamber Summons No.1468 of 2015 in Execution Application No.765 of 2015, without passing the accounts, but subject to payment by Claimant and Respondents of such charges as may be applicable, to the Court Receiver; (c) The Court Receiver be directed to hand over possession of the mortgaged property namely C/12, Cenced Apartment, 318, Union Park, Pali Hill Road, Khar- West, Mumbai 400 052, to the Applicants herein; 16. I will now go further. The Registry will issue Suo Motu Notice under Rule 9(1) of the Contempt of Courts (Bombay High Court) Rules, 1994 to the Claimant, Prithipal S Chada, the Respondent Jit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I Home Finance Ltd v Credential Finance Ltd Ors, AIR 2001 Bom 179 on the question of whether a separate suit is required in a situation like this. Referencing Section 53 of the Transfer of Property Act 1882 regarding fraudulent transfers, Srikrishna J held that where title has been obtained by fraud, it is ineffectual. It was not necessary to file an independent suit for this purpose. 23. Finally, there is that long line of judgments that includes AV Papayya Sastry Ors vs Government of AP Ors (2007) 4 SCC 221 regarding the conduct of expected by Courts of litigants. This is now too wellknown to merit repetition. This case falls squarely within those parameters. A party who defrauds a court will be dealt with swiftly and without remorse or mercy. Mr Khandeparkar says this is increasingly a trend. That is shameful, and it is unforgivable. Certainly this is a case that, as I said at the beginning, has the reek of collusion and the stench of playing the system to orchestrate a fraud to defeat a secured creditor. This Court - and by that I do not just mean myself, but this High Court - will not for a moment countenance it. 24. List the matter for compliance on 15th Februar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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