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SCA/276220/2004 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2762 of 2004
With
CIVIL
APPLICATION No. 14746 of 2007
In
SPECIAL CIVIL APPLICATION No. 2762 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
JILLANI
PACKING INDUSTRIES - Petitioner(s)
Versus
BHARATIBEN
BHARATKUMAR SANGANI & 1 - Respondent(s)
=========================================================
Appearance
:
MR
AJ SHASTRI for
Petitioner(s) : 1,
None
for Respondent(s) : 1,
MR
HM PRACHCHHAK for
Respondent(s) : 1.2.1,
1.2.2,1.2.3
MR
YOGESH S LAKHANI for
Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 25/09/2008
ORAL
JUDGMENT
This
petition is directed against an order dated 28.1.2004 passed by the
learned Joint Civil Judge (S.D.), Porbandar below Ex.27 and 44 in
Special Civil Suit No.119/02.
2. The
petitioner is the original plaintiff. The above suit has been filed
against one Shiv Chemicals (partnership firm) seeking recovery of
Rs.4,99,819/-. It is the case of the petitioner that during the
pendency of the said suit and shortly after the summons thereof was
served on the defendants, one of the defendants, namely, Bharatbhai
Vrajlal sold his immovable property to Rasilaben. Eventually, if the
decree as prayed for is passed in favour of the plaintiff, it may be
necessary to execute the same against immovable property sold by
Bharatbhai. On this basis, application Ex.44 came to be filed. In
the said application, there were two fold prayers made by the
plaintiff. In para 5(1), it was prayed that other parters of the
partnership be permitted to be joined as co-defendants. In para
5(2), it was prayed that the subsequent purchaser of property,
namely, Rasilalben be also joined as an additional defendant. By the
impugned order, the learned Judge though accepted the first prayer,
refused to join Rasilalben as co-defendant. It is this portion of
the order which the petitioner has challenged in the present
petition.
3. Learned
advocate Shri AJ Shastri for the petitioner vehemently submitted that
the petitioner has filed the suit for recovery of outstanding dues
of the partnership. During the pendency of the suit, one of the
partners transferred his property to Rasilaben which transfer would
be hit by the provisions of sections 52 and 53 of the Transfer of
Property Act. It was, therefore necessary to join Rasilaben on record
so that if ultimately decree is passed in favour of the plaintiff,
the same can be executed against the immovable properties of the
partners.
Reliance
was placed on a decision of the Apex Court in the case of Amit
Kumar Shaw v. Farida Khatoon,
AIR 2005 SC 2209 wherein the Supreme Court observed that under Order
22 Rule 10 of the CPC an alienee pendente lite may be joined as
party and the High Court has discretion in the matter which must be
judicially exercised. It was a case wherein the subsequent purchaser
wished to be joined as a co-defendant. It was a reverse case from
the present one and the observations would therefore not apply
directly.
4. On
the other hand, learned advocate Shri Prachchhak for the concerned
respondent opposed the petition and contended, inter alia, that the
Trial Court has given cogent reasons for refusing the prayer. No
interference is therefore called for.
5. Having
heard the learned advocates appearing for the parties, I find that in
the application Ex.44, the plaintiff did not even aver that transfer
of property was fraudulent or was with a purpose of defeating the
just claim of the plaintiff. No collusion is alleged between
Bharatbhai and Rasilaben. The plaintiff does not contend that there
is close relation between two or that the property was sold at an
artificially low price. Under the circumstances, the question is
whether mere filing of the suit would automatically be sufficient to
brand the transaction as fraudulent so as to apply the provisions
contained in section 53 of the Transfer of Property Act.
6. I
am afraid, neither section 52 nor section 53 of the Transfer of
Property Act would iposo facto
apply in the present case. Section 52 pertains to a situation where
any suit or proceedings in which any right to immovable property is
directly and specifically in question. In the present case, the
immovable property sold by Bharatbhai to Rasilaben is not the subject
matter of the suit. Admittedly, the suit was filed for recovery of
money claim and section 52 of the Transfer of Property Act,
therefore, would not apply.
Section
53 of the Transfer of Property Act provides, inter alia, that every
transfer of immovable property made with an intent to defeat or
delay the creditors of the transferor shall be voidable at the option
of the creditor so defeated or delayed. It specifically provides
that nothing in the said sub-section would impair the rights of the
transferee in good faith and for consideration. For application of
section 53, therefore, it would be necessary that transfer of
immovable property could be with an intent to defeat or delay the
creditor and in any case, the same would not impair the rights of the
transferee in good faith and for consideration. In the present case,
as noted, it is not even averred by the plaintiff that the transfer
was made with an intent to defeat or delay the creditor. It is also
not contended that the transferee had purchased the property not in
good faith or not for full consideration. For mere asking, the
plaintiff cannot by virtue of pendency of the suit chase a transfer
made by the defendant in ordinary course of events. Accepting the
contention of the petitioner that in case of transfer of pendente
lite the Court should join the transferee and strike down the
transfer would amount to granting attachment before judgment the
moment the suit is filed and would virtually preclude the defendant
from dealing with his properties in ordinary course of business and
would also gravely jeopardize the rights and interest of bonafide
purchasers for value without notice. To reiterate, in absence of any
averment of intentional transfer to defeat the rights of the creditor
and allegations that the transferee purchased the property not in
good faith and not for full consideration, it is not possible to
accept the application of the plaintiff seeking to join the
transferee as co-defendant. The learned Judge in my view did not
commit any error.
7. The
petition is therefore, dismissed. Rule is discharged. Interim
relief is vacated. It will be open for the petitioner to request the
learned Trial Judge for expediting the pending suit.
Civil
Application is also disposed of accordingly.
(Akil Kureshi, J.)
(vjn)
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