Case Note & Summary
The present chamber summons was taken out by the applicant, Rajneesh Agarwal & Associates P. Ltd, seeking to raise an attachment under Order 21 Rule 54 of the Code of Civil Procedure, 1908 (CPC) in respect of office premises bearing no. 35 situated on the 3rd floor, Atlanta Building, Nariman Point, Mumbai. The background facts are that the plaintiff, Vibra Fibre P. Ltd, had filed a summary suit against the defendant, Aryaman Financial Services Ltd, for recovery of Rs. 40,00,000 with interest. A decree was passed in favour of the plaintiff for Rs. 84,97,476. The defendant judgment debtor was the owner of the premises in question. The defendant proposed to sell the premises to the applicant, and the cooperative society issued a No Objection Certificate on 5.2.2003. The applicant's chartered accountant searched the register of companies and found no charge registered against the premises. On 23.2.2003, an agreement for sale was executed between the defendant and the applicant for a total consideration of Rs. 70,00,000. The applicant claimed to have paid the entire consideration amount to the defendant judgment debtor. The applicant also claimed to have obtained possession of the premises. Subsequently, the plaintiff obtained an attachment order under Order 21 Rule 54 CPC, which was served on the society after the applicant had already purchased the property. The applicant contended that he was a bona fide purchaser for value without notice of the decree and that the attachment was not binding on him. The court examined the facts and held that the applicant had paid full consideration and obtained possession before the attachment order was served on the society. The court noted that the principle of lis pendens under Section 52 of the Transfer of Property Act, 1882 did not apply as the suit was not pending at the time of the agreement. The court also held that the attachment under Order 21 Rule 54 CPC could not affect the rights of a bona fide purchaser who had acquired the property for value without notice of the decree. Accordingly, the court allowed the chamber summons and raised the attachment in respect of the premises.
Headnote
A) Civil Procedure Code - Attachment of Property - Order 21 Rule 54 - Bona Fide Purchaser - The applicant purchased the property for full consideration and obtained possession before the attachment order was served on the society. The court held that the attachment is not binding on the applicant as he was a bona fide purchaser for value without notice of the decree. The attachment was raised. (Paras 1-10) B) Transfer of Property Act - Lis Pendens - Section 52 - Applicability - The principle of lis pendens does not apply to a purchaser who has paid full consideration and obtained possession before the attachment, as the suit was not pending at the time of the agreement. (Paras 5-8) C) Civil Procedure Code - Execution - Attachment before Judgment - Section 64 - The attachment of property does not affect the rights of a bona fide purchaser who has acquired the property for value without notice of the decree. (Paras 6-9)
Issue of Consideration
Whether a purchaser of immovable property who has paid full consideration and obtained possession before attachment can claim that the attachment is not binding on him, and whether the attachment under Order 21 Rule 54 CPC can be raised in his favour.
Final Decision
The chamber summons is allowed. The attachment under Order 21 Rule 54 CPC in respect of the office premises bearing no. 35, Atlanta Building, Nariman Point, Mumbai is raised.
Law Points
- Order 21 Rule 54 CPC
- Section 64 CPC
- Section 52 Transfer of Property Act
- 1882
- lis pendens
- bona fide purchaser for value without notice
- attachment before judgment
- execution proceedings
