Case Note & Summary
The case involves two Chamber Summonses taken out by Defendant No.4 in execution proceedings arising from Summary Suits. The Plaintiff, M/s. Wolstenholme International Ltd., had obtained a decree against the Defendants, who were jointly and severally liable. By an order dated 23rd August 2005, Defendant No.4 was directed to deposit Rs. 2,19,54,038 by 8th September 2005. To comply, Defendant No.4 sought to mortgage two flats (Flat No.203 and Flat No.232) located at Jolly Maker Apartment No.1, Tower 'B', Cuffe Parade, Mumbai. However, these flats were jointly owned by Defendant No.4 and Defendant No.2. The bank (ICICI Bank) required both owners to execute the mortgage documents. Defendant No.2 refused to cooperate. The court observed that Defendant No.2's contribution to the decree was marginal, while the liability was substantial. The court directed Defendant No.2 to cooperate in executing the mortgage documents to enable Defendant No.4 to raise funds. The court indicated that if Defendant No.2 failed to cooperate, it would pass appropriate orders to facilitate compliance. The Chamber Summonses were disposed of with these directions.
Headnote
A) Civil Procedure - Execution of Decree - Joint Ownership - Mortgage - The court considered whether a co-owner can be compelled to join in mortgaging jointly held property to enable another co-owner to raise funds to satisfy a decree for which all defendants are jointly and severally liable. The court noted that Defendant No.2's contribution was marginal and directed Defendant No.2 to cooperate in executing mortgage documents, failing which the court may pass appropriate orders. (Paras 2-3)
Issue of Consideration
Whether the court can direct a co-owner to cooperate in mortgaging jointly owned property to enable another co-owner to raise funds to satisfy a joint decree.
Final Decision
The court directed Defendant No.2 to cooperate in executing the mortgage documents to enable Defendant No.4 to raise funds from ICICI Bank. If Defendant No.2 fails to cooperate, the court may pass appropriate orders to facilitate compliance. Chamber Summonses disposed of.
Law Points
- Joint ownership
- mortgage
- decree execution
- cooperation of co-owner
- court direction to facilitate compliance
Case Details
Chamber Summons No.1150 of 2005 in Execution Application No.352 of 2002 in Summary Suit No.345 of 1999 and Chamber Summons No.1151 of 2005 in Execution Application No.351 of 2002 in Summary Suit No.346 of 1999
Mr. Zal Andhyarujina with Mr. R.A.E. Saini i/b M/s. Maneksha & Sethna for Applicant/Defendant No.4; Ms. Deepa Chavan i/b Little & Co. for Plaintiff; Mr. B. Shroff with Mr. Ashok Varma i/b Gagrat & Co. for Defendant No.2
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Nature of Litigation
Execution proceedings in summary suits
Remedy Sought
Defendant No.4 sought court directions to enable mortgage of jointly owned flats to raise funds to satisfy decree
Filing Reason
Defendant No.4 needed to deposit Rs. 2,19,54,038 by 8th September 2005 as per earlier order, but Defendant No.2 refused to cooperate in mortgaging jointly owned property
Previous Decisions
Order dated 23rd August 2005 in Chamber Summons Nos.644 of 2005 and 645 of 2005 directed Defendant No.4 to deposit the amount
Issues
Whether the court can direct a co-owner to cooperate in mortgaging jointly owned property to enable another co-owner to raise funds to satisfy a joint decree.
Submissions/Arguments
Defendant No.4 argued that both flats are jointly owned with Defendant No.2, and the bank requires both owners to execute mortgage documents; Defendant No.2 is not cooperating despite having made marginal contribution to the decree.
Ratio Decidendi
A co-owner who has made marginal contribution to a joint decree cannot obstruct another co-owner from mortgaging jointly owned property to satisfy the decree; the court may direct cooperation to facilitate execution.
Judgment Excerpts
Under that order, the Defendant no.4 is required to deposit sum of Rs.2,19,54,038.00 (Rupees Two Crores Nineteen Lakhs Fifty-four Thousand & Thirty-eight) on or before 8th September 2005.
The predicament of Defendant No.4 as is pointed out before this Court is that both the flats being Flat Nos.203 and 232 are of joint ownership of Defendant No.4 and Defendant No.2.
It is seen from the record that the contribution made by the Defendant No.2 so far, is very marginal; whereas, the obligation under the decree of all the Defendants is quite substantial.
Procedural History
Summary Suits No.345 of 1999 and 346 of 1999 were decreed. Execution Applications No.352 of 2002 and 351 of 2002 were filed. Chamber Summons Nos.644 of 2005 and 645 of 2005 were disposed of on 23rd August 2005 directing Defendant No.4 to deposit Rs. 2,19,54,038 by 8th September 2005. Defendant No.4 then filed the present Chamber Summonses to facilitate compliance.
