TaxTMI 
TaxTMI 
2002 (10) TMI 827
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....f had applied for execution of the decree by attachment of the moveable property belonging to and in the possession of the Defendant including the Defendant's right, title and interest in the goodwill of the business together with tenancy rights of the said business as a going concern. The attachment in respect thereof was levied on 12th December, 2000. The Plaintiff, by its advocate's letter dated 13th December, 2000 informed the Applicant of the said decree and the warrant of attachment dated 17th November, 2000 and the fact that the tenantable premises of the Defendant along with their right, title and Interest to use, occupy and possess the same were attached by this Court. The Defendant, by her advocate's letter dated 21st December, 2000 replied to the aforesaid letter. As the contents of the letter from the basis of her case in the present Chamber Summons, it is not necessary to narrate the same at this stage. 4. The Applicant took out the present Chamber Summons on 24th July, 2001. The Applicant's case is that she is a tenant of the said premises. By an agreement dated 1st June, 1970 the Applicant entered into an agreement of leave and licence for 11 mo....
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.... "60 (Section 266) (1) The following property is liable to attachment and sale In execution of a decree, namely, lands, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, bundles, promissory notes, Government Securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, moveable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf : Provided that the following particulars shall not be liable to such attachment or sale, namely : ................. (Kc) the interest of a lessee of a residential building to which the provisions of law for the time being in force relating to control of rents and accommodation apply;" 8. Thus Section 60 of the CPC itself indicates that the interest of a lessee is saleable property in respect of which the lessee has a disposing power. If it were not so, it would not have been necessary in the provi....
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....ebtor. 13. Sections 7(15) and 25 of the 1999 Act, are as follows :-- "7(15)" tenant means any person by whom or on whose account rent is payable for any premises and includes :-- (a) such person,-- (i) who is a tenant, or (ii) who is a deemed tenant, or (iii) who is a sub-tenant as permitted under a contract or by the permission or consent of the landlord, or (iv) who has derived title under a tenant, or (v) to whom interest in premises has been assigned or transferred as permitted. by virtue of, or under the provisions of, any of the repealed Acts : (b) a person who is deemed to be a tenant under Section 25; 25. Certain sub-tenants to become tenants on determination of tenancy; When the interest of a tenant of any premises is determined for any reason, any sub-tenant to whom the premises or any part thereof have been lawfully sublet and such sub-tenancy is subsisting on the date of commencement of this Act or where sub-tenancy is permitted by a contract between the landlord and the tenant, such sub-tenant shall, subject to the provisions of this Act, be deemed to become the tenant....
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....ction 15(1) of 1947 Act, reads as under :-- "15(1) Notwithstanding anything contained in any law but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this Act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his Interest therein and after the date of commencement of the Bombay Rents. Hotel and Lodging House Rates Control(Amendment) Act, 1973, for any tenant to give on licence the whole or part of such premises. Provided that the State Government may by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases or the giving on licence any premises or class of premises and to such extent as may be specified in the notification." For the purposes of the present submission, the provisions of Section 15(1) of 1947 Act are similar to the provisions of Section 26 of 1999 Act. The Division Bench construed Section 15(1) thus :-- "6. Sub-section (1) of Section 15 of the Bombay Rent Act, which is set out hereinabove, inter alia provides that it shall not be lawful for ....
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....espect of the grant, or renewal of a lease of any premises, or for giving his consent to the transfer of a lease to any other person." Once again it must be noted that the expression tenant in Section 56 of 1999 Act would include a deemed tenant Which the Judgment-debtor is. Section 56 of the 1999 Act now permits a tenant to claim or receive any sum or any consideration as a condition for the relinquishment, transfer or assignment of his tenancy of any premises let to him. It also permits the landlord to receive any fine, premium or other like deposit or any consideration in respect of grant, or renewal of a lease of any premises, or for giving his consent to the transfer of a lease to any other person. Section 56 thus now gives a valuable right and creates a further interest in respect of premises let to a tenant. In view of Section 56 of the 1999 Act a fortiori tenancy rights of a tenant constitute saleable property and give tenants a disposing power in respect thereof and the same are therefore, liable to be attached and sold in execution of a decree. 18. In answer to Mr. Naik's submission in respect of Section 56 of the 1999 Act; Mr. Palan invited my attention to J....
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....d also be liable to be attached and sold in "execution of a decree. However, this cannot affect the rights of the landlords/head tenants in any manner, for the rights of a tenant under Section 56 of 1999 Act can only be exercised with the consent of the landlord. In execution of a decree against the tenant/sub-tenant, the Court cannot force an unwilling landlord/head tenant to enter into such an agreement. But if such an agreement is entered into by the landlord or head tenant with a tenant or sub-tenant as the case may be, the consideration received by the latter is liable to be attached and sold. 20. Further, if the landlord and/or the head tenant is willing to enter into an agreement as contemplated in Sections 26 and 56, it would be possible for the executing Court to force the tenant or sub-tenant to enter into an agreement contemplated therein. Needless to say, the executing Court at that stage would not confirm the agreement, sale, assignment or transfer unless it is satisfied that the same was reasonable, fair and genuine. In this regard such a sale would be no different from a sale of any other property. 21. Mr. Palan, relied upon a judgment of this Court in the case....
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....become a tenant of the Applicant and therefore, this Court did not have jurisdiction to entertain the Chamber summons. 22. It is Important to note that the learned Judge dealt with two separate applications in the Chamber summons - one was for quashing the sale that was sanctioned by the Court and other was to raise the attachment. The Plaintiffs contention that the property had been validity sold in execution of a decree, was negatived by the learned Judge. It is however, important to note that the learned Judge did not quash the attachment, which had been levied by the Court, this is clear from paragraph 8, 9 and 10 read with paragraph 18 of the judgment. The learned Judge in paragraphs 8 and 9 dealt with the submission made on behalf of the Plaintiff to the effect that the goodwill and tenancy rights in such premises were saleable property and therefore would be liable to attachment and sale in view of Section 15(1) of the 1947 Act read with the notification issued thereunder permitting transfer and assignment of leasehold interest in the business in cases when the stock-in-trade of a running business is transferred or assigned. The plaintiff sought to support the sale rel....
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.... the effect that the sale of the demised premises as per the order dated 30-3-2001 is contrary to the provisions of Section 26 of the Rent Act, 1999. According to him, Court cannot permit anything to be done which violates the provisions of any Act. In other words, what the defendant could not have done otherwise legally done, cannot be got done through Court. In view of that the submission of Shri Samdani in this behalf is sound and sustainable. Therefore, the same will have to be upheld." 23. However, in paragraph 18 the learned Judge ordered as under :-- " 18. In the result, the Chamber summons is made absolute in terms of prayer Clause (b) subject to the deletion of the bracketed portion which reads "& quash attachment If any levied thereon on 23rd November, 2000 or any other date be raised". It is clarified that the attachment of the demised premises will continue and that the plaintiff/decree holder will be at liberty to follow the pre scribed procedure for sale of the demised premises." Thus the learned Judge set-aside the sale but did not raise the attachment. The Judgment is therefore of no assistance to Mr. Palan. In the present case, the Court has not orde....