Issue No.5 : It is the case of the Plaintiffs that Champaklal had made a part payment of Rs.25,000/- to Defendant No.1.
The Plaintiff has produced copy of the letter dated 27th March 1985 at Exhibit P-4 and copy of the cheque dated 27th March 1985 for a sum of Rs.20,000/- was at Exhibit P-5. The Corporation had disputed the date on which the said letter was served upon the Corporation. However, perusal of the office copy of letter dated 27th March 1985 i.e. Exhibit P-4, it is clear that the Corporation did receive the cheque for Rs. 20,000/-. It is true that the Corporation has not deposited the said cheque and proceeded to auction the suit property as indicated earlier. Fact remains that the Plaintiff made part payment of Rs.20,000/- and to that extent, Issue No.5 is required to be answered in the affirmative. What is the effect of such a payment of Rs.20,000/- by cheque shall be discussed while giving reasons for Issue No.4.
13. Now, the question remains as regards deposit of cheque of Rs.20,000/- by Mr. Champaklal in the Office of the Corporation on 27th March 1985 i.e. 2 days prior to the day on which the auction was fixed. Perusal of Exhibit P-4 would go to show that the cheque was deposited on 27th March 1985. It is true that the Corporation did not deposit the cheque for encashment. In my view that would not make a difference. The warrant of attachment was levied for a sum of Rs.27,000/- and odd. The penalty to the extent of Rs.9,000/- and odd was imposed in terms of order dated 21st November 1984 at Exhibit P-3. This would mean that as on 27th March 1985 certainly, an amount more than Rs.20,000/- was due and payable. If at all original Plaintiff Champaklal was interested in protecting the property, it was necessary for him to pay may be by cheque the whole amount which was due and payable in terms of the warrant of attachment and order regarding a payment of penalty. Even if it is accepted that by depositing cheque for Rs.20,000/- on 27.3.1985, Champaklal had paid a part of the amount i.e. Rs.20,000/-, surely, the Corporation was entitled to sell the property for recovery of the balance of amount. Even if it is accepted for the moment that the Corporation did receive a sum of Rs.20,000/- in terms of cheque dated 27th March 1985, the property came to be sold for the recovery of balance of the taxes and dues payable to the Corporation. The Corporation was not obliged to stay the auction merely because the part payment was made. This is so because provisions of sub-Section 4 of Section 206 of Bombay Municipal Corporation Act require that all dues and costs are to be paid by a defaulter before a sale is effected.
Reading of Section 206(4) of said Act, it is clear that attachment can be removed if all dues are paid before sale.Even if it is accepted that Champaklal had paid a sum of Rs. 20,000/-, it was part payment only and therefore, the argument advanced by the learned Counsel Mr. Pandya that Mr. Champaklal ought to have been given benefit of Section 206(4) of the said Act cannot be accepted.
14. For the reasons mentioned aforesaid, Issue No.4 is answered in the negative.
BOMBAY HIGH COURT
Pistabai Champaklal shah(Jain) V Municipal Corporation of Greater Bombay on 8 September, 2010
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