1OS 164-05 & OS 64-09
BEFORE THE COURT OF THE II ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT AT ; HYDERABAD
WEDNESDAY DATED THIS THE 10TH DAY OF MARCH, 2021
Present : Smt Koka Radha Devi,
III Addl. Chief Judge,
FAC II Addl. Chief JUDGE
OS No. 164 of 2005
&
OS No.64 of 2009
O.S.No.164 of 2005
Between:
1. Madam Canisia Ceizar, aged about 51 years, Divorce,Occ:Household, R/o.Aigen Voglhub Austria, Rep., by her GPA
2. Ali Asghar Ceizar, S/o.Hussain Ali Ceizar, aged about 59 years, Occ:Business, Resident of H.No.35855, Himayath Nagar, Hyderguda, Hyderabad. (Amended carried out as per orders in IA No.569 of 2007, dated 0211 2011)
...Plaintiffs
AND
1. M. Venkat Reddy, S/o.not known to the plaintiff,Major, Occ:Business,
2. B. Narsing Rao, S/o.late Govind Rao, aged Major, Occ:Business,
3. Smt. B. Janaki, W/o.B. Narsing, aged Major, Occ:Business
4. B. Raghuveer, S/o.B. Narsing Rao,aged Major, Occ:Business,
5. B. Nishita, D/o.B. Narsing Rao, aged Major, Occ:Business, (Defendants No.1 to 5 are all the residents of House No.35576, Himayathnagar, Hyderabad500 029)
6. Mushtaq Hussain Khan, S/o.late Mohd. Hussain Khan aged about 60 years, USA National Domiciled of RTI Box 115A Winnabow, NC 28479 USA.
7. Mukhtar Hussain Khan, S/o.late Mohd. Hussain Khan aged about 63 years, Swiss National Domiciled of 15, Rue Bachellin 2000 Nenachatel,Switzerland.
8. Abid Hussain Khan, S/o.late Mohd. Hussain Khan aged about 58 years, Swiss National Domiciled of 15, Rue Bachellin 2000Nenachatel, Switzerland.
9. Mahmood Hussain Khan, S/o.late Mohd. Hussain Khan aged about 59 years, Swiss National Domiciled of Perroset, 1036 Sullen, Switzerland.
10. Altaf Hussain Khan, S/o.late Mohd. Hussain Khan aged about 56 years, Indian National Domicile of, 1136 Bussy – Chardonnay, Switzerland.
2OS 164-05 & OS 64-09
11. J. Sanjeeva Reddy, S/o.Hanumantha Reddy, aged 65 years, Occ:Retd., Employee,
12. J. Vara Laxmi, W/o.Sanjeeva Reddy, aged 57 years, Occ:Housewife,
13. G. Jyothsna Reddy, W/o.Vidyadhar Reddy, aged 36 years, Occ: Housewife, (All R/o.H.No.82293/K/89, Kamalapuri Colony,PhaseIII, Hyderabad)
14. B. Arjun Reddy, S/o.C.K. Reddy, (Expired dated 13062013) aged about 62 years, Occ:Business, H.No.35576, Himayathnagar,
15. P. Kamala, W/o.Sudhakar Reddy, aged about 58 years, Occ: Housewife ,R/o.35167/B, Narayanguda, Hyderabad.
16. B. Anoopama, W/o.B. Krishna Reddy, aged about 35 years, Occ: Housewife, R/o.35576, Himayathnagar, Hyderabad.
17. Smt. B. Kalavathi, W/o.late Arjun Reddy, aged 59 years, Occ:Household, R/o.35576, Himayathnagar, Hyderabad.
18. Dr. Sucharitha, D/o.late Arjun Reddy, aged 44 years, Occ:Doctor MBBS R/o.Flat No.601, sharada Edifice, H.No.35590, Himayathnagar, Hyderabad
19. Dr. B. Krishna Reddy, S/o.late Arjun Reddy, aged 44 years, Occ:Doctor MBBS, R/o.115421/1, Lakdikapool, Hyderabad.
20. Smt. Rajitha, D/o.late Arjun Reddy, aged 41 years, Occ:Housewife, R/o.Flat No.408, Green Park Residency, B.K.Guda, SR Nagar, Hyderabad.
21. Smt. Sreelatha, D/o.late Arjun Reddy, aged 40 years, Occ: Housewife, R/o.Plot No.8, Sai Enclave, H.No.82704/21, Road No.12, Banjara Hills, Hyderabad (Amended carried out D.17 to 21 for D.14 as per orders in IA No.216 of 2013, dated 13062013
22. Mrs. Martha Sink Khan, W/o.late Dr. Mushtaq Hussain Khan, aged Major, Occ:Household, R/o.143, Tarpon Drive, Holden Beach, NC 28479, USA
23. Dr. Phillip David Khan, S/o.late Mushtaq Hussain Khan, aged 35 years, Occ: Doctor Surgeon – Plastic Surgery, C/o.143, Tarpon Drive, Holden Beach NC28479. (Defendants No.22 to 23 impleaded as per USA orders in IA No.216 of 2015,
dated 31012015)
24. Vasireddy Educational Society (Slate the School), Rep., by President Sri V.S.Amarnath Flat No.405, Subham Apartments, Gold Spot, Ameerpet, HyderabadT.S. (Defendant No.24 impleaded as per orders in Orders in IA No.108 of 2014,
dated 20062015)
...Respondents/Defendants
3OS 164-05 & OS 64-09
O.S.No.64 of 2009
Between
1. Madame Canisia Ceizar, Divorcee, aged about 66 years, Occ:Household, R/o.Aigen Voglhub, Austria, Rep., by her GPA Mr.Ali Asghar Ceizar, S/o.late Hussain Ali Ceizar, aged about 55 years, Occ:Business, Permanent, R/o.H.No.35855, Hyderguda, Hyderabad,
A.P.500 029....Plaintiff No.1
2. Ali Asghar Ceizar, S/o.Hussain Ali Ceizar,aged about 69 years, Occ: Consultant, Resident of H.No.35855, Hyderguda, Hyderabad500 029 T.S. (Amended carried out, as per Orders in IA No.178 of 2015, dated 15 122017)
...Plaintiff No.2
AND
1. Mushtaq Hussain Khan, S/o.late Mohd. Hussain Khan aged about 60 years, USA National Domiciled of RTI Box 115A Winnabow, NC 28479 USA.
2. Mukhtar Hussain Khan, S/o.late Mohd. Hussain Khan aged about 65 years, Swiss National Domiciled of 7Cosson, CH1326 Juriens, Switzerland.
3. Abid Hussain Khan, S/o.late Mohd. Hussain Khan aged about 60 years, USA Domiciled C/o.7 Cosson, CH1326 Juriens, Switzerland.
4. Mahmood Hussain Khan, S/o.late Mohd. Hussain Khan aged about 61 years, Swiss National Domiciled of Perroset, 1036 Sullens, Switzerland.
5. Altaf Hussain Khan, S/o.late Mohd. Hussain Khan aged about 58 years, Indian National Domicile of CH1136, Bussy – Chardonnay, Switzerland.
...Respondents and Defendants
6. Mr. Martha Sink Khan, W/o.late Dr. Mushtaq Hussain Khan, aged Major, Occ:Household, R/o.143, Tarpon Drive, Holden Beach, NC 28479 – U.S.A. (Defendants No.6 and 7 impleaded as per orders in IA No.1746 of 2015, dated 14122015)
7. Dr. Phillip David Khan, S/o.late Mushtaq Hussain Khan, aged 35 years, Occ:Doctor Surgeon – Plastic Surgery Temple, Texas – U.S.A. 143 Tarpon Drive, Holden Beach NC28479USA
...Respondents and Defendants
These suits are coming on this day before me for final hearing in the presence of Sri Ceizar Ali Asghar, Party in person for the plaintiffs in both the suits and defendant Nos. 1 to 5 is set exparte and defendant No.6 died and of Sri Mohd. Mazhar Ali, Advocate for the defendant Nos. 6 to 10 and of 4OS 164-05 & OS 64-09
Sri Mohan Rao, Advocate for defendant Nos. 11 to 21 and Sri K Kondala Rao,
Advocate for defendant No.24 though filed vakalath but did not file written statement and set exparte and defendant Nos. 22 & 23 set exparte in OS
No. 164/05 and in OS No. 64/2009 the first defendant died and Sri Md.
Mazhar Ali, Advocate for Defendant No.2, 4 and 6 and defendant No.3,5 & 7 set exparte and the matter having stood over for consideration and this court delivered the following :
COMMON JUDGMENT
O.S.No.164 of 2005
1)The suit is filed by the plaintiff i.e.,Madam Canisia Ceizar represented by her GPA Ali Asghar Ceizar against the defendants in respect of the schedule property located in Chapel Road, Hyderabad as shown in the schedule of property for passing of final decree in accordance with the certificate issued by Swiss Justice in preliminary decree partition the schedule property in 5 shares against defendant No.6 to 10 and allot 22.5% share out of suit schedule property and to deliver the same and also the arrears of rent and other reliefs.
2)The suit in OS No.64 of 2009 is filed by Madam Canisia Ceizar represented by GPA Ali Asghar Ceizar against the defendants in respect of the property located in Himayath Nagar, Hyderabad as shown in the schedule property for partition of suit property into 5 shares and to allot one share to the plaintiffs and to pass final decree for delivery of the property for deposit of arrears of rents and other reliefs against defendant
Nos. 1 to 7.
5OS 164-05 & OS 64-09
3.In both the suits, plaintiff No.2 as GPA holder of Madam Canisia
Ceizar plaintiff No.1 and as plaintiff No.2 personally Ali Asghar Ceizar has made his representations before the Court.
4. He represented the cases as party in person after his previous counsel did not conduct his case properly. OS No. 64 of 2009 is transferred from the court of XXVI Addl. Chief Judge, CCC, Hyderabad to this court, there after this case was transferred to XIII ACJ. Earlier the suit OS no. 164/05 more times transferred to other courts. Finally on the representation of Ali Asgar
Ceizar party in person to the Hon’ble High Court, there was a direction to this court through the Hon’ble Chief Judge in Dis No. 1786/2020.
Accordingly the case was suo moto advanced for early disposal by Incharge
Court i.e III Addl. Chief Judge, City Civil Court, Hyderabad presided over me.
6)OS No. 164 of 2005 is the first suit filed by the plaintiff Madam
Canisia Ceizar represented GPA Ali Asgar Ceizar. Thereafter the plaint was amended adding (Plaintiff No.2 Ali Asgar Ceizar) and also adding the other defendants and the valuation and also prayer portion and also paragraph f to I .
7)The plaint averments in OS No. 164 of 2005 are that the plaintiff No.1 a Swiss National domiciles in Austria has obtained an order in default in payment on 17.06.1997 which has been further added to 04.08.1997 against
Mr Altaf Hussain Khan (D.10). When there was default in payment on the part of the defendant No.10, an order of attachment dt. 05.11.1997 has been passed by the office of the Legal Proceedings of Morges, Switzarland. The attached property one part of the common property to an extent of 22.5%.
6OS 164-05 & OS 64-09
8)The defendant No.10 has contested the legality of the attachment averring that he has given his share to his advocate in India for payment of his fees. The attachment has been confirmed on 04.12.1997 rejecting all the objections. The said confirmation order dt. 04.12.1997 is covering two buildings i.e 59198, Chapel Road and 3619 at Himayatnagar, Hyderabad.
The present proceedings are with regard to H.No.59186 i.e suit schedule property. Defendant No.6,7,8 and 10 have filed an appeal on 15.12.1997
before the Court of District Morges. Switzerland. On 08.01.1998 the
defendant No.9 Mahmood Hussain Khan has filed a separate appeal contesting the rights of all his brothers. The Court of District Morges, Swiss on 25.11.1998 rejected the appeal of the defendant No.9. On the same date the appeal filed by four brothers was also rejected. The defendant No.9 has not chosen to file any appeal against the said order dt. 28.01.1998. The appeal preferred by defendant No.8 was rejected by the court of Bankruptcy of the legal proceedings, Switzerland on 19.05.1999. The plaintiff was granted a decree on 19.05.1999 and the decree has become final as there was no appeal to the Supreme Court of Switzerland. The defendant Nos. 6 to 10 have raised many pleas in installment wise before the courts in
Switzerland. The supreme Court (Tribunal Federal) Switzerland has finally upheld the right of the plaintiff No.1. On 07.09.2000 the office of
Proceedings of Bankruptcy of District Morges sent a letter to all the defendants through RPAD the second defendant No.2 inviting them for conciliation on 18.10.2000. The sale notice is issued stating that 22.5% share of the 10th defendant would be sold on 10.09.2004. The time of sale was fixed at 15 hours and the sale of place of Morges Judicial Auction Hall of the office of Prosecution. The sale was conducted and the plaintiff was held to be the highest bidder by paying 70,000 Swiss Franks. The sale was 7OS 164-05 & OS 64-09 also confirmed and the sale certificate has been issued in favour of the plaintiff in year 2004 The bankruptcy of defendant No.10 has not been so far admitted. The plaintiff averred in paras f to I as stated below.
(f). The plaintiff respectfully submitted that the plaintiff No.1 Madame
Canisia Ceizar, assigned her interest suit schedule properties in favour of plaintiff No.2 herein, having received Rs.90,000/ and Rs.60,0000/ and executed an assignment dated 09072007 in Switzerland, as per the procedure prevailing under the law of Switzerland. The said transfer through assignment deed dated 09072007, was confirmed, and attested by the Judicial Authorities. Further the transfer was admitted and accepted by all the defendants defendants No.6 to 10 herein. Who lives and work under
Swiss Jurisdiction, the same was not contested and not in dispute. Against this fact, Indian Lawyer made havoc. to extend by shooting on his own legs with respect ot assignment and transfer by plaintiff No2. To plaintif No.1 herein. By virtue of this assignment deed, the plaintiff No.2 acquired the rights in the suit schedule properties complied of two objects, 1 and 2, therefore plaintiff No.2 has every right to claim the rights in respect of the plaint schedule property, the object No.1 herein to extent of 22.5% share in
No.59186, Chapel Road, Hyderabad, T.S. Hyderabad500 029 TS. The plaintiff No.2 herein filed the assignment deed in 2007, for kind perusal of this Hon’ble Court, which allowed the petition under IA No.569 of 2007,
dated 02112011.
(g) "It is pertinent to mention that, the plaintiff No.2, formed complained
before Public Prosecutor, District of Morges on 18112011 against
Insolvent/Judgment Debtor/D5 (Altaf H.Khan) and his wife Cecile Hussain
Khan for stealing plaintiffs acquired property in India, the investigation directed against them. The convicted person hide parts of their assets actually belonging to plaintiffs herein, and in subsequent proceedings in
PE13.021960MMR, dated 25112014, before The Chamber of Criminal
Appeal (High Court for Criminal Matters – State Vaud – Switzerland) indicted the insolvent Defendant No.5 herein, admitted before the Tribunal through his Learned Counsel, Dr. Francois BESSE, dated 22102014 stating that “Altaf hussain Khan did not diminished any assets and caused no damage to 8OS 164-05 & OS 64-09 creditors. The fact that the recovery, in India, the debt acquired by auction in
Switzerland has caused difficulties to Mr.CEIZAR, and no longer the responsibility of Swiss authorities, but the Indian authorities. He cannot be accused of having concealed any assets of CEIZAR Ali Asghar, (P2 herein), that should be subject to the procedure of seizure”.
"Recalling withdiebard attempts in Squared Pounding convincing Language, the insolvent defendant No.10 assured Justice through his Admission of 22 102014, that he already transferred the owner of his suit schedule properties in India to Ceizar Ali Asghar Plaintiff No.2 herein”. (Ex.A.45, page
Sub Clause b, Para No.2); (Ex.A.45, page4, SubClause d); (Ex.A.45 Page5,
SubClause I, Para No.5); (Ex.A.45, Page6, SubClauseii, Para No.3)
(h) The plaintiffs further submit that’ "Defendant No.10 stated before the Hon’ble Procurer, District of La Cote,
Switzerland, in proceedings No.PE13.021960MMR dated 10032015 that, he had a building in India, and collection rents, and further stating that he did not bring anything from India, that he is not aware of properties situation in India, since it is managed by his Indian Advocate, and answering to Procurer pronounced the name of his Indian Counsel as Mazhar Ali, who pay charges about 60% of rental income (which do not Exist, and comes under the responsibility of tenant), the rest is used to pay my lawyer, and assume train of life when I am in India. Today, Defendant No.10 is under
Criminal Trial, which already started against him on 19092018 by Tribunal of Police, La Cote at Nyon, Switzerland, under Case Number PE13.021960
ERA – for the reason of fraud and enjoying the rents unlawfully in property of plaintiff No.2 in India”.
(I)"Insolvent Defendant No.10 confirmed before Insolvency Court. Order
No.FA13.018452, dated 21022014 in paying his Indian Advocate around
CHF10’000 – (Ten Thousand Swiss Frac) which is IR.s 700’000per year, from plaintiffs properly in rent, and all the costs related to the building. A simple arithmetic expose that, Indian Advocate has swallowed and misappropriated / by disappearing over 90% of the rent, and rest he spends for D10, living and entertainment herein. The feverish Resistance and
Obstruction to this Hon’ble Court of today, in blocking this suit for 15 years, with fantasist laws of jungle, extortion is exposed on clients signing 9OS 164-05 & OS 64-09 contradicting false statement before this Hon’ble Court, same time putting
Extoration against plaintiffs with defamatory allegations of playing Fraud on this Hon’ble Court and abusing by imposing as an advocate on the Learned
Presiding Office to mislead Hon’ble Court and abusing by imposing as on advocate on the Learned Presiding Office to mislead Hon’ble Court.
Likewise, several attempts to abort this suit on file is recorded and justified in evidence, that every counter in statement, or in affidavit on file, without
Exaggeration and Exception is False, to which defendant No.10 will take second imprisonment for fraud in Bankruptcy and Fraud in Seizure. Finally, the genius plan of Mazhar Ali (Adv.1212) happily rubbing his hands and laughing in middle on this Hon’ble Court to assist him to benefit all these decades (Ex A.39, page 22, Last para of art (b).”
(j)“Defendant No.10 facing criminal trial for second time before Swiss
Justice for stealing plaintiffs property in Rent. Instruction on criminal file of
Switzerland and admissions of culprit Defendant No.10, expose the facial form in all dimension on this mega fraud, that this Hon’ble Court is paralyzed to perform under Resistance of defendant No.9 and 10 along with their advocate. Total rent of plaintiffs share of 22.5% since 1994 to end of 2018, that is 24 years, in average mounts to IRs 72’500/ per month, in capital/principal amount net without interest. That equals to IRs 20’880’00. that defendant No.10 have stolen/wasted/misappropriated plaintiffs property. This Hon’ble Court was in Cognizance since 2006, of
Fraud committed and irregularity of justice, that mislead to enforce under IA
No.267 of 2010, was dismissed to miscarraige justice, that Defendant No.10 is convicted today for the above miscarriage of justice. Further, knowingly in recent petition to protect plaintiffs proper under IA No.244 of 2017, was also dismissed to miscarriage of justice. Today proven Fraud, with trial of defendant No.10 is on the table of this Hon’ble Court, and law under Hon’ble
Supreme Court directs to all decision in past under Fraud are NON EST.
Swiss justice through settled law declared this matter in resjudicata, that plaintiffs are unconditionally owner by acquiring suit schedule properties in
Court Auction, and consider the rents belong to plaintiffs. The OP office made two attempts to seize Indian Bank Account No.62179986714 with
State Bank of Hyderabad, and protect the interest of plaintiffs herein. They
pronounced and consider the rent were stolen by defendant No.10, although
10OS 164-05 & OS 64-09 it is credited in the account bearing his name along with his wife”.
Defendant No.10 in Estoppel under Section 115 and Section 11 of Evidence
Act, 1872 to claim or to give any statement before this Hon’ble Court”.
K)I respectfully expose the Importance on legal status of defendant
No.5/judgment debtor, since 1997 to this day 12112018.
"Convict defendant No.5/Judgment Debtor was put to trial for second time recently by Swiss Tribunal of Police, Under PE13.021960ERA on 1909 2018, on offences of Fraudulent Bankruptcy and Fraud in Seizure, in stealing plaintiffs property under custody of this Hon’ble Court. The convict
Defendant No.10, continue to maintain his insolvability to this day 1012 2018 since 05111997, and Strictly comes under Act of Default in Payment (defaut de Bien) lives on the efforts of his wife, and AVS (Swiss Old Age
Pension) not sizable. Defendant No.5 was illadvise to stand and contest unlawfully before this Hon’ble Court and liable to prosecution in PURIERY for false statement, false claim and false pleadings before this Hon’ble Court.
l)"Plaintiffs visited India 55 (fiftyfive) times from Switzerland to pursue the above proceedings since 05112004 to 10122018, and stayed in total 1347 days to pursue, and victim of this Fraud. Plaintiffs take an average
Airway Bill of Frs 1200/ and Frs.100/ per day (IRs. 84’000/ and
IRs.7’000/ per day) that total amount comes to Frs 480300/ (IRs 33’621’000/) in damages caused by defendants No.9 and 10 should be compensated to plaintiffs herein.
Therefore the present suit.
9)The defendant Nos. 1 to 5 are exparte to the proceedings.
10)The 6th defendant died after filing of the written statement and his legal representatives are added as defendant Nos. 22 and 23 as per orders in
IA No. 261/2015 dt. 31.01.2015 and defendant Nos. 22 and 23 are not filed
valakath and written statement. The defendant No.7 to defendant Nos. 10 filed written statement, defendant No.9 also filed additional written 11OS 164-05 & OS 64-09 statement and adoption memo filed by defendant Nos. 6 to 8 and 10. The defendant No.11, 14,15 and 16 filed written statement and the same is adopted by defendant Nos. 12 and 13. The defendant No.17 to 21 have not filed any written statement. The defendant No.24 (tenant) has not filed any written statement. Thus the contesting defendants are D6 to D.10 and D.11 to D.21 in this suit.
11.In the written statement filed by the defendant No.6 he submitted that the suit is not maintainable which is filed basing on the Section 13 of the
CPC as alleged sale certificate/auction letters and all other proceedings cannot be in respect of an immovable property situated in India. The alleged orders of proceedings are not passed by a competent court and not on merits obtained in accordance with the law of Transfer of Property Act. The disputes and transfer to be adjudicated only by Indian Courts and no foreign court do so and as such the provision Section 13 of CPC is not applicable to the present suit. The plaintiff is not Indian National and she cannot acquire any immovable property in India without obtaining permission from the
Reserve Bank of India and Union Govt. of India. The first plaintiff is a divorcee, she ought to have mentioned her father’s name and is not proper person for the adjudication of the case. The alleged GPA holder is none other than the husband of the 1st plaintiff as in the suit OS No.361 of 1994 pending on the file of I Senior Civil Judge, City Civil Court, Hyderabad between the 1st plaintiff and the defendant No.10. The alleged GPA has also no right to file the above suit as she is not an Indian Citizen and being a foreigner without disclosing his identity and other particulars as well as the alleged GPA is not a resident of India for any purpose. The alleged GPA
Holder be directed to produce his identity and residential proof in connection 12OS 164-05 & OS 64-09 to his false statement of being a permanent R/o H.No.35855, Hyderguda,
Hyderabad as shown in the cause title. The alleged GPA holder of the first plaintiff is none other than the son of Uterine sister of the defendant Nos. 6 to 10. The plaintiff filed the suit in OS No. 361 of 1994 on the file of the I
Senior Civil Judge, City Civil Court, Hyderabad for recovery of
Rs.50,00,000/ against the defendant No.10 since they had business relations and did a contract of construction I.e development of Plot of Land
No.767 situated at rue du Lanco, 15e, in the commune of Renens,
Switzerland. They had differences and in pursuance of the said transactions the plaintiff filed suit in OS No.361 of 1994. In the said suit the plaintiff filed a false affidavit vide IA No. 500 of 1994 in OS No. 361 of 1994 vide exparte orders dt.05.04.1994 and obtained an attachment before Judgment in respect of the properties like below:
a) Undivided half share of the commercial complex consisting of three stories building with mulgies, constructed on a premises admeasuring 1800 sq. yards being Municipal No.59183 (later corrected 59186) situated at Gunfoundry, Beside S.B.H. Head Office, Hyderabad.
b) Undivided 1/5th share of the double Storied building located on a premises admeasuring 3000 sq. yards bearing Municipal No.3619, situated at Himayathnagar, Hyderabad.
12)The defendant No.10 (Altaf Hussain Khan) in the present suit filed the written statement in OS No. 361 of 1994 that he is the joint owner of the item No.1 of the schedule of the said I.A. and the other defendants 7 to 9 have nothing to do with the said property and he has also stated that the
Item No.2 property bearing H No.3619, situated at Himayath Nagar,
Hyderabad is neither owner nor possessed by him. It is further stated that the property is owned and possessed by the defendant Nos. 8 i.e Abid 13OS 164-05 & OS 64-09
Hussain Khan & 9 i.e Mohd. Hussain Khan herein. The plaintiff taken the said exparte orders and filed in the Swiss Courts stating that the said properties are under attachment. Having come to know the same from the said proceedings in Switzerland, the defendant No.9 ie. Mohd. Hussain Khan filed proceedings in the Swiss court to claim his property seeking release of the same and the same is contested by the plaintiff and the claim of the defendant No.9 was rejected. In the appeal filed the 9th defendant was directed to approach Indian Courts to get the orders dt. 05.04.1994 nullified of modified by the same court to protect his property at Himayathnagar,
Hyderabad. The 9th defendant also filed a claim petition IA No. 168 of 1999 in OS No. 361 of 1994 for release of item No.2 of the attached property.
Another application filed by the defendant No.8 for the half share vide IA
No.949 of 1999 in OS No.361 of 1994. Both the defendants were allowed after due contest. There was no appeal or revision is preferred. Finally by the orders in IA No.1189 of 2002 in OS No. 361 of 1994 the property bearing house No.3619 is released and the modified order of attachment is issued.
The 9th defendant has filed a suit OS No.390 of 2004 for Rs.25,00,000/ as damages in respect of the false & defamatory statements and illegal attachments based on the false and baseless affidavits filed in OS No.361 of 1994. The 10th defendant Altaf Hussain Khan had a contractual relationship with the plaintiff in respect of the development of the immovable property in
Switzerland by obtaining bank loan in Switzerland. The plaintiff herein as a joint owner and partner of the said agreement has claimed certain amounts and in pursuance of the same several properties of the said defendant have been sold in Switzerland including the building constructed und the said development agreement. The defendant had a money claim in the form of attachment against D.10 in OS No. 361 of 1994 and the said attachment is 14OS 164-05 & OS 64-09 still in force and the suit is still pending adjudication. The suit is based on
Sale Certificate issued by Switzerland authority is illegal in valid and not enforceable, The alleged attachment of Switzerland courts or the sale by the party is illegal and nonest. The Section 13 of the Code of Civil Procedure is in respect of judgment of foreign courts and its validity. The suit is based on the sale certificate issued by Switzerland it was illegal which was unenforceable. The property is under attachment by I Senior Civil Judge,
City Civil Court, Hyderabad. As the properties situated in Indian and governed by the Transfer of Property Act and these properties can neither be attached or sold in any foreign country or by any foreign authorities. The defendant No.6 has further submitted that the plaintiff intentionally mentioned incorrect address of defendant No.8 and description of the plaintiff being in complete. The appeals of the legal proceedings of Morges do not have any jurisdiction to attach any immovable property or its individual share which is situated in India as such the said attachment dt,05.11.1997 is illegal.
13)It is true that the defendant No.10 has to make certain amounts as stated above and in pursuance of the same the said suit OS No.361 of 1994 is filed by the plaintiff and it is pending. The property bearing No. 59186 (Abid’s property) was originally jointly owned by the defendant No.10 (Altaf
Hussain Khan) and this defendant Mustaf Hussain Khan and they have executed an agreement of development with one B. Arjun Reddy on 45% :
55% shares for owner and developers respectively. As such the 10th defendant has got 22.5% share in the property. The defined shares of the parties, owners and builder were identified and by metes and bounds they have divided their respective shares and they are enjoying the same the date 15OS 164-05 & OS 64-09 of completion of the construction of the said building. The defendant Nos. 7 to 9 have purchased the certain portions in the suit schedule property from the builder by paying valuable consideration under registered sale deeds and they have nothing to do with the share of this defendant No.6 or 10 in the suit schedule property. The portions of the defendant Nos. 7 to 9 are clearly identified and they are stated in their sales deeds with metes and bounds an they are receiving the rents for their separate portions. As such the suit for partition is not maintainable. The defendant No.9 (Mahmood Hussain Khan) filed an appeal in Switzerland courts to raise attachment in respect of his property of Himayathnagar, Hyderabad and as per the directions given he approached I Senior Civil Judge, CCC, Hyderabad filed petitions and the attachment is raised. The decree holder cannot bid for the attached property, the bid has to be with the third parties When the sale of the property issued by the Morges Judicial Auction Hall and sale certificate was issued in respect of the property situated in India by Swiss courts. As the suit property is situated within the jurisdiction of this court but the alleged right of plaintiff not being adjudicated by the court or the suit document not being issued as per laws governing the transfer of property in India, the suit is not maintainable. The court fee is not properly paid and the provisions under Section 34(2) of A.P.C.F & S.V Act does not apply to the present suit;
The claim of mense profits being against the 10th defendant and other defendants are not concerned with the said relief. There is no cause of action to the plaintiff to file the suit. The property is still under attachment of a competent court and the alleged sale by the Swiss Authority is illegal.
Therefore, prayed to dismiss the suit by awarding the costs.
16OS 164-05 & OS 64-09
14)The written statement filed by defendant No.10 is that the suit is based on Section 13 of the CPC and it is hit by all the sub clauses of the said section. The alleged orders and proceedings are not passed by the competent court obtained by fraud and they are obtained by law of Transfer of Property Act which is the only law which governs all transfer of all the immovable properties in India and the disputes and transfer to be adjudicated only by Indian courts and no foreign courts have jurisdiction to do so. The 1st plaintiff is not an Indian National and she cannot acquire any immovable property in India without obtaining permission from the Reserve
Bank of India and Union Gov. of India. The alleged GPA holder is none other than the husband of the 1st plaintiff as in the suit OS No. 361 of 1994 on the file of I Senior Civil Judge, City Civil Court, Hyderabad between the 1st plaintiff and this defendant, she is still shows as the wife of the alleged GPA
Holder. The alleged GPA holder is the husband of plaintiff or not, the alleged
GPA holder has no right to file the above suit, since he is not an Indian citizen and being a foreigner without disclosing his identity and other particulars as well as the alleged GPA is not a resident of India for any purpose. The alleged GPA holder be asked to produce his identity and residential prof in connection to his false statement of being a permanent
R/o H No. 35855, Hyderguda, Hyderabad. Since the GPA holder is not being competent to file the above suit and the suit not being instituted by proper parties, the plaint itself is liable to be rejected. The mense profits cannot be claimed by the plaintiffs. In fact the plaintiffs have to claim a reasonable and the same shall be adjudicated as maximum claim of the plaintiff. The other pleas taken in the written statement are similar to that of the written statement of the defendant No.6.
17OS 164-05 & OS 64-09 15The defendant No.7 to 9 filed the common written statement which is similar to that of written statement filed by the defendant No.6. According to their written statement they were the purchasers of the property from 55% builders for valuable sale consideration which is identifiable. Therefore, prayed to dismiss the suit.
16)The 11th defendant filed written statement which is adopted by defendant Nos. 12 & 13 wherein he stated that he is not at all party in all the proceedings and the orders referred to in paras under reply. So the defendant is not bound by the same. The 1st plaintiff has to prove the allegations that he became owner to the extent of 22.5% undivided share of defendant No.10 in the suit schedule property, by virtue of sale certificate
dt. 27.09.2004 issued by the court of Swiss in favour of the 1st plaintiff. The
property bearing M.No.59186 Chapal Road, Gounfoundry, Hyderabad was owned by defendant Nos. 6 & 10 by virtue of registered sale deed doc
No.2993/B1/61 dt.30.10.1961. The defendant Nos.6 & 10 entered into development agreement dt. 01.08.1992 with D.14 for construction of a commercial complex. Under the said development agreement dt. 01.08.1992 the owners (D.6 &.D.10) and builder (D.14) agreed to share the built up area in the ratio of 45: 55 respectively. On 01.08.1992, the defendant No.6 & 10 and 14 have also entered into a separate agreement specifying the built up area, parking and terrace areas to be shared in the complex. In pursuance of the development agreement, the defendant No.14 constructed a commercial complex in the suit property and handed over 45% of the built up area to the defendant Nos. 6 & 10 and retained to himself 55% of the built up area. The defendant No.14 also sold his share in favour of the 18OS 164-05 & OS 64-09 defendant Nos.2 to 5 under sale deeds and also joint parking space in thesp year 1994 as mentioned in para 6 of the written statement of the defendant
No.11. The defendant No.11 to 13 purchased commercial space and undivided share, the third defendant also purchased from defendant No.5, defendant Nos. 11 to 13 purchased defendant Nos. 2 to 5 parking space as stated in the para 7 of the written statement (i.e defendant No.11 purchased from defendant No.2, Defendant No.12 purchased from defendant Nos. 3 & 4 and D.13 purchased from defendant No.5) and thereby defendant Nos. 11 to 13 became absolute owner and possessor of the commercial space bearing
No. F1 to F4 in the first floor of ‘C’ block and parking place in C9 in the cellar along with undivided share in the landed property. The plaintiff has no right to claim any share of the schedule property on the basis of sale certificate dt. 27.09.2004 on the courts of Switzerland. The right, title and interest of these defendants remanded unaffected by the said sale certificate in respect of 22.5% undivided share of defendant No. 10 in the suit property.
The 1st plaintiff is estopped to claim share or interest in the suit property as the transaction in favour of the defendant No. 11 to 13 and their vendors were effected very much to the plaintiffs knowledge. Alternatively 22.5% undivided share which the plaintiff got by virtue of sale certificate dt.27.09.2004 has to be worked out from the built up area fell share to defendant No.10 as satisfied in the agreements dt. 01.08.1992.
17)The defendant No.14 also filed written statement there was development agreement between defendant Nos.6, 10 and 14 on 01.08.1992.
Under which 45% share to the owner and 55% share to the developer. Out of the builder share defendant No.14 sold some land as mentioned in para 5 in respect of Chapal Road, Gunfoundry, Abids, Hyderabad. Therefore, the 19OS 164-05 & OS 64-09 plaintiff is estopped to claim share or interest in the suit schedule property the remedies of the 1st plaintiff can be worked out from the built up area fell to the share of the defendant No.10 as specified to the agreement dt.01.08.1992.
18)The defendant No.15 filed written statement he stated that he along with defendant No.1 herein, Smt B.Sattemma and B. Sabitha have purchased from the defendant No.14 under registered sale deeds vide document No.1628/1993 and thereafter the first defendant, B. Sattemma and B.Sabitha released their share in favour of the defendant No.15 under a release deed bearing No. 3951/2003 dt.24.12.2003 and thereby defendant
No.15 has become exclusive owner and possessor of the property as mentioned in para No.6. He further submitted that the plaintiff was never in joint possession over the suit property and the court fee is not properly valued and the court fee paid is insufficient. The remedies of the plaintiff can be worked out from the built up area fell to the share of the defendant
No.10.
19)The defendant No.16 filed written statement to the affect that he purchased the same property as mentioned in para 6 of the written statement under a registered sale deed and when he became absolute owner and possessor of the same and he leased out the same to a tenant and the plaintiff has no right to seek partition of the suit schedule property and he estopped to claim share or interest in the suit schedule property. The remedies can be worked out from the built up area fell to the share of the defendant no.10.
20OS 164-05 & OS 64-09
20)The additional written statement filed by the defendant No.9 and stated only in respect of the amended part of the plaint paras (f) to (l) and part of the prayer and contended that the plaintiff No.1 executed assignment deed dt. 09.07.2007 is not a legally admission document as it being in respect of an immovable property at Hyderabad, which requires proper stamp duty for transfer of property rights under assignment and compulsory registration as such it is not admissible. The said assignment in respect of the immovable property has to be admitted and registered in the Sub
Registrar’s office where it is situated, as such admission of any of the offices of Switzerland is not amissible in India. The plaintiff No.2 made a false statement that the defendant Nos. 6 to 10 admitted that the defendant No.6 never lived in Switzerland and he lived in USA died long back, the defendant
No.1 has nothing to do with the suit property and the defendant No.8 also living in USA. The contention of the plaintiff is only against the defendant
No.10 and not against this defendant as such there is no need to give any specific reply. The plaintiffs made claims against this defendant and other defendants for rents of the suit property and deposit of such amounts is not maintainable, as the claim of plaintiffs that this defendant and other brothers are codebtors. No courts in Switzerland declared this defendant as a codebtor of defendant No.10. There is no need for the plaintiffs to file any proceedings in India, straight away they could have moved proceedings in Swiss courts against their properties in Switzerland. Therefore, the claim is false and hereby denied and prayed to dismiss the suit in the interest of justice.
The Defendant Nos.17 to 21 did not file their written statements.
21)The following issues have been settled for trial.
21OS 164-05 & OS 64-09
1. Whether the sale certificate issued in favour of the plaintiff dt.
27.07.2004 (correct date is 27.09.2004) by the Swiss Court valid, binding on the defendant?
2. Whether the plaintiff is entitled to 22.5% share from the suit schedule property?
3. To what relief?
OS No. 64 of 2009
22)The suit is filed by the plaintiffs for partition of the plaint schedule property into 5 shares and to allot one share to the plaintiffs and also for future profits.
23.The brief averments of the plaint are as follows:
On 10.09.2004 at 15.00 hours the suit schedule property auctioned at the court at District Morges, Switzerland, The suit schedule property is H
No.3619, Himayathnagar, Hyderabad The 1st plaintiff is the highest auction purchaser. The 1st plaintiff, a Swiss National domiciled in Austria has obtained an order in default in payment on 17.06.1997 which has been added to on 04.08.1997 against Mr Altaf Hussain Khan the 5th defendant herein. When there was default in payment on the part of the 5th defendant an order or attachment dated 05.11.1997 has been passed by the office of the legal proceedings of Morges, Switzerland.
24)The first defendant has contested the legality of the attachment and was confirmed on 04.12.1997 in respect of two buildings H.No.59186,
Chapel Road and 3619 at Himayathnagar at Hyderabad. In the present suit the suit schedule property is H.No.3619, Himayathnagar, Hyderabad.
On 16.12.1997 the defendants 1 to 3 filed an appeal before the Court of
District Morges, Switzerland. On 08.01.1998 the 4th defendant Mahmood 22OS 164-05 & OS 64-09
Hussain Khan filed a separate appeal contesting rights of all his brothers.
On 25.11.1998 the court of District, Morges, Switzerland rejected the 4th defendant’s appeal. Similarly on the same date the appeal filed by the four brothers was also rejected.
25)The 4th defendant has not chosen to file an appeal against the said order dt. 28.01.1998. Out of the other four brothers the 3rd defendant has chosen to file appeal against the order dt.28.01.1998 and the same was also rejected by the Court of Bankruptcy of Legal Proceedings on 19.05.1999.
Thus, the plaintiff was granted a decree on 19.05.1999 and submitted that the decree has become final because there was no appeal to the Supreme
Court of Switzerland.
26)On 28.01.2000 the Hon’ble Supreme Court has finally upheld the right of the plaintiff. The letter of conciliation sent by Bankruptcy of
District Morges by registered post. A sale notice was also issued stating that the 1/5th share of the 5the defendant would be sold on 10.09.2004 at
Morges Judicial Auction Hall of the office of prosecution, 5th floor, St. Louis
5. The plaintiff became highest bidder for 10,000 Swiss Franks. As the sale is not questioned by the debtor or any of the defendants with;in 10 days, the sale has been confirmed. The plaintiff purchased only 1/5th share, the present suit is for partition and separate possession at Himayathnagar,
Hyderabad, the Bankruptcy of the 5th defendant has not been annulled so far. The plaintiff No.1 assigned her interest in the above suit schedule properties in favour of the plaintiff No.2 by executing an assignment deed dt.
09.07.2007 in Switzerland as per law. The same was confirmed by the 23OS 164-05 & OS 64-09
Judicial Authorities and accepted by the defendant Nos. 1 to 5 and by virtue of acquired the rights in the suit schedule properties in respect of two properties i.e Chapel Road & Himayathnagar property. The plaintiff No.2 also formed complained before Public Prosecutor, District of Morges,
Switzerland on 18.11.2011 against defendant No.5 (Altaf Hussain Khan) and his wife Cecile Hussain Khan for fraudulent Bankruptcy and fraud in
Seizure. The investigation directed as against them. The said person hid parts of their assets actually belonging to Plaintiffs,a nd in subsequent proceedings before PE13.021960MMR, dt.25.11.2014. The Chamber of
Criminal Appeal (High Court for Criminal Matters – State Vaud –
Switzerland) indicted that defendant 5 herein, admitted before the Tribunal through his counsel Dr Francois Besse, dt. 22.10.2014 stating that “Altaf
Hussain Khan did not diminished any assets and caused no damage to creditors. The fact that the recovery, in India, the debt acquired by auction in Switzerland has caused difficulties to Mr Ceizar Ali Asghar and no longer the responsibility of Swiss authorities, but the Indian authorities. He cannot be accused of having concealed any assets of Ceizar Ali Asghar (P2 herein), that should be subject to the procedure of seizure..” with defendant5 admittance as follows :
“../. the rights held on your (P2) buildings in India having already been made in favour of the creditor (P2), who happens to be the plaintiff complainant.” “../. In fact, Altaf Hussain Khan rights on properties owned in India had already been made for Ali Asghar Ceizar. Since the realization of assets has already taken place, there is no more room for fraud in the seizure. Altaf
Hussain Khan did not diminished any assets and caused on damage to creditors. The fact that the recovery, in India, the debt acquired by auction 24OS 164-05 & OS 64-09 in Switzerland has caused difficulties to Mr Ceizar, and no longer the responsibility of Swiss authorities, but the Indian authorities.” “In this case, as has already noted, the property covered, namely rights on immovable property in India, had already been assigned in favour of Mr
Ceizar, who thus became owner, and well before the facts that Mr Ceizar accuses Mr Hussain Khan. The latter cannot therefore to be blame for not observing the rules of the procedure of prosecution, or did not state the concealed assets that are not in his possession. Indeed, Altaf Hussain Khan perfectly and fully informs the Office on property he owned. He had no obligation to inform the Recovering Office on property that did not belong to him, as though trying to make, apparently, the plaintiff.” “As it has been shown previously, the elements of section 323 al.2CP are not met. The rights which are the subject of recovery have already been transferred in the favour of the plaintiff, who became owner. Altaf Hussain
Khan did not conceal any property belonging to him” (Page5, SubClause I, para5 of said above document.
“As already been explained previously, all these documents relate to a claim where Ali Ceizar already became owner. It does not see therefore how, within the framework of the seizure against Altaf Hussain Khan is might be legitimate to get anything since Altaf Hussain Khan is no longer owner. It is also not, in this context that the hearing of Altaf Hussain Khan could bring more.”
All the defendants herein collecting the rents and enjoyed the same as theirs.
The plaintiff No.2 is entitled rent to the extent of 1/5th share from 1994 to the end of 2018 that is 24 years which becomes average mounts to Irs 85’000 per month along with interest at 12% per annum.
27)The first defendant died. Defendant Nos. 2, 4 and 6 have filed their written statements and defendant No.4 also filed additional written statement. Defendant Nos.3, 5 were set exparte to the proceedings.
Defendant No.6 & 7 are the legal representatives of the first defendant and 25OS 164-05 & OS 64-09 written statement not filed. (Impleaded as per IA No. 1746/15 dt.
14.12.2015).
28)The second defendant filed written statement denying the plaint averments submitting that the suit schedule property is owned and possessed jointly by the defendant Nos.3 & 4 which is established from the orders in IA Nos.168/99 and 949/99 in OS No.361 of 1994 filed by the plaintiff against the said orders, the plaintiff has not preferred any appeal or revision. The suit schedule property originally got attached by the plaintiff as item No.2 in IA No. 500/1994 in OS No. 361/1994 filed and pending on the file of I Senior Civil Judge, City Civil Court, Hyderabad for recovery of money against defendant No.5 The suit property which is belonging to the defendant Nos. 3 and 4 got attached the exparte orders to get their property released from the attachment before judgment and a fresh modified attachment orders was also issued on 04.06.2002 in IA No. 1189/2002 in
OS No. 361/1994. The schedule property cannot be sold or auction during
the pendency of the said suit. No appeal or revision filed against the release order and pray to consider the contents of the written statement filed by defendant No.4. This defendant along with defendant No.3 & 4 purchased a portion of the Chapel road property under a registered sale deed from the building, but not from the owners, defendant Nos. 1 & 5.
29)The defendant No.6 filed written statement similar to that of defendant
No.2.
30)The defendant No.4 filed written statement stating that he and defendant No.3 owned and possessed the suit schedule property under 26OS 164-05 & OS 64-09 registered sale deed document No.507/1959 and presently the schedule property is under lease given by these defendants. The motherinlaw of the plaintiff i.e the mother of the alleged GPA holder of the plaintiff filed a suit
OS No. 627 of 1995 on the file of I Senior Civil Judge, City Civil Court,
Hyderabad claiming 1/11th share in the suit schedule property falsely alleging that it was matruka property of her mother. The mother of the GPA holder Smt Zehra Sultana is the Uterine sister of the defendants. The mother in law of the plaintiff also filed OS No.627 of 1995 therein she also filed IA No. 571/95 seeking injunction against the defendants not to interfere with her alleged joint possession over the schedule property and not the alleged suit schedule property. The petition was dismissed on merits vide orders dt.18.08.1995. The appeal preferred against the said order was also dismissed by the Hon’ble High Court dt.13.10.1995 in the appeal against the orders in IA No. 1389/1995. The suit OS No.627 of 1995 after the trial dismissed with costs vide judgment & decree dt.02.12.2000 by upholding that the defendant nos. 3 & 4 are the only owners of the suit schedule property and it is not a matruka property. The title and rights of the defendants over the suit property have been confirmed by the court of law,
Trial court in suit and by Hon’ble High Court in appeal against orders
No.1389 of 1995. The defendant No.5, Mr Altaf Hussain Khan and the plaintiff herein had business relations and did a contract of construction i.e development of plot of land No.767 situated at rue du Lac, 15a. in the
Commune of Renens Switzerland. They had differences and in pursuance of the said transactions the plaintiff filed suit in OS No.361 of 1994 on the file of I Senior Civil Judge, CCC, Hyderabad for recovery of Rs.50,00,000/ against the defendant No.5 Mr Altaf Hussain Khan, the same is pending.
27OS 164-05 & OS 64-09
31)It is further submitted that the plaintiff filed application IA No.500 of 1994 in OS No. 361 of 1994 for attachment before Judgment in respect of alleged properties of the defendant of the said suit OS No. 361/94 (Defendant No.5) seeking attachment before judgment in respect of the alleged properties of the defendants including the properties of the defendants i.e Item No.2. The affidavit filed in the said application shows the fully knowledge of the plaintiff that the property is the exclusive property of the defendant No. 3 & 4. Item No.1 of the schedule of IA 500/1994 in OS
No. 361 of 1994 was the property of the defendant No.5 and his brother Dr.
Mushtaq Hussain Khan, defendant No.1 and they gave the same on development in third party. The written statement of the defendant in OS No.
361 of 1994 was to the effect that is the joint owner of the item No.1 and item No.2 property bearing H.No.3619, situated at Himayathnagar,
Hyderabad is owned and possessed by the defendant Nos. 3 & 4 only inspite of the same the plaintiff has not taken any steps to get the said IA No.500 of 1994 in OS No. 361 of 1994 modified or the orders dt. 05.04.1994 got modified. The plaintiff after taken exparte orders in IA No.500 of 1994 and filed in the Swiss Courts stating that the said properties are under attachment. The defendant No.4 also filed an appeal for a justified order, in
Swiss Court but he was directed to approach Indian courts to get the orders
dt 05.04.1994 nullified or modified by the same court to protect his property.
The defendant No.4 approached the I Senior Civil Judge, City Civil Court,
Hyderabad by filed a claim petition in IA No. 168 of 1999 in OS No. 361 of 1994 for release of item No.2 of the attached property. The plaintiff filed counter affidavit item No.2 of the attached property is sold by none other than the husband of GPA of the plaintiff under a registered sale deed to the defendant Nos.3 & 4. After due contest in IA No. 168 of 1999, the defendant 28OS 164-05 & OS 64-09
No,4 has got his share of the property released ad further by the orders in IA
No.949 of 1999 in OS No. 361 of 1994, the remaining 50% share of defendant No.4 is also released vide orders in IA No.1189 of 2002 in Os No.
361 of 1994. Later in IA No 1189 of 2002 the property bearing M.No.3619, the present suit schedule property is released from attachment and the modified order of attachment is issued. The suit OS No. 361 of 1994 is still pending and no decree is passed in the said suit. The immovable property situated at Hyderabad, A.P. India cannot be auctioned or sold at
Switzerland, much less auctioned at Morges, Switzerland, Judicial auction hall of the Office of Prosecution at 5th floor of B.A.C. Place st. Louis5 in the
State of Switzerland in between the plaintiff and defendant No.5 Altaf
Hussain Khan whether defendant No.5 filed any insolvency petition or not.
Defendant No.5 is well aware that the present property is the exclusive property of the defendant No. 3 & 4 herein and to that effect the defendant
No.5 filed his written statement in OS No. 361 of 1994 and the suit is pending for trial, as such the property cannot be sold or auctioned. The submission of the 1st plaintiff as per document No.1 filed that he is the auction purchaser of the share of the defendant No.5 in the suit schedule property is incorrect.
32)It is further stated that the litigious and contested rights claimed by the 1st plaintiff herein have to be proved and claimed in India. Even if the orders are taken as true and binding then also the 1st plaintiff has to file a suit to prove that the defendant No.5 herein (who is a debtor in Switzerland to the plaintiff herein) has a right in the suit schedule property and after getting such decree only she is entitled to enforce the order which is passed by the Switzerland court. Further the fact remains the said property was 29OS 164-05 & OS 64-09 also released from attachment claimed by the 1st plaintiff in IA No. 500 of 1994 in OS No 361 of 1994 on contest between the 1st plaintiff herein and the defendant Nos. 4 & 3 herein in IA No. 168 of 1999 & IA No. 949 of 1999 in OS No. 361 of 1994. The certificate dt. 27.09.2004 filed by the 1st plaintiff is in respect of property bearing No. 59186 situated at chapel
Road, Hyderabad belonging to the defendants No.1 & 5, but not in respect of the suit scheduled property. Further the English translation of the document
No.1 filed by the plaintiff is not properly translated in English. If the contention of the plaintiff that the defendant No.5 has right in the property at Himayatnagar and the plaintiff is claiming 1/5th share in the
Himayathnagar Property, then the claim of the plaintiff in Chapel Road property also must be 1/5th share only, but in chapel road property the claim is as per the document of the parties i.e the defendant No.1 & 5 herein and in respect of the Himayathnagar property, it is not as per the same deed (title document) of the defendant Nos. 4 & 3 herein.
33)The defendant No.5 has no share in the property at Himayathnagart,
Hyderabad and also as per the orders passed in the Application in OS No.
361/1994. As such the suit is not maintainable until and unless the plaintiff proves that the defendant No.5 has a right or 1/5th share in the suit schedule property of the defendant Nos. 4 & 3 herein. The court fee paid under Section 34(s) of A.P.C.F. & SV Act does not apply to the present suit as the property is not joint and the suit for partition does not lie. The suit schedule property is already released from the attachment in IA No.
500/1994 in OS No. 361 of 1994, as such the orders of attachment or any auction etc passed by the Swiss court are untenable. The suit schedule property is the absolute and exclusive property of the defendant Nos. 3 & 4 30OS 164-05 & OS 64-09 and that the title the rights of these defendants over the suit schedcule property are still subsisting under the said sale deed since more than 50 years they are enjoying the same. All the immovable properties situated in
India are governed by the Transfer of property Act and these properties can neither be attached or sold in any foreign country or by any foreign authorities. The provisions of Indian Stamp duty, Registration Act and the
Transfer of Property Act are applicable. Therefore, the suit itself is not maintainable.
34)The defendant No.4 also filed additional written statement stating that the contention of the plaintiff No.1 executed assignment deed dt.09.07.2007 is not a legally admissible document, as the immovable property situated at
Hyderabad. It is pertinent to submit that this defendant has earlier submitted that the said share or any portion of the said property is not sold, rather as according to the authority issued the said certificate in respect of a contested unproved debt claim, these are the seized rights which were sold and not a part of the coproperty” it indicates that the said certificate in respect of the suit property is not sold, rather the contention of the plaintiffs that the defendant No.5 is having 20% (1/5) share in the suit property being transferred, if at all has any such share in the said property, which is to be proved before that the defendant No.5 has such share, and then the plaintiffs have a right to claim. The same contention has been clarified by the letter dt. 10.07.2019, issued by office of the Bankruptcy and
Prosecution, District of Morges, Switzerland. As such the suit itself is not maintainable without the plaintiffs filing a case to prove that the defendant
No.5 has a share of 20% (1/5) as claimed by them, since the competent court has already declare that the defendant Nos. 4 & 3 are the only owners 31OS 164-05 & OS 64-09 and possession of the item No.2 H No.3619, Himatyathnagar, Hyderabad and no one else, to the knowledge and being party to the case, further filed as exhibit in the above suit itself. The defendant No.5 has surrendered his rights etc., before the Swiss Courts has been misinterpreted. The defendant
No.5 might have surrendered his rights in respect of his share of property in item No.1 i.e 22.5% share in Chapel road Property, but not in respect of the above suit schedule property.
35)Basing on the above pleading, the following issues have been settled for trial.
1. Whether the document i.e auction sale certificate dt.27.09.2004 basing on which the plaintiffs are claiming share in the suit schedule property, is valid and binding on the defendants?
2. Whether the plaintiffs are entitled for preliminary decree of partition as prayed for, if so, what are the shares to which the parties are entitled to?
3. Whether the plaintiffs are entitled for future mesne profits, if so, at what rate?
4. To what relief?
36) ISSUE NO.1 IN OS NO. 164 of 2005 & issue no.1 in OS No. 64 of 2009 :
OS No.164 of 2005 & OS No. 64 of 2009 both suits were clubbed
together as per orders in IA No. 1182 of 2019 dt. 23.04.2019, but on the date of clubbing the evidence in OS No.164 of 2005 came up for arguments after recording the evidence of both sides. Therefore, the evidence in OS No.
64 of 2009 was recorded separately and documents were marked separately.
32OS 164-05 & OS 64-09
37) In OS No. 164 of 2005 and in OS No. 64 of 2009 the issue No.1 is similar with regard to whether the Auction Sale certificate dt. 27.09.2004 issued by Swiss Court, upon which the plaintiffs claiming share is valid and binding on the defendants. Therefore, these issues are taken up together.
The plaintiff has raised the proposed issues in his written arguments. The following proposed issues raised are :
1. Whether plaintiff1 transfer her property through Assignment Deed to plaintiff2 in Switzerland was recognized, as well in India which was admitted by defendants along with Swiss Justice to become binding on defendants?
2. Whether Judgment debtor D10/5 admitted, and declared Mr Ceizar
AliAsghar acquired in auction his shares in immovable properties the suit schedule properties in India, and transferred in his name to become owner?
3. Whether any of the defendant made any appeal before Court of Law against the Court Auction and Certificate?
4. Whether Indian Authorities or defendants, which one of them, caused difficulties to plaintiff in regulating his foreign Decree before Indian
Justice.
5. Whether Indian Advocate of defendants is responsible in managing suit schedule properties and prayed 60% of income in rent for maintenance, and takes his fees CHF 10’000. which is Irs 700000. per year.
6. Whether defendant D10/5 is under Act of default, and was condemned to imprisonment twice by Justice of Switzerland for committing Fraud and Stealing plaintiff property before this Hon’ble
Court in India.
33OS 164-05 & OS 64-09
7. Whether plaintiff visited India O.S.No.64/2009 64 times as per his
Swiss Passports with Immigration Stamp of Indian Port of Entry/exit.
As entire evidence has been recorded and in the circumstances of the case, these proposed issues need not be settled, instead serial No.1 to 4 are taken as the points for consideration while answering the present issues.
The rest of the proposed issues are not allowable as are out side the scope of the suit, without pleadings. More over the conduct of the counsel for the defendant No.10/defendant No.5 is irrelevant for the present proceedings.
38)In OS No. 164 of 2005 the plaintiff No.1 is examined as Pw.1 through
GPA holder Sri Ceizar Ali Asghar. The 2nd plaintiff i.e Ceizar Ali Asghar again examined as Pw.2 in his personal capacity by my predecessor. Exs A.1 to A.54 documents marked on their behalf as per appendix of evidence. On behalf of the defendants, defendant No.10 i.e Alfat Hussain Khan was examined as Dw.1 and one P. Sudhakar Reddy was examined as Dw.2 and
Exs B.1 to B.15 documents were marked as per appendix of evidence.
39)In OS No.64 of 2009 the plaintiff No.1 is examined through GPA holder i.e Ceizar Ali Asghar and got marked Exs A.1 to A.58 documents on their behalf as per appendix of evidence. One Mohd. Hussain Khan defendant
No.4 examined as Dw.1 and got marked Exs B.1 to B.8 documents got marked as per appendix of evidence.
40)In OS No.164 of 2005 heard the plaintiff No.2 in person who is the
GPA holder of the plaintiff No.1 and also for himself. Heard the counsel i.e
Mohd. Mazar Ali for the defendant Nos. 6 to 10. Heard the counsel for 34OS 164-05 & OS 64-09 defendant Nos. 11 to 21 i.e Sri Mohan Rao and the LRs of D.6 i.e Defendant
Nos. 22 & 23 and 24 (tenant) did not participate in the proceedings.
41)In OS No. 64 of 2009 heard the GPA holder of the 1st plaintiff i.e plaintiff No.2. Heard the counsel for the defendant No.2, 4 and 6 i.e Sri
Mohd. Mazar Ali. The first defendant died his legal representatives were brought on record as defendant No.6 & 7 in the proceedings vide orders in
IA No. 1746/15 dt. 14.12.2015. Defendant No.7 did not participate in the
proceedings.
42)Plaintiff No.2/Party in person has submitted written arguments which is part of record for consideration. He also submitted his oral submissions in support of his case. The counsel for the defendants Nos. 11 to 21 Sri
Mohan Rao has submitted written arguments as well as the oral submissions in OS No.164/2005.
43)In the suit OS No. 164 of 2005 the plaintiff pray to allot 22.5% share from the suit schedule property i.e house bearing No. 59186, admeasuring 1187 sq. yards Chapel Road, Hyderabad. In OS No. 64 of 2009 the plaintiff pray for allotment of 1/5th share out of the suit schedule property i.e
M.No.3619, admeasuring 300 sq. yards situated at Himayathnagar,
Hyderabad.
44)After hearing both parties the undisputed facts are that :
1. The defendant No.4 Mohd. Hussain Khan in OS No. 64 of 2009 had four brothers namely 1) Mukhar Hussain Khan 2) Mustaq Hussain Khan 3) Abide
Hussain Khan and 4) Altaf Hussain Khan.
35OS 164-05 & OS 64-09
2. Younger brother Altaf Hussain Khan and Madam Canisia Ceizar purchased a plot of land in Switzerland jointly and in respect of the same they had disputed.
3. OS No. 361 of 1994 on the file of I Senior Civil judge, CCC, Hyderabad was filed by the plaintiff No.1 for recovery of Rs.50,00,000/ against Altaf
Hussain Khan i.e D.5 in OS No.64 of 2009 and also IA No.500/1994 for attachment before judgment in respect of the defendants properties i.e item no.1 & 2.
4. Exparte attachment before judgment was passed.
5. In IA No. 168/1999 and in IA No. 949 of 1999 the property was released from the attachment made in IA No. 500 of 1994.
6. The suit OS No. 361 of 1994 disposed on 12.09.2013.
7. The proceedings in OS No. 361 of 1994 on the file I Senior Civil Judge,
CCC, Hyderabad pertains to IA No. 500/94, IA No. 168/1999, IA No. 949 of 1999 & 1189/2002 as Exs B.1 to B.14 are marked in OS No. 164 of 2005 by defendant No.10 himself (Altaf Hussain Khan)
8. In OS No. 64 of 2009 Exs B.1, B.4 to B.8 are marked through defendant
No.4 i.e Mohd.Hussain Khan.
9. In OS No. 164 of 2005 Exs B.1 to B.15 documents are marked on behalf of defendant No.10 (Altaf Hussain Khan) who was examined as Dw.1.
45)The material documents Ex A.1 the original sale certificate dt.27.09.2004 issued by Office of prosecution of Morges Bankruptcy,
District of Morges, Switzerland in both suits is the document upon which the plaintiffs have prayed this court for the reliefs claimed in both suits. The
English translation for the same is marked as Ex A.2 in both the suits.
47)According to the case of the plaintiffs, the plaintiff No.1 has obtained order in default in payment on 17.06.1997 which has been further added to 04.08.1997 against Mr Altaf Hussain Khan (D.10) and an order of attachment dt. 05.11.1997 has been passed by the Office of the Legal
Proceedings of Morges.
36OS 164-05 & OS 64-09
48)The attached properties are part of common property to an extent of 22.5% being the undefined share of debtor (D.10) and after contest by both parties the proceedings in OS No.361 of 1994 and other IAs and also before
Switzerland Court ultimately the first plaintiff had a judgment in her favour for Prosecution and Bankruptacy under Ex B.1 (OS No. 64/2009) and the 1st plaintiff approached the court for the relief of partition and for other reliefs.
Basing on the sale certificate dt. 27.09.2004 in Ex A.1 in both suits in the name of the 1st plaintiff assigned and transferred to the plaintiff No.2.
49)On perusal of the judgment dt. 26.04.2004 in Ex B.1 it indicates how the first plaintiff has succeeded to have judgment in Ex B.1. Ex B.1 refers to judgment dt.26.06.2003 by the President of the Tribunal Circle of La Cote refusing to rectify the processverbal on 05.11.1997 by The Head of the
Office in the Cadre of Prosecution established against Altaf Hussain Khan in favour of plaintiff No.1 Canisia.
50)As seen from Ex B.1 there was attachment on 05.11.1997 in respect of the suit properties in OS No.64 of 2009 at Switzerland and there was attachment by the I Senior Civil Judge, City Civil Court, Hyderabad on 05.04.1994 and by order in Ex A.11 dt. 04.11.2000, appeals preferred by
Mohd. Hussain Khan has been rejected. It is also seen from Ex B.1 it is made clear that property at Himayathnagar being exclusively composed of
Mohd. Abide Hussain Khan not of society. It is seen from Ex A.11 that the
Office of Bankruptcy legal proceedings Morges have registered to continue the debt recovery proceedings Nos. 431’720 & 423’767 and affected seizure in the said dates in respect of the present schedule of the property. The copies of the registered recorded verbal have been expected on 04.12.1997 37OS 164-05 & OS 64-09 deposited by Altaf Mukhar, Mustak & Abide Hussain Khan on 16.12.1997 and on 08.01.1998 by Mohd. Hussain Khan in respect of the schedule properties herein. Ultimately the appeal of Altaf Hussain Khan (D.10) in OS
No.164 of 2005 was rejected and appeal of Mohd. Abide Hussain Khan and
Mohd Hussain Khan is partly accepted. By way of this judgment Ex B.1 it was made clear to seized shares of community vide attachment dt 05.11.1997 under Nos.431’720 & 423’767 should be sold by auction as its respondent. In continuation of Ex B.1 there was issuance of sale certificate in respect of the suit schedule property in Ex A.1 in both suits.
51)As per Ex A.11 observation the Indian judgment dt.12.03.1999 have not excluded the existence of the seized credit. Therefore, the appeal by defendant No.4 i.e Mohd Hussain Khan has been rejected. Exs A.5 the judgment of Swiss court dt. 17.09.1998 referred by Altaf Hussain Khan (D.10) and partner against office of Bankruptacy and legal proceedings of
Morges in respect of the suit schedule property bearing No. 423’720 & 423’767 and Ex A.6/A.7 preferred by Abide Hussain Khan dt. 21.04.1999,
Ex A.8/A.9 preferred by Mohd. Hussain Khan (Defendant No.4 in OS
No.64/2009) by Swiss Courts coupled with Ex A.10/A.11 and Exs A.12/A.13 proved the case of the plaintiff that he had judgment by the court of
Switzerland recognizing the rights of the 1st plaintiffs under the judgment followed up by the Office of Prosecution and Bankruptcy Morges, Switzerland
dt. 27.09.2004 confirming the rights under sale certificate Exs A.1/A.2.
52)The plaintiff No.2 added as per orders in IA No. 569/2007 dt.
02.11.2011 in OS No. 164 of 2005. The plaintiff No.2 added as per orders in
IA No. 178 of 2015 dt. 15.12.2017 in OS No. 64 of 2009.. Basing on the
38OS 164-05 & OS 64-09 assignment deeds of rights of first plaintiff in favour of the 2nd plaintiff in respect of assignment deed executed vide Ex A.34 Ex A.35 is the Act of transfer in OS No. 164/05. The relevant assignment deed and Act of transfer are Exs A.55 & A.32 in OS No.64/2009. The plaintiff No.1 assigned her rights in favour of plaintiff No.2 stating that she has no interest whatsoever in all the recovered claim and plaintiff No.2 have acquired the rights and he will continue the legal action under his name to recover the claims and damages and interest. Ex A.36 for which A.37 is the translation document
dt. 25.05.2010 in OS No. 164/05. As per Ex A.36 the debtor has informed
the change of the creditor and no objection has been lodged and the name of the 2nd plaintiff is shown as creditor in the suit No.3056743. The defendants have no appeal against the orders in IA No. 178 of 2015 and IA No.
569/20117 in bringing the 2nd plaintiff under the assignment.
53)The main contention of the defendant No.9 & 10 in OS No. 164 of 2005 and defendant No.3 & 4 in OS No. 64 of 2009 is that initially the suit filed by the first plaintiff in OS No. 361/94 (Ex B.4) for recovery of Rs.50,00,000/ against Altaf Hussain Khan (the contesting defendant defendant No.10 in OS
No. 164/05 and defendant No.5 in OS No. 64/200) before the court of XII
Additional Chief Judge, City Civil Court, Hyderabad.
1. As per Ex B.12 to B.14 the item No.2 has been deleted by the orders in
IA No. 168/99 and as per orders passed in IA No. 949/99 dt.
03.06.2002 the petition is allowed in respect of item No.2. The said petition is filed by Abid Hussain Khan (defendant No.8 in OS No.
164/05 and defendant No.3 in OS No.64 of 2009). There was no revision against the said order. Item No.2 schedule of property in OS
No. 64/2009.
39OS 164-05 & OS 64-09
2. It is further contention the first plaintiff filed an affidavit to implead other brother and the same is allowed exparte. The defendants filed
CRP No. 4340/2003 and stay granted therein continued.
3. The plaintiffs have not filed any document to show the defendant surrendered the suit property before the court of Switzerland.
4. The auction sale certificate (Ex A.1) shows if any 22.5% share belongs to defendant No.10 in respect of property of item No.2 Himayathnagar to have the share when defendant No. 3 & 4 are owners in OS No.
64/2009 schedule property.
54)The suit OS No.361/94 filed alleging that the defendant No.10/D5 is a codebtor and coguarantor to the financial institution when both took construction work applied for loan of Rs.6 Crores. It is clear from Ex B.1 that first plaintiff got attachment of the properties of the defendant No.10 (OS No. 164/2005) and defendant No.5 in (OS No. 64/2009) before foreign court for the properties located in Switzerland as per the certified copies of the judgment referred in Para 5 of Ex B.1. Since the amount is not sufficient to discharge the liability of the defendant, the present suit is filed seeking for attachment of the properties located in Hyderabad in India. Exs B.2 is the written statement filed by the defendant No.5 (OS No. 64/2009) and defendant No.10 (OS No. 164/2005) wherein stating the defendant No.5 & defendant 10 had property at Himayathnagar, Hyderabad by denying the plaint averments. It is also seen from Ex B.3 that an attachment order was obtained by the 1st plaintiff represented by GPA in respect of both properties in IA No. 500/1994 in OS No. 361/1994. Exs B.4 & B.5 are also pertains to
IA No. 500/1994 in OS No.361/1994. Ex B.6 is the certified copy of IA No.
168/1994 in OS No. 361/1994 (defendant No.9 in OS No. 164/2005 and defendant No.4 in OS No. 64/2009 (by the petitioner/3rd party Mohmood
Hussain Khan for the relief to set aside the attachment made on 05.01.1994 40OS 164-05 & OS 64-09 in respect of the property at Himayathnagar, Hyderabad. Ex B.7 is the counter of the first plaintiff represented by her GPA. Ex B.8 is the Order in
IA No. 169/99 in OS No. 361/1994 allowing partly raising attachment to the
extent of half share of the petitioner in the property item No.2 bearing H No.
3619, Himayathnagar, Hyderabad, India.
55)As per the online verification by this court the said suit OS No.
361/1994 has been disposed off on 12.09.2013 but none of the parties have filed any copies of the said judgment. Though the counsel for the defendant
No.10 (in OS No.164/2005) and defendant No.5 (OS No.64/2009) submitted that review is pending but no proof is filed before this court. As per Ex A.32 judgment in OS No.390/2004 on the file of X Addl. Chief Judge, CCC,
Hyderabad filed by Mahmood Hussain Khan (defendant No.9 in OS No.
164/2005 & defendant No.4 in OS No. 64/2009) for recovery of amount against the present first plaintiff, but the same has been dismissed. In the said judgment there was reference of OS No.361/1994 on the file of I senior
civil Judge and the orders in IA No. 500/1994 (Ex B.5). The suit OS No.
390/1994 has been dismissed filed by Mahmood Hussain Khan defendant
No.9 in OS No. 164/2005 & defendant No.4 in OS No. 64/2009). The orders in CRP No. 4340/2003 also referred to in the said judgment. The said CRP was allowed to implead the proposed parties/codebtors declared by the courts at Switzerland by setting aside the order of the lower court. The contention raised by the 1st plaintiff in CRP No. 4340/2003 is that in view of the proceedings of the courts at Switzerland inclusive of judgments the co debtors are liable to pay the amount sought to be recovered in the suit along with the first defendant. The stand taken by the proposed parties are that there is no privity of contract between the parties. As observed by the 41OS 164-05 & OS 64-09
Hon’ble High Court in CRP No.4340/2003 the law of this country in Sections
13 and 14 of Civil Procedure Code is not merely rules of procedure, but rules of substantive law, recognizes and the conclusiveness of the foreign judgment as to any matter thereby directly adjudicated upon between the same parties. The foreign judgment is not conclusive in between the parties or any of them claiming under the same title except the instances shown in
Section 13 clause a.to f). As per Section 14 there is a presumption as to foreign judgment, the judgment is pronounced by the court of competent jurisdiction unless the contrary appears on record, to such presumption may be displaced by proving want of jurisdiction.
56)The contention of the defendants that the foreign courts have no jurisdiction to try the subject matter of the property in India and the orders passed by the foreign courts are without jurisdiction, is not tenable as defendant No.10 in OS No. 164/2005 & defendant No.5 in OS No. 64/2009 has surrendered his remaining properties i.e the suit properties in foreign country for prosecution and bankruptcy authority the OP office Morges,
Switzerland on 08.07.1997 and the same were executed on 05.11.1997. The said fact is proved or evident from Ex A.4 and from the answers of Dw.1 in his cross examination. The relevant documents in Exs A.4 to A.16 discloses that the Khan brothers as respondents but liability imposed to judgment co debtor/defendant No.10 in OS 164/2005 and defendant No.5 in OS No.
64/2009.
57)On perusal of Exs A.4 (Judgment of the Lower court in French dt.17.09.1998) and A.6 (Judgment of Tribunal Cantonal in French 42OS 164-05 & OS 64-09 dt.21.04.1999) were made clear that those judgments were in favour of the 1st plaintiff in recognition of her litigant rights by the court of Morges,
Switzerland.
58)As per Ex A.8 the judgment of the Tribunal Cantonal in French proceedings dt. 04.01.2000 audience of 02.11.1999 disclosed the facts of permanent decree delivered on 17th June, 1997 under the Debt Recovery
No.396’983 against Altaf Hussain Khan (defendant No.10 in OS
No.164/2005 & defendant No.5 in OS No. 64/2009) and so also and there after continuous of the debt recovery proceedings under the No.343’720 and 423’769 and seizure was affected on 05.11.1997 that mentioning of the shares in respect of items Nos. 1 & 2. The appeal in Ex A.8 was preferred by
Mohmood Hussain Khan (defendant No.9 in OS No. 164/2005 and defendant No.4 in OS No. 64/2009) and the same is rejected. The judgment of Supreme Court in Ex A.12 also held against Mohmood Hussain Khan. As per Ex A.15 the common society consisting of Mukhtar Hussain Khan,
Mushtaq Hussain Khan, Mohmood Hussain Khan, Abid Hussain Khan and
Altaf Hussain Khan are considered as codebtors in respect of the suit schedule property. The appeal of Altaf Hussain Khan is set aside. The appeal of Mukhtar Hussain Khan and Mushtaq Hussain Khan is also rejected. The documents filed during the course of arguments put to judicial notice of this court that the surrender of properties by common society. As per Ex
A.45 the judgment of the Debt Recovery and Bankruptcy court the petition of
Mohd. Hussain Khan and others not received and observed in that:
In this case, the Public Prosecutor retains quite rightly that Altaf HUSSAIN KHAN cannot be accused of having concealed assets that should be subject to the procedure of seizure, the rights held on your buildings in India having 43OS 164-05 & OS 64-09 already been made in favour of the creditor, who happens to be the plaintiff/ complainant.
c. In this case as it rightly retains the Prosecution, the conditions of Section 154 al. ‘12’ CP are clearly not performed neither. In fact, Altaf HUSSAIN KHAN Rights on properties owned inIndia had already been made for Ali Asghar CEIZAR. Since the realization of assets has already taken place, there is no more room for fraud in the seizure. Altaf HUSSAIN KHAN didn’t not diminished any assets and caused no damage to creditors. The fact that the recovery, in India, the debt acquired by auction in Switzerland has caused difficulties to Mr. CEIZAR, and no longer the responsibility of Swiss authorities, but the Indian authorities. In all manner, the incidents related to the recovery of the debt acquired in progress forced by…
From the above documents the plaintiffs have litigant rights over the suit schedule property which are confirmed by the court at Switzerland.
59) The final decree passed the post execution Ex A.6 (Judgment of
Tribunal Cantonal in French dt.21.04.1999 is with sale of seized properties of defendant No.10 (OS 164/2005) and defendant No.5 (OS No. 64/2009) in public auction on 10.09.2004 by the OP office Morges. The plaintiff took stand that laws under Insolvancy Act binds all, unless extraordinary instances of fraud has taken place. As per Ex A.38 defendant No.10 (OS 164/2005) defendant No.5 (OS 64/2009) and defendant No.9 (OS 164/2004) and defendant No.4 (OS 64/2009) were found guilty is a fact. The contention of the counsel for the defendants Nos. 10/5 is that the present suit basing on the alleged sale certificate/ other assignments cannot be in respect of immovable property situated in India and the proceedings are not by the competent court and no foreign courts have jurisdiction to do so, as such
Section 13 of CPC is not applicable to the present case. The same is answered by the plaintiffs at para 49 of the written arguments of the plaintiffs. On perusal of Ex A.38 (Judgment given by Tribunal of Police 44OS 164-05 & OS 64-09 dt.07.05.2002) it is fact that the defendant No.10 (OS No. 164/2005) and defendant No.5 (OS 64/2009) was found guilty were sentenced and committed fraud and stealing before this court of Indian soil by the Tribunal of Police, Switzerland.
60)Ex A.50 is counter statement by defendant No.9 (OS No. 164/2005) and defendant No.4 (OS No. 64/2009) in CCCA 255/2007 wherein the stand taken by the respondent is that the property is under attachment
before judgment in money suit OS No. 361/1994 which is still pending for
trial and the immovable properties of India are governed by the Provisions of
Transfer of Act and not by any foreign institution or Officer. Such contention of the defendant No.9/defendant No.4 also raised in the present suit is not tenable since defendant No.10/5 before the Office of Morges,
Switzerland surrendered remaining asset which were hidden in foreign land of India, with consent of judgment creditors/debtors.
61)A specific averment is made out in Ex A.33 i.e CC of CRP
No.4340/2003 that the parties are also liable to pay the amount on the strength of a foreign judgment or a decree as the case may be and therefore, the proposed parties/codebtors by the Switzerland court are directed to be impleaded by the Hon’ble High Court. Section 28 of the Insolvency Act helps the plaintiff’s case and the insolvent is bound or compel to or transfer deed in respect of his right in any such properties situate in a foreign state prior to to complete the title in the receiver to that property situate in a foreign
State. As per Section Subsection (2) and (4) of Section 28 Provincial
Insolvency Act The entire property of the insolvent wherever situated can 45OS 164-05 & OS 64-09 recover the position even such property situated in a foreign State. In this contest the plaintiff has relied on the case law reported in between Patel
Jeshbhai Revendas and another vs. Patel Narisnbhai reported in AIR
1968 GUJARAT 101 as well as in between Jayantilal Kashavlal v.
Kantilal Jesingbhai reported in AIR 1955 Bombay 170.
62)In addition to that an extraterritorial operation is recognized in the present suit basing on Exs A.4 to A.16.
63)Section 66 of CPC as well as Order 21 Rule 94 CPC also recognized the rights of the purchaser under purchase certificate by the court.
64)Ex A.45 finding by Swiss Court of cantonal Court (Switzerland) indicating the facts that the recovery, in India, the debt acquired by auction in Switzerland has caused difficulties to Mr Ali Asghar Ceizar and there was no responsibility of Switzerland authorities, but the Indian authorities. The fact is also clear that the property rights of immovable in India have already been assigned in favour of plaintiff who thus became owner even before the acquisition of Mr Hussain Khan. There was information by Altaf Hussain
Khan to the Office on property he owned.
65)The learned counsel Sri Mohan Rao appeared for the defendant Nos.
11 to 21 has made his submissions supporting the plaintiffs case with regard to maintainability of the suit on territorial jurisdiction. The contesting defendant Nos. 10/defendant No.5 in both suits there was much 46OS 164-05 & OS 64-09 objection raised by them regarding lack of jurisdiction of the Indian Court as below:
“As alleged sale certificate, auction letter and all other proceedings cannot be in respect of an immovable property situated in India, therefore, the alleged orders or proceedings are not passed by a competent court, not on merits, obtained by fraud (under line by earlier) and they are not in accordance with the law of transfer of Property Act, which is the only law which governs the transfer of all immovable properties in India and the disputes and transfer to be adjudicated only by Indian Court and no foreign court has jurisdiction to do so”.
66)To answer this objection at the first instance the provisions under
Section 16, 17, 18, 19, 20 and 60 of CPC are helpful to the plaintiffs case vesting the jurisdiction of this court in India.
67)The judgment in Exs A.4 to A.16 Swiss judgments were on record are found and were not set aside. There were orders of the Hon’ble High Court also referred the said judgments in CRP No. 4340/2003 and CCA 255/2007 vide Exs A.33 (CC of CRP No. 4340 of 2003) and A.51 (Order of Hon’ble High
Court of AP/TS CCCA 225/07 dt.20.10.2008) are recognizing the rights of the plaintiff into shoes of defendant No.10/defendant No.5. The suit is contested by defendant No.10/defendant No.5 and defendant
No.9/defendant No.4 along with other respondents as on this date. Though the fraud urges by the plaintiff is not proved in creating the documents in respect of schedule property. But the facts proved from the above discussion the entire schedule property of the community were surrendered before the 47OS 164-05 & OS 64-09
Swiss Court. So the jurisdiction now raised by the contesting defendants the earlier proceedings or orders are not passed by competent court obtained by fraud and not in accordance with the transfer of Property Act and adjudication ;should be by Indian Court and not by foreign court and foreign court has no jurisdiction to pass orders (existing Swiss judgments), proceedings is not acceptable by above mentioned reasons.
68) Foreign Awards and foreign judgments does not require registration under Registration Act. The relevant provision are is clause 6(2)(17) of the
Registration Act and Section 44 of the Civil Procedure Code. The plaintiffs have drawn the attention of this court on this aspect and by referred the following case laws.
1. Delhi High Court in Naval Gent Maritime Ltd v. Shinath rai
Harnarain (I) Ltd reported in 174 (2009) DLT 391
2. Vistol S.A. v. Bhatia International Limited reported in 2014 SCC
Online Bombay 1058
3. Narayan Trading Co. v. Abcom Trading Pvt. Ltd. Reported in 2012
SCC Online MP 8645
The plaintiff has submitted in written arguments at page 53 has relied in a case law reported in Mallappa Yellappa Bennur vs. Raghavendra
Shamrao Deshpande on 05.04.1937 of Bombay High Court for the preposition atleast one of the following conditions must be satisfied before foreign judgment can be regarding as having extra territorial validity.
(1) The defendant should be a subject of the foreign country. This is based upon the ground of allegiance, which involves an obligation to comply with the judgments of the courts of that country.
(2) The defendant was resident in the foreign country at the time when the action was begun against him.
48OS 164-05 & OS 64-09 (3) The defendant was served with process while temporarily present in the foreign country.
69)As per Exs A.4 to A.16 the defendants are under the jurisdiction of OP
Office of Morges, Switzerland and there were proceedings taken by the defendants, Khan Brothers against the OP Office Morges, Switzerland. There was court auction dt. 10.09.2004 to which they voluntarily approached and lost their case. Therefore, the foreign judgments (Switzerland) is valid before the courts in India and the contention of the defendant Nos.10/9 this court is not competent to deal with the matter based on the foreign judgment is not sustainable, when in Exs A.1 to A.3 the property was auctioned and purchased by the 1st plaintiff for which no objection was raised by the judgment debtor/defendant No.10 (OS 164/05) and defendant No.5 (OS 64/2009) or judgments codebtor defendant No.6/D1, defendant No.7/D.2,
Defendant No.8/D.3 and defendant No.9/D.4.
70)The 1st plaintiff is being auction purchaser of the schedule properties from the Swiss Court vide Exs A.1 to A.3. The second plaintiff under the deed of Assignments (Ex A.34) and Act of Transfer (Ex A.35) has become the owner of suit schedule property stepping into the shoes of the first plaintiff, The rights of 1st plaintiff has to be protected as purchaser under
Order 21 Rule 92. and becomes absolute. There was also finding in Ex A.45 dt.22.10.2014 of the Switzerland court is in favour of the 1st plaintiff and also it was made clear those properties were located in India. As on this day the finding in Ex A.45 (Determinations to Tribunal of Cantonal in Criminal appeal dt. 22.10.2014) is not set aside and becomes final. In addition to that the claim of defendant No.9/defendant No.4 was rejected as seen from Exs 49OS 164-05 & OS 64-09
A.8 (Judgment of Tribunal Cantonal in French dt.02.11.1999), A.10 (Judgment of Tribunal Cantonal in French dt.14.04.2000 & A.12 (Judgment of Tribunal Federal dt. 28.01.2000).
71)As per Ex A.7 i.e English translation of Ex A..6 Judgment of Tribunal
Cantonal in French dt. 21.04.1999 at page 3 para 2 by letter dt. 15.12.1997 to the Office. Mahmood Hussain Khan (D6) confirmed all the rights of his brother Altaf in respect of both properties.
72)The claim of defendant No.9/4 is rejected as per Exs A.8, A.10 and
A.12.
73)Ex A.48 is a copy (not original) of letter dt.25.07.2002 written by the
Altaf Hussan Khan to surrender entire schedule property in the name of his counsel. The authority of Ex A.48 is doubtful as it is photostat copy letter, however this transfer took place pending IA No. 500/1994 in OS No.
361/1994 and it refers to item No.1. Ex A.4 i.e Lower Court judgment in
French dt.17.09.1999 indicated that Altaf Hussain Khan himself gave declaration at the Office of Bankruptcy and the legal proceedings of Morges,
Switzerland and had gifted the property to his son.
74)Exs A.12 and A.38 goes to show 1/5th undivided share of Altaf
Hussan Khan.
50OS 164-05 & OS 64-09
75)The Auction Sale Certificate in respect of object No.2 (Himayathnagar
Property) never contested by defendant No.10 or by defendant No.4 and defendant No.3 which is evident from the cross examination of Dw.1.
76) The plaintiffs have relied on Exs A.1 to A.58 in support of the the case the defendant No.10/defendant No.5 along with Khan Brothers not contested against the Swiss judgments declaring them as codebtors and their liability. As seen from Ex A.13 (English translation of Ex A.12) judgment of Tribunal Federal dt. 28.01.2000 court of Switzerland the brothers of Hussain Khan confirmed one community by rights of undivided in the buildings established that or one undivided in the buildings as the object. The appeal of defendant No.9/defendant No.4 was rejected with the said observation. So the arguments of Defendant No.9/defendant No.4 that the ownership of defendant No.9/defendant No.4 has to be proved before proceeding further against him is not acceptable. The observation in OS No.
390/2004 before the X Addl. Chief Judge, City Civil Court, Hyderabad also in favour of the plaintiff to proceed against the share of defendant
No.9/defendant No.4 in item No.2 i.e Himayathnagar property. Ex A.1 in OS
No. 64/2009 becomes final to believe item No.2 Himayathnasgar property also purchased by the 1st plaintiff.
77)Pw.1 is examined in OS No. 164/2005 who is the GPA of plaintiff. The said Ali Asgar Ceizar, the General Power of Attorney of plaintiff No.1 is also further examined as Pw.2. Since he was holding assignment of the property and by Act of transfer, the became the auction purchaser (first plaintiff).
The oral evidence of Pws.1 & 2 are in support of the plaintiffs case on oath and through them the documents are marked.
51OS 164-05 & OS 64-09
78) Their evidence put together establishing the facts the relationship between the parties, the claim against the defendants (D10 and D9). The property was given D.14 for development, D6 & D.10 are the owners of the properties, Defendant No.7 to 9, D.1 to D.5, D.11 to D.13 and D.15 and D.16 and some others also the purchasers in the property fell to the share of the builder.
79)The suggestion put to Pw.1 that Exs A.1 & A.34 are not valid is denied by Pw.1. It is also further admitted through the cross examination by defendant No.11, defendant No.13 and defendant No.16, the property was developed in the ratio of 55: 45 in respect of the builder and owner by virtue of development agreement dt.01.08.1982. It is also further admitted that defendant Nos. 6 to defendant No.10 are maternal uncles and the claim of the plaintiffs is based on Ex A.1 (Sale Certificate) which is 22.5%. Pw.1 is not claiming any share in the built up area, except the build up area, the property sold to defendant Nos.7 to 9 by defendant No.14.
80)The defendant No.10 is examined as Dw.1 in OS No. 164/2005. the defendant No.4 is examined as Dw.1 in OS No. 64/2009. One P.Sudhakar
Reddy is examined as Dw.2 on behalf of the defendants in OS No. 164/2005.
82)Dw.1 in his chief evidence has stated lack of jurisdiction of the Indian
Courts, proceedings taken up earlier in OS No. 390/2004 and OS No.
361/1994 and also the stand taken by the party that item No.2 owned and possessed by defendant Nos. 8 & 9. In the chief examination, he further submitted the mense profits cannot be claimed as any ascertained amount and now showing the prosecution of bankruptcy District Morges, Switzerland is valid but not valid in Indian Courts.. Through him (D.10) Ex B.15 (Letter 52OS 164-05 & OS 64-09 dt.21.09.2012) is only marked. In the cross examination of Dw.1 it came to light that he was a qualified Architect in India and he can read and able to understand and various judgments passed in French Exs A.1 to A.33. He also admitted that the plaintiff No.1 has filed the suit for recovery of money in Switzerland and his properties were auctioned in Swiss i.e suit schedule property (OS No. 164/2005) i.e item No.1). He admitted that the sale certificate was issued Exs A.1 to A.4 and he did not file any appeal but defendant No.9 challenged the issuance of the sale certificate before Higher courts at Swiss and the said action was conducted in Switzerland stating that he had property at Himayathnagar. But he does not know what happened in the appeal preferred by Defendant No.9. He also admitted that they have not taken any defence about the attachment of properties already at Hyderabad no auction certificate will be issued. He further admitted that he declared that all his properties before the Swiss court and he also admitted that as he failed to declare his properties in India he was convicted and was sentenced for one and half month and he was asked to pay fine as ordered in Ex A.38 (Judgment given by Tribunal of Police dt. 07.05.2002). It is also admitted by him that Bankruptcy that insolvent is same in
Switzerland and recovery department known as “De Pour suite at Morgue”.
He admitted that sale certificate (Ex A.2) issued by Swiss court is valid but not in India. It is true that he stated that the sale proceedings of his share in the suit schedule property has to be sent Bankruptcy court. He further admitted that he did not file any revision questioning the orders passed in IA
No. 569/2007 dt. 02.11.2011. He also did not dispute Exs B.1 to B.4. As per Ex B.4 attachment order was also passed in respect of both properties.
He also admitted that Ex B.15 showing the litigation between the plaintiff
No.1 and himself at swiss and no other supporting document is filed. He did 53OS 164-05 & OS 64-09 not issue any legal notice tot he plaintiff questioning the sale of the property at Swiss.
83)The evidence of Dw.1 (defendant No.4) in OS No. 64/2009 is mainly that item No.2 (Himayathnagar) belongs to him and defendant denied that defendant 5 has claimed item No.1 & 2 of Ex B.5 (Docket Order in IA 500/1994 in OS No. 361/1994) before Swiss court. He denied that defendant surrendered item 1 & 2 of Ex B.5 to the office of Bankruptcy and prosecution, Switzerland. He also denied the suggestion that in item Nos.2 of Ex B.5 the defendant No.5 has a share. He denied that document No.8 para 4 of the judgment states that he and others admitted that defendant
No.5 has share in item No.2 of Ex B.5.
84)It was suggested to Pw.1 in OS No.64/2009 that he was permanent resident of Habsiguda, falsely claiming that he may save trips to Swiss, he has not mentioned any amount specifically for claim of mense profits. The claim of mense profits is without any basis and no documents were filed and were denied by Pw.1. The chief examination affidavit of examination of Dw.2 in OS No. 164/05 was filed but he was not subjected to cross examination by other defendants. A memo filed to eschieve the evidence of Dw.2 on 03.03.2021.
,
85)So from the above evidence on record, the facts proved or established in favour of the plaintiffs that the first plaintiff is the auction purchaser of the schedule property from the Swiss court in both the suits. Therefore, the plaintiffs have established their case against the defendants. The suit schedule properties are located at Chapel road and also at Himayathnagar 54OS 164-05 & OS 64-09 both were purchased by the auction purchaser/1st plaintiff in the Swiss court in which the first plaintiff has acquired ownership rights. Whether the other defendants i.e defendant Nos. 3 & 4 are owners of the item No.2 cannot be reopened, since the plaintiff Nos. 1 & 2 approached this court basing on the judgments of foreign court invoking the jurisdiction of the court in India under Section 13 & 14 of the Code of Civil Procedure. The sale certificates in Ex A.1 in both suits are not questioned by the opposing party on any other ground as such made them as valid and binding.
Therefore, the auction sale certificate dt. 27.09.2004 in both suits is valid and binding on the defendants /i.e Defendant No.10 in OS No. 164/2005) and defendant No.5 in OS No. 64/2009.
86)As per the facts of the case there are alleged purchasers of the suit schedule property (OS No. 164/2005) from the developer, who is entitled for 55% of the share in the suit schedule property. The share of owners (defendant No.6 and 10 in OS No. 164/2005) was 45% share in the suit schedule property and the remaining 55% share is in the hands of the builder cum developer. As on today there was no division of the suit schedule property by metes and bounds. Therefore, the alleged purchasers are at liberty to seek their remedies at the time of final decree while dividing and allotting their respective shares to make equities in the final decree petition.
87)The contention of the defendant Nos. 11 to 21 is that defendant Nos. 6 and 10 are the absolute owners of the property at Chapel Road and they gave for development and construction to defendant No.14 under
Development Agreement. Out of 55% share of the builder, the defendant 55OS 164-05 & OS 64-09
Nos. 2 to 5 have purchased property and the same is transferred to defendant Nos. 11 to 15, and the claim made by the plaintiffs is in respect of 45% share of the owner of the property (defednant No.10) in OS No.
164/2005. There was no claim against the developer and the plaintiffs are entitled for partition as per the sale certificate which is valid. There were admissions by Dw.1 that there was money decree passed earlier in the Swiss court in favour of the first plaintiff and the property was auctioned in Swiss court and the undivided share of defendant No.10 in 45% share of the owner share is entitled by the plaintiff and no claim made against the defendant
Nos. 11 to 21.
88)It is notable at this stage the claim of the plaintiffs is against defendant No.10 in OS No. 164/2005 and defendant No.5 in OS No.
64/2009 and there was no specific claim against the defendant Nos. 2 to 5 and defendant Nos.11 to 15 being purchasers who claimed the property of 55% share of the developer (D.14). Therefore, the plaintiffs are entitled from the share if any is from out of the owners share of 45% I.e defendant No.10 and defendant No.6. As per facts of the case the defendant Nos. 6 to 10 are brothers having joint rights in the schedule property out of which the plaintiff No.1 has purchased 22.5% share of the defendant No.10 in the auction held by Bankruptcy court, Switzerland. Therefore, the plaintiffs are entitled for the share of defendant No.10 in the schedule property.
Accordingly the plaintiffs are entitled for decree for partition of the suit schedule property into 2 equal shares between defendant Nos. 10 and 6 (owners) and entitled for 22.5% share of defendant No.10 basing on the auction sale certificates Exs A.1 to A.3. The sale certificates Exs A.1 to A.3 in
OS No. 164/2005 is binding on defendant No.10 and Ex A.1 in OS No. 64 of
56OS 164-05 & OS 64-09 2009 are valid and binding on the defendant Nos. 1 to 5 (defendant No. 6 & 7 are legal heirs of defendant No.1) under Section 13 and 14 of the Civil
Procedure Code. Accordingly issue No.1 OS No. 164 of 2005 and OS No. 64 of 2009 are answered in favour of the plaintiffs.
89)The plaintiff has submitted the averments leading to perjury, fraud, delay occasioned played by the counsel appearing for defendant No.10 &
Defendant No.5 as is not main subject matter in the suits.
ISSUE No.2 in OS No. 164 of 2005 :
90)The plaintiffs claimed basing on the sale certificate 22.5% share from the total suit schedule property. As per the amended plaint, the claim of the plaintiffs is to partition, the suit property into 5 equal shares to defendant
Nos. 6 to 10 and allot 22.5% out of the suit schedule property. As per the sale certificate Exs A1 to A.3 the first plaintiff is auction purchaser of the property of 22.5% out of the share of defendant No.10.
91)As per the facts of the case there are alleged purchasers of the suit schedule property (OS No. 164 of 2005) purchased the property from the developer who entitled for 55% share in the suit schedule property. The share of the owner’s (Defendant No.6 and 10) was 45% in the suit schedule property and the remaining 55% share is in the hands of the builder cum developer. As on today there was no division of the property by metes and bounds. Therefore, the alleged purchasers are at liberty to seek their remedies at the time of final decree while dividing and allotting the respective shares of the property to make their equities.
57OS 164-05 & OS 64-09
92)The defendant No.10 has challenged the case of the plaintiffs on the grounds that the auction sale certificate and other proceedings were not passed by the competent court of law in India and were obtained by fraud not adjudicated by the Indian Courts and the foreign court has no jurisdiction to do so and the suit is not being instituted by proper parties as the alleged GPA holder i.e Plaintiff No.2 is not Indian citizen apart from other grounds. Further item No.2 of the property is jointly owned by defendant
No.10 & 6 and hit by Section 13 of CPC.
93)The contention of the defendant No.6 is that he is not owner of the item No.2 (Himayatnagar). However, the facts turn out from the pleadings not disputed. Originally item No.2 belongs to defendant No.10 and defendant No.6 Mushtaq Hussain Khan and they executed development agreement with defendant No.14 and the owner’s share was 45% and the developer share is 55% and also regarding the purchasers of the property like defendant No.7 to 9 etc. The written statement of defendant No.14 also on the same lines regarding existing of the development agreement between defendant No.6, defendant No.10 and himself on 01.08.1992.
94)As the written statement of defendant No.11 also defendant Nos.6 and 10 are the owners of the property under the registered sale deed document
No.2993/B/61 dt. 30.10.1961. Thus it is made out from the above facts that ownership rights of item No.1 is with defendant Nos.6 & 10 in OS No.
164 of 2005. Int he written statement of the other defendants/purchasers of the property for apportionment of the suit claim from the share of defendant No.10 as stated in the development agreement dt. 01.08.1992 and to estop the plaintiff to claim the share in their properties purchased.
58OS 164-05 & OS 64-09
95)The plaintiff did not prove the averments above stated regarding fraud, foreign court justice is hit by Section 13 of the Code of Civil Procedure and as such the Indian Courts have no jurisdiction of present nature. The rules contained in Section 13 of the Code of Civil Procedure are a substantive law.
The enforcement of foreign judgments is based considerations of justice, equity and good conscious and on the principle of comity of nations, it is accorded internationally recognition. A presumption in favour of foreign court’s competence is rebuttable. The scope of enquiry in respect of foreign award, under Section 7 of the Foreign Awards Act, 1961 is very limited. The
Indian courts do not enquire whether the conclusions reached by s foreign courts are correct. Therefore, this court need not go further enquiry prior to the date of sale certificate in both suits. Therefore, the objection of the contesting defendant No.10 & 6 in this regard in both suits respectively is not tenable. Therefore, the item No.1 Chapel road property has to be notionally divided among defendant No.6 and 10. Out of which the first plaintiff is entitled for 22.5% share as per Ex A.1 sale certificate in OS No.
164/2005, in view of development agreement dt. 01.08.1992 between defendant No.6, defendant No.10 and defendant No.14.
96)As per the finding on issue No.1 in both suits the sale certificate Ex
A.1 is binding on this court as per section 13 & 14 of the Civil Procedure
Code and case of the plaintiffs have been proved. Therefore, as per the sale certificate Exs A.1 the first plaintiff as auction purchaser and the plaintiff
No.2 under deed of assignee under Act of transfer of the same are entitled for 22.5% share of defendant No.10in the suit schedule property. Accordingly, this issue is answered in favour of the plaintiffs.
59OS 164-05 & OS 64-09
97)There are no pleadings that the suit schedule property at Chepal Road fetching how much of rent or profits and there was only rough value of
Rs.50,000/ Swiss Franks shown. There is no evidence to support such averment. The plaintiffs claimed the alleged rents from the date of attachment order dt. 15.10.1994 with interest but Ex A.1 was of the year 2004 vesting the rights of ownership. Therefore the claim for the rents is refused.
ISSUE No.2 in OS No.64 of 2009 :
98)The plaintiffs pray for partition of the property and to declare the shares of the parties in respect of the suit schedule property. Admittedly the defendant Nos. 6 to 10 are the owners of the property for which no dispute.
The sale certificate in the claim of the first plaintiff is valid and binding on the defendants as per the finding that issue No.1. As the plaintiffs have proved their case, they are entitled for passing of preliminary decree for partition and defendant Nos. 1 to 5 are entitled for 1/5th share in the suit schedule property. Accordingly, the plaintiffs are entitled to pass a preliminary decree for partition allotting 1/5th share each of the parties/ owners of the suit schedule property. Accordingly this issue is answered in favour of plaintiffs..
ISSUE No.3 in OS No.64 of 2009 :
99.The finding in issue Nos. 1 & 2 are goes in favour of the plaintiffs, and therefore, and the sale certificate which is binding and valid on the defendant Nos. 1 to 5 in respect of the suit schedule property. Therefore, the plaintiffs are entitled for future mense profits from the date of Ex A.1 60OS 164-05 & OS 64-09
100)The plaintiffs are also claiming arrears of rent and interest to a tune of
Rs.27’417’600.. towards 1/5th share of the plaintiff from the year 1994 till the realization of the rents approximately. There is no substantially evidence proving that the occupation of the property by persons on rent and the quantum of rent. Hence cl;aim is not sustainable and is rejected.
101) ISSUE No.4 in OS NO.64 of 2009 : In the result, the suit is decreed preliminary decree is as follows.
a) The suit of the plaintiffs is decreed for partition of the the schedule property into 5 shares and for separate possession and allotting one such share to defendant No.5 by metes and bounds.
b) The 1/5th share of defendant No.5 is allotted to 2nd plaintiff, the assignee of 1st plaintiff.
c) The suit of the plaintiffs is also decreed for future mense profits from the date of Ex A.1 till the date of realization on filing separate application under
Order 20 Rule 12 of CPC.
d) The claim of rents is refused.
e) Each party shall bear their own costs.
102) ISSUE No.3 in OS NO.164 of 2005 :
In the result, the suit is decreed preliminary decree as follows.
a) The suit of plaintiffs is preliminarily decreed for partition of the suit schedule property into 2 equal shares in 45% share of owners (D.6 & D.10) and for separate possession, by metes and bounds.
b) The 22.5% share of defendant No.10 i.e Altaf Hussain Khan out of 45% share of the owners i.e defendant Nos. 6 & 10, is allotted to plaintiff No.2, the assignee of the plaintiff No.1 61OS 164-05 & OS 64-09
c) The suit is decreed for determination of the future mense profits from the date of Ex A.1 till the date of realisation on filing separate application under
Order 20 Rule 12 CPC at the time of Final Decree proceedings on appointing an advocate commissioner.
d) The claim of rents is rejected.
e) Each party shall bear their own costs.
Partly typed to my dictation, transcribed and typed by him, corrected and pronounced by me in the open court, on this the 10th day of March, 2021.
Sd/ (Smt Koka Radha Devi) FAC II Additional Chief Judge, City Civil Court, Hyderabad
Appendix of Evidence Witnesses examined For the Plaintiff :
P.w1:Ali Asghar Ceizar (GPA holder of Plaintiff No.1)
P.w2:Ali Asghar Ceizar
For the defendants :
D.W1: Altaf Hussain Khan
D.W2: P.Sudhakar Reddy
Documents Marked In OS No. 164 of 2005
For the Plaintiff :
Ex A.1Original SALE CERTIFICATE issued by The Office of Prosecution and Bankruptcy, District of Morges, Switzerland, Ref: PC dated 27 092004. Ex A.2English Translation of Sale Certificate Ex A.3Auction letter original in French Ex A.4Lower court Judgment (Original) in French (17.9.1998) Ex A.5English Translation of A4 Ex A.6Judgment (Original), Tribunal Cantonal in French (21.4.1999) 62OS 164-05 & OS 64-09
Ex A.7English Translation of A6 Ex A.8Judgment (Original), Tribunal Cantonal in French (2.11.1999) Ex A.9English Translation of A8 Ex A.10 Judgment (Original), Tribunal Cantonal in French (14.4.2000) Ex A.11 English Translation of A6 Ex A.12 Judgment (Original), Tribunal Fédéral (28.1.2000) Ex A.13 English Translation Ex A.14 Letter to counsel of Plaintiff No.1 (7.2.2000) Ex A.15 Judgment (Original), Tribunal Cantonal in French (1.3.2004) Ex A.16 English Translation of A15 Ex A.17 Counter Affidavit in French Ex A.18 English Translation Ex A.19 Judgment, JUGE D’INSTRUCTION DE L’ARRONDISSEMENT DE LA COTE in French (26.11.2010) Ex A.20 English Translation of A19 Ex A.21 Counter Affidavit in French Ex A.22 English Translation of A21 Ex A.23 Judgment (Original), Tribunal FÉDÉRAL in French (11.2.2003) Ex A.24 English Translation Ex A.25 Verbal Statement Hearing (Original) in French (D8) (14.7.2008) Ex A.26 English Translation Ex A.27 Verbal Statement Hearing (Original) in French (D6) (14.7.2008) Ex A.29 English Translation Ex A.29 Verbal Statement Hearing (Original) in French (D10) (12.8.2008) Ex A.30 English Translation Ex A.31 Notice issued by Plaintiff No:1 (Ex.A31) (31.1.2011) Ex A.32 CC of Judgment in O.S 390 of 2004 (8.8.2007) Ex A.33 CC of CRP No.4340 of 2003 Ex A.34 ASSIGNMENT DEED of Plaintiff No: 1 (9.7.2007) Ex A.35 ACT OF TRANSFER (10.2.2005) Ex A.36 Attestation of change in Creditor (25.5.2010) Ex A.37 English Translation Ex A.38 Judgment given by Tribunal of Police (Marked by Advocate Commissioner) (7.5.2002) Ex A.39 CC of Judgment District court Le Cote, Switzerland Ex A.40 English Translation of A39 Ex A.41 CC of order of Tribunal cantonal, Switzerland filed against Ex.A39 by me (12.8.2014) Ex A.42 English Translation of ExA41 Ex A.43 CC of Judgment in Criminal Appeal (28.10.2014) 63OS 164-05 & OS 64-09
Ex A.44 English Translation of A43 Ex A.45 Determinations to Tribunal of Contonal in Criminal Appeal (22.10.2014) Ex A.46 English Translation of A45 (Marked in P.W1) Ex A.47 Notice to Mazhar Ali, advocate (Marked in P.W2) (17.12.2017 Ex A.48 D10 Statement (10.3.2015) Ex A.49 Letter dated 25.7.2002 (D10/Altaf H. KHAN) Ex A.50 Minutes of Public Auction on property of D10 wife. (14.12.2017) Ex A.51 Counter filed by Y R3 and R4 (CCCA255 OF 2007) Ex A.52 ORDER – Hon’ble High Court of AP/TS CCCA255 OF 2007 (20.10.2008) Ex A.53 SealState of Vaud the Tribunal District of LA COTE. (29.12.2017) Ex A.54 Notice of next closing (17.1.2008)
For the Defendants :
Ex B.1CC of plaint in O.S 361/1994 Ex B.2CC of W.S in O.S 361/1994 Ez B.3CC of I.A 500/1994 in O.S 361/1994 Ex B.4CC of Exparte order in I.A 500/1994 in O.S 361/1994 Ex B.5Docket order in I.A 500/1994 in O.S 361/1994 Ex B.6CC of I.A 168/1999 in OS 361/1994 Ex B.7CC of counter of R1 in I.A 168/1999 in OS 361/1994 Ex B.8CC of order in I.A 168/1999 in OS 361/1994 Ex B.9CC of I.A 949/1999 in O.S 361/1994 Ex B.10CC of counter of R1 in I.A 949/1999 in O.S 361/1994 Ex B.11CC of order in I.A 949/1999 in OS 361/1994 Ex B.12CC of I.A 1189/2002 in OS 361/1994 Ex B.13CC of counter of respondent inI.A 1189/2002 in OS 361/1994 Ex B.14CC of order in I.A 1189/2002 in OS 361/1994 Ex B.15Letter dated 21.09.2012
Witnesses examined
For the Plaintiff : For the defendant : P.w1:Ali Asghar Ceizar Dw.1 : Mohd. Hussain Khan 64OS 164-05 & OS 64-09
Documents Marked in OS No.64 of 2009
For the Plaintiff :
CC of SALE CERTIFICATE issued by The Office of Prosecution Ex A1and Bankruptcy, District of Morges, Switzerland, Ref: PC
dated 27092004.
Ex A2 CC of English Translation of Sale Certificate
Ex A3 CC of AUCTION letter original in French
Ex A3A Copy of Auction letter (4 pages)
Ex A4 CC of Lower court Judgment in French (17.9.1998
Ex A5 CC of English Translation
Ex A6 CC of Judgment Tribunal Cantonal in French (21.4.1999)
Ex A7 CC of English Translation
Ex A8 CC of Judgment Tribunal Cantonal in French (2.11.1999)
Ex A9 CC of English Translation
Ex A10 CC of Judgment Tribunal Cantonal in French (14.4.2000)
Ex A11 CC of English Translation
Ex A12 CC of Judgment Tribunal Fédéral (28.1.2000)
Ex A13 CC of Judgment Tribunal Cantonal in French (1.3.2004)
Ex A14 CC of English Translation
Ex A15 CC of Counter Affidavit in French
Ex A16 CC of English Translation
Ex A17 CC of JUDGMENT, JUGE D’INSTRUCTION DE L’ARRONDISSEMENT DE LA COTE in French (26.11.2010)
Ex A18 CC of English Translation
Ex A19 CC of Counter Affidavit in French
Ex A20 CC of English Translation
Ex A21 CC of Judgment Tribunal FÉDÉRAL in French (11.2.2003)
Ex A22 CC of English Translation
Ex A23 CC of Verbal Statement Hearing in French (D8) (14.7.2008)
Ex A24 CC of English Translation
Ex A25 CC of Verbal Statement Hearing in French (D6) (14.7.2008)
Ex A26 CC of English Translation
EX A27 CC of Verbal Statement Hearing in French (D10) (12.8.2008)
Ex A28 CC of English Translation
Ex A29 CC of Notice issued by Plaintiff No:1 (Ex.A31) (31.1.2011)
Ex A30 CC of Judgment in O.S 390 of 2004 (8.8.2007) 65OS 164-05 & OS 64-09
Ex A31 CC of CRP No.4340 of 2003
Ex A32 CC of ACT OF TRANSFER (10.2.2005)
Ex A33 CC of Attestation of change in Creditor (25.5.2010)
Ex A34 CC of English Translation
Ex A35 CC of Judgment given by Tribunal of Police (Marked byAdvocate Commissioner) (7.5.2002)
Ex A36 CC of Judgment District court Le Cote, Switzerland
Ex A37 CC of English Translation
Ex A38 CC of order of Tribunal cantonal, Switzerland filed against Ex.A39 by me (12.8.2014)
Ex A39 CC of English Translation
Ex A40 CC of Judgment in Criminal Appeal (28.10.2014)
Ex A41 CC of English Translation
Ex A42 CC of Determinations to Tribunal of Cantonal in Criminal Appeal (22.10.2014)
Ex A43 CC of English Translation (Marked in P.w1)
Ex A44CC of Notice to Mazhar Ali, advocate (Marked in P.W2) (17.12.2017)
Ex A45 CC of D10 Statement (10.3.2015)
Ex A46 CC of Letter dated 25.7.2002 (D10/Altaf H. KHAN)
Ex A47 CC of Minutes of Public Auction on property of D10 wife. (14.12.2017)
Ex A48 CC of Counter Deed by R3 and R4 (CCCA255 OF 2007)
Ex A49 CC of ORDER – Hon’ble High Court of AP/TS CCCA255 OF 2007 (20.10.2008)
Ex A50 CC of SealState of VAUD the Tribunal District of LA COTE. (29.12.2017)
Ex A51 CC of NOTICE OF NEXT CLOSING (17.1.2008)
Ex A52 CC of AOA THE ACT OF ACCUSATION against Altaf H.Khan (2.5.2018)
Ex A53 Xerox copy of Prosecution and bankruptcies of cossonay
dated 24.9.1996
Ex A54 Xerox copy of Judgment Rendered by Tribunal of Police dated 11.3.2019
Ex A55 CC of Assignment deed (9.7.2007)
Ex A56 CC of Judgment given by Tribunal of Police (7.5.2002)
Ex A57 CC of Judgment of the HOn'ble Suprement court (Tribunal Federal Switzerland) (4.2.2000)
Ex A58 CC of Letter to counsel of plaintiff No.1 66OS 164-05 & OS 64-09
For the defendants :
Ex.B1 Xerox Copy of Judgment in English dated 26.4.2004
Ex.B2 Xerox copy of Letter of counsel for plaintiff in French
Ex.B3 Xerox copy of English Translation
Ex.B4 CC of Plaint
Ex.B5 CC of order in I.A 500/1994 in OS 361/1994
Ex.B6 CC of order in I.A 168/1999 in OS 361/1994
Ex.B7 CC of order in I.A 949/1999 in OS 361/1994
Ex.B8 CC of order in I.A 1189/2002 in OS 361/1994
Sd/ (Smt Koka Radha Devi) FAC II Additional Chief Judge, City Civil Court, Hyderabad