Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Order in NM 93/2020 in Suit 9551/93
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 93 OF 2020
IN
SUIT NO. 9551 OF 1993
CNR NO. : :MHCC010002562020
Bhimchhya Cooperative Housing
Society Ltd. & Ors. …. Plaintiffs
Versus
M/s. F.K. Construction & Ors. ….Defendants
Appearance:
Adv. Smt. Prachi Khandelwal for plaintiffs.
Advs. Shri. Udaya Sankar Samudrala along with Shri. Somnath Pandey
for defendant nos. 3,4,6,9,11 &17 to 23.
Adv. Smt. Pushpa Thapa for defendant no. 25.
CORAM : SMT. S.S. NAGUR,
JUDGE, (C.R.NO.04)
DATE : 01.12.2021
ORAL ORDER
(Dictated in open Court)
The plaintiff has filed the Notice of Motion to direct the
Court Receiver appointed by order dated 02.08.1995 to visit the
building of the plaintiff society.
2. The Notice of Motion is supported by Affidavit of Rajan
Kamble, Chairman of the plaintiff no. 1 society. The plaintiff stated that
the suit is filed against the defendant no. 1 & 2 for declaration that they
have no right, title or interest in respect of building belonging to the
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plaintiff society being “A” and “B” wing totally consisting of 25 flats
situated at Plot no. 42, Survey No. 111D, Amboli Char Bunglow, near
RTO, Andheri (West). The declaration is also sought that the defendant
no. 3 to 17 are rank trespassers in respect of flat belonging to the
plaintiff society.
3. The plaintiff stated that they filed interim application for
appointment of Receiver and other reliefs. The Hon'ble High Court by
order dated 02.08.1995 appointed the Court Receiver with a direction
to take formal possession of the flat in the building belonging to the
plaintiff society and allow the occupants to use the said flats as an agent
of the Receiver. The Court Receiver on 30.10.2007 filed report after
visiting the building of the plaintiff and verified the occupants. The
plaintiff has stated in para 5 about the flats occupied/locked/leave and
license/Court Receiver's possession in chart. The suit is for evidence of
the plaintiff. However, in view of third parties occupying the flats
belonging to the members of the plaintiff society, therefore to ascertain
that the occupant do not further transfer their possession to third party
to defect the decree, has prayed to give direction to the Receiver to visit
the suit property and file report about the actual possession of the said
flats.
4. The defendant no. 10 filed reply through Affidavit of Hira
Singh for himself and on behalf of defendant no. 3, 4, 6, 9, 11, 17 to 23
and denied the contents of the Notice of Motion stating that the plaintiff
is trying to prolong the trial of the suit pending since 2015 for recording
evidence of the plaintiff. The Court Receiver was appointed whereby the
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Court Receiver was directed to allow the occupants (these defendants)
as the agents of the Court Receiver. Hence, prayed to reject the Notice
of Motion.
5. Heard Advocate Smt. Prachi Khandelwal for plaintiffs,
Advocate Shri. Udaya Sankar Samudrala along with Shri. Somnath
Pandey for defendant nos. 3,4,6,9,11 &17 to 23 and Advocate Smt.
Pushpa Thapa for defendant no. 25. Perused the contents of the Notice
of Motion and reply supported by Affidavit.
6. The plaintiff is seeking direction to be given to the Receiver
to verify the occupation of the flats of the suit property so that the
plaintiff will be able to bring on record about the possession/occupants
of the suit flats. The plaintiff filed Notice of Motion No. 2507 of 1993.
The said Notice of Motion was decided on 02.08.1995. The Hon'ble
High Court has passed the following order :
“In my opinion ends of justice will be served if the Receiver is
appointed in respect of the flats in possession of the defendant Nos. 3
to 24 excepting defendant Nos. 5,7,8,15 and 16 and they are
appointed as agents of the Receiver in respect of their respective flats in
their possession without security and royalty. It is made clear that this
order will be subject to the result of the su0it pending in the City Civil
Court. Liberty to the plaintiffs to apply for variation of this order after
the decision of the pending Motion in the City Civil Court. Notice of
Motion is disposed of accordingly with no order as to costs.
All the defendants waive service of writ of summons and they
agree to file their written statement within eight weeks”.
7. The plaintiff has not stated anything about the
decision/pendancy of the suits in the City Civil Court. In the above
order, there is liberty given to the plaintiff to apply for variation of this
order after the decision of the pending Motion in the City Civil Court.
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8. The plaintiff instead of proceeding with the suit by filling
evidence Affidavit is trying to prolong the dispute by filling the interim
applications. The order passed in the Notice of Motion shows that the
Receiver is appointed in respect of the flats of the defendant no. 3 to 24
except defendant no. 5, 7, 8, 15 and 16. The occupants of the flats are
appointed as agents of the Court Receiver.
9. Considering the above facts on record, I hold that the
Notice of Motion is not tenable. It is filed only to prolong the trial of the
suit. Hence, pass following order ::
ORDER
1) The Notice of Motion is rejected.
2) No order as to costs.
3) Direction is given to the plaintiff to proceed with
the suit expeditiously failing which further orders
will be passed.
4) Accordingly, the Notice of Motion is disposed of.
(SMT.S.S.Nagur)
Date :01/12/2021 Judge
City Civil Court,
Greater Mumbai.
Pronounced on : 01.12.2021
Dictated on : 01.12.2021
Typed on : 04.12.2021
Checked & Signed on : 06.12.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
07/12/2021 11.15 a.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
01/12/2021
Judgment/order signed by P.O on 06/12/2021
Judgment/order uploaded on 07/12/2021
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