Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1151/19 (Suit-225/19)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1151/2019
(CNR No.MHCC010029802019)
IN
S.C. SUIT NO. 225/2019
Snehalata Biru Yegde ..Plaintiff
V/s.
1. Lalaji Nathi Prajapati
2. Kantabhen Lalaji Prajapati ..Defendants
Appearance:
Ld. Adv. Mr.Kamlesh Tiwari for plaintiff.
Ld. Adv. Mr.Punjabi for defendants.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 22.12.2020.
ORAL ORDER
1. I have perused draft Notice of Motion supported by an
affidavit of plaintiff along with plaint and documents filed with the
plaint, as per list at pg.15. I have heard Adv. Ms. Siraj Khan h/f. Adv.
Mr. Kamlesh Tiwari for the plaintiff on the notice of motion. None
present for the defendant today as well as on last several dates. As per
Roznaman, last appearance of the defendant in person was on
25.2.2020. In the month of April, 2020, due to COVID19 pandemic,
functioning of the court was restricted till it was recently resumed.
2. On 16.12.2020, Ld Counsel for the plaintiff appeared and
submitted that, with reference to the order passed by this court dated
25.2.2020 earlier order was continued regarding statusquo. The
hearing of the present Motion has been expedited by the Hon’ble High
Court. She submitted that the defendants have failed to submit their
affidavit in reply to the notice of motion as well as their WS inspite of
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giving several chances. Hence, as per order dated 11.12.2019, the
notice of motion has proceeded without reply of the defendants. She
submitted that, the defendants are involved in some illegal construction
activities on the suit premises which can be seen from the photographs,
which she has produced before the court and prayed for passing
necessary orders as per clause(b) of the notice of motion. On the
previous date, the Ld. Counsel for the plaintiff was directed to bring on
record necessary facts regarding change in the circumstances by
producing photographs or other documents supported by pleadings so
as to enable this court to pass necessary orders. Accordingly, she has
produced documents and material on record.
3. Ld. Counsel for the plaintiff has served the defendants with
Praecipi on 17.12.2020 regarding proceeding in the present notice of
motion/ hearing and further proceedings in the notice of motion, but
the defendants had refused to accept the service. Ld. Counsel for the
plaintiff tendered an affidavit alongwith documents including Roznama
of the proceeding and photographs of the suit site on 16.12.2020 as per
directions of this court and same have been taken on record.
4. It can be seen from prima facie material and documents on
record that, the defendants have been indulging in some acts of
interfering with the possession of the plaintiff over the suit property i.e.
Zopada on Plot no. 2, Acharyawadi Chembur 47, 121/177, Zopada No.
783, Wadavali Village, Dr. C. G. Road, Chembur, Mumbai400 074 and
the plaintiff is apprehending her dispossession and creation of third
party interest by the defendants during the pendency of the suit.
5. Considering the photographs filed on record and other
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documents by the plaintiff, I am satisfied that, prima facie case is made
out for appointment of Court Receiver for preservation and protection
of the suit property during pendency of the suit. During the course of
hearing , Ld. Counsel for the plaintiff was asked to suggest name of any
practicing Advocate in this court from the panel of Advocates,who can
be appointed as a Court Receiver by this court. After making enquiry
from the office, Ld.Counsel for the plaintiff informed that, there is no
approved list/ panel of advocates prepared for being appointed as Court
Receiver by this court. Hence, on oral directions, Ld. Counsel for the
plaintiff has proposed names of five Advocates, who can be appointed
as Court Receiver. After verifying the said list of five Advocates, Adv.
Mr. Vinod Kumar B. Singh, who is present before the court today and
has consented to accept the assignment to act as court receiver by filing
pursis to that effect. The said pursis is taken on record and on that
basis, I find it appropriate to appoint him as a ‘Court Receiver’, as per
following order :
ORDER
1. Notice of Motion No.1151/19 is hereby allowed and made
absolute.
2. As to prayer clause (a), adinterim relief of statusquo
granted by the Hon'ble High Court and continued by this
court thereafter, is hereby confirmed.
3. As to prayer clause (b), prayer of plaintiff for appointment
of Court Receiver is hereby granted and advocate Mr. Vinod
Kumar B. Singh, r/o 3rd floor, K. K. Chember, P. T. Marg, D.
N. Road, Fort, Mumbai400 001, is hereby appointed as
Court Receiver on the basis of purshis at Ex5 filed by him
before this court, with following terms:
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(a) Adv. Mr.Vinod Kumar B. Singh is hereby appointed as
‘Court Receiver’ without security, with all power under
order XL (d) of CPC.
(b) The plaintiff shall pay an amount of Rs. 5,000/ per visit to
the suit site to the Court Receiver towards his
remuneration as agreed by him vide purshis at Exh.5.
(c) The Court Receiver is directed to take formal possession of
the suit premises situated at Zopada on Plot no. 2,
Acharyawadi Chembur 47, 121/177, Zopada No. 783,
Wadavali Village, Dr. C. G. Road, Chembur, Mumbai40007
as described in para no. 1 of the plaint, during the
pendancy of the suit.
(d) The Court Receiver shall with the aid and assistance of the
plaintiff, affix some mark/name plate on the suit site
mentioning taking of his formal possession as
representative of the court, giving details and description
of the suit property and the date of taking possession.
(e) The Court Receiver shall be entitled to take
assistance/protection from the police authority, while
taking possession of the suit premises, if the same is
resisted by the defendants or any other persons on behalf
of the defendants.
(f) The Court Receiver is also directed that after taking
possession of the suit premises, he shall appoint the
plaintiff as his agent in respect of the suit premises, on
executing necessary agency agreement with the plaintiff in
that regard which shall be continued during the pendancy
of the suit. The Court Receiver shall submit his report
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regarding taking his formal possession of the suit premises
on the next date.
(g) Thereafter, the plaintiff shall submit an undertaking to this
court that she shall abide by the terms and condition of the
agency agreement during the pendancy of the suit and
shall also maintain account of the expenses incurred by her
in respect of the suit premises and furnish the same to the
court as an when required, along with report to be
submitted once in a year commencing from 01.01.2021
during pendancy of the suit.
Notice of Motion is disposed of accordingly.
Sheristedar is directed to give authenticated copy of today's
Roznama to the Counsel for the plaintiff and the Court
Receiver for their information and necessary action and
compliance.
(V.V. Vidwans)
Date: 22.12.2020 Judge, City Civil Court,
Gr. Bombay (C.R. 03)
Dictated on : 22.12.2020
Transcribed on : 23.12.2020
Draft given to HHJ on : 23.12.2020
Signed by HHJ on : 23.12.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 24.12.2020
TIME: 11.40 am (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 22.12.2020
Judgment/ order signed by P.O on 23.12.2020
Judgment/ order uploaded on 24.12.2020
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