Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 108 & 164 ..1.. Suit No.357/11
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY.
NOTICE OF MOTION No.108 OF 2018
&
NOTICE OF MOTION NO.164 OF 2018
IN
S.C.SUIT No.357 OF 2011
1. Umrao Keshav Singh ]
2. Omkar Keshav Singh ]
3. Jaiprakash Keshav Singh ]…. Plaintiffs.
V/s.
1. Dinanath Purshottam Singh ]
2. Ashutosh Dinanath Singh ]
3. Bimladevi w/o Ramadhar Bachanu Singh ]
4. Krishnawati Singh D/o Ramadhar Bachanu Singh]
5. Reena Singh D/o Ramadhar Bachanu Singh ]
6. Omprakash Ramadhar Bachanu Singh ]..Defendants.
Adv. Shukla for plaintiffs.
Adv. R.R. Sharma for D1, D3 and D6.
Adv. Chetan Yadav for D2.
CORAM : Dinesh P. Surana,
Court Room No.3
DATED : 22nd January, 2018
ORAL ORDER
Notice of Motion No.108/2018 is taken out by the defendant
No.1 and Notice of Motion no.164/2018 is taken out by the defendant
No.2, who is son of defendant no.1. The reliefs which are sought in both
the Notice of Motions are common. The defendants have prayed for
implementation and enforcement of the Consent Terms agreed between
the parties in S.C. Suit No.1175/1997 in pursuance to the family
arrangement dated 08.09.1994.
-- 1 of 8 --
NM 108 & 164 ..2.. Suit No.357/11
2. I would like to mention here that the family arrangement
dated 08.09.1994 was executed between (1) Ramadhar, (2) Dinanath
and (3) Keshav and his three sons. Dinanath is defendant No.1 in the
present suit. The plaintiffs are LRs of Keshav Singh. The defendant
Nos.3 to 6 are LRs of Ramadhar Singh.
3. Advocate for defendant Nos.3 to 6 has admitted that the
defendant Nos.3 to 6, LRs of Ramadhar Singh have assigned their rights
in the Consent Terms and family arrangement in favour of the
defendant No.2. By way of family arrangement dated 08.09.1994, on
the basis of which the Consent Terms were filed in the Court in another
Suit No.1175/1997 and accepted by the court as an undertaking given
by all the parties to the present suit except the defendant No.2, who
was not the party to the consent terms or the family arrangement. As
per the Consent Terms, Keshav Singh was entitled to conduct business
in Shop No.5 and also one room below the staircase of the building
known as Chandra Bhavan alongwith a panshop situate at 5th Khetwadi
Backroad, Mumbai 04, for the period of one year commencing from
01.01.1997 to 31.12.1997 by rotation. Keshav Singh has assigned his
rights in pursuance to the family arrangement and Consent terms to his
LRs.
4. In the present suit, the fact is not disputed by either of the
parties that the Consent Terms were executed between the parties. On
perusal of the order sheet dated 27.02.1997 in S.C. Suit No.1175 of
1997, it appears that my brother judge Shri S.P. Davare has accepted
the said Consent Terms as undertaking in following words :
-- 2 of 8 --
NM 108 & 164 ..3.. Suit No.357/11
1. Decree in terms of prayer (a) of the plaint.
2. It is agreed by and between the parties that the plaintiff shall
run the business from 1.1.1997 to 31.12.1997, Defendant No.1
shall run the suit business between 1.1.1998 to 31.12.1998 and
Defendant Nos. 2 to 4 jointly shall run the suit business between
1.1.1999 to 31.12.1999 and continue to do so by rotation after
expiration of this respective terms every year.
3. The plaintiff and the defendant Nos.1 to 4 agree and
undertake to this Hon'ble Court that after their respective terms to
run the suit business as per clause2 above, they shall handover
peaceful possession of the suit business to the other party on the
expiry of their period of running suit business forthwith without
any obstruction or hindrance.
4. Agreed and declared that all the accounts in respect of the
suit business and the suit premises between the plaintiff and
defendant Nos.1 to 4 are completely made up upto 31.12.1996 to
the satisfaction of all of them and the plaintiff and defendants have
no claim of any nature whatsoever against each other in respect of
the suit business and/or the suit premises.
5. Agreed and declared that the defendant No.5 has no right,
title or interest in the suit business.
6. Liberty to the parties to apply.
7. No order as to costs.
5. Irrespective of the fact that now the defendant No.2 in his
reply to the Notice of Motion has contended that the said Consent
Terms are void, his written statement is not on record and he has
already stepped into the shoe of Ramadhar and therefore his contention
at this stage cannot be accepted. As such, the fact remains that the
Consent Terms are binding in between all the parties i.e., Keshav Singh
or his son on one side, Dinanath on second part and heirs of Ramadhar
Singh or the defendant No2, who has stepped into the shoes of
Ramadhar on the third part.
-- 3 of 8 --
NM 108 & 164 ..4.. Suit No.357/11
6. On perusal of the order dated 25.07.2012 in Notice of
Motion No.381 of 2011 taken out by the plaintiffs in the present suit, it
seems that the plaintiffs were allowed to conduct the business for the
block year 2012 to 2014 i.e., from 15.08.2012 to 14.08.2014 for the
reasons stated therein. Therefore, as of fact, the Consent Terms ought to
be acted upon by all the parties even after 14.08.2014. The fact is not
disputed that from 14.08.2014 till date, the plaintiffs are in exclusive
possession of the suit business.
7. It is contended by the Advocates for applicants i.e., the
defendant Nos.1 and 2 that the order of Consent Terms be ordered to
be acted upon one or the other way and argued for implementation of
the Consent Terms. The reply of the defendant No.2 may be drafted
wisely with the prayer that they want to implement the order dated
25.07.2012 in the Notice of Motion No.381 of 2011 however, said order
was passed in pursuance to earlier family arrangement and Consent
Terms only.
8. It is contended by the plaintiffs that the earlier Chamber
Summons No.564 of 2015 taken out by the defendant No.1 under Order
XXI, Rule 35 of the C.P.C. is still pending for adjudication before the
Hon'ble High Court in Writ Petition, as the same was dismissed on
09.05.2015 by this Court, and therefore pending the said Chamber
Summons, wherein the stay is granted by the Hon'ble High Court, the
present Notice of Motion cannot be heard. However, the Hon'ble High
Court in Writ Petition No.7768 of 2015, wherein, the order of Chamber
Summons was challenged, has given liberty to the defendant Nos.1 and
2 to take out their application for implementation of the said order
-- 4 of 8 --
NM 108 & 164 ..5.. Suit No.357/11
dated 25.07.2012 with directions to this court to dispose of the same on
its own merits within the period of 4 weeks from the date of filing.
Therefore, irrespective of the fact that the said Chamber Summons
taken out by the defendant No.1 for the execution of the order was
dismissed by this Court, the Hon'ble High Court has granted liberty to
the defendant Nos.1 and 2 to file appropriate application and therefore
the present Notice of Motion is maintainable and required to be decided
on its own merits, thereby, the dismissal of the Chamber Summons or
pending of Writ Petition challenging the said Chamber Summons will
not come in the way of this Court for deciding the Notice of Motion.
9. The other contention was raised by the Advocate for the
plaintiffs is that in the Chamber Summons and Notice of Motion
No.3321 of 2014 taken out by the defendant No.1 the relief sought are
the same and therefore the common and identical relief cannot be
granted by this Court. However, the fact remains that in the writ, the
Hon'ble High Court has already ordered this Court to decide the present
Notice of Motion by giving liberty to the defendant nos.1 and 2 to file
fresh application. So also, the Notice of Motion No.3321 of 2014 taken
out by the defendant No.1 is already withdrawn by the defendant No.1.
Therefore, the contention of the plaintiff in this regard cannot be
accepted.
10. The basic contention and apprehension of the plaintiffs is
that there is likelihood of creation of third party interest by the
defendant No.1 or 2 in the suit premises and therefore he prayed for
appointment of the Receiver in the suit business. However, except for
the transfer of the electric meter in the name of the defendant No.2 in
-- 5 of 8 --
NM 108 & 164 ..6.. Suit No.357/11
respect of the suit shop, no instances are shown by the plaintiff way of
documentary evidence regarding such creation of third party interest.
Even otherwise till the Consent Terms are in existence, as undertaken
by the three counterparts and they are acted upon, transfer of electric
meter cannot be said to be the creation of third party interest by any
party conducting the suit business. It is also contended by the advocate
of plaintiffs, that the plaintiffs, against the terms and conditions of the
Consent Terms and family arrangement, have already created the third
party interest in favour of the defendant No.2 by way of false and
fabricated documents. However, I would like to mention here that in
the order dated 25.07.2011 in Notice of Motion No.381 of 2011 my Ld.
Predecessor has already dealt with this aspect whereby, it was observed
that it cannot be said to be creation of the third party right. Though the
plaintiff was aware of the fact that the rights are created in favour of
the defendant No.2 in the suit business, the plaintiff has not amended
the suit for incorporating the prayer for setting aside the said Deed of
Assignment by the defendant Nos.3 to 6 i.e., Lrs of Ramadhar Singh in
favour of the defendant No.2. It is highly doubted that whether
assignment of right in between the family members in the family
arrangement can be said to be the creation of third party rights.
11. In the face of record it is apparently seen that from
14.08.2014 the plaintiffs have not handed over possession of the suit
business and the rooms either to the defendant No.1 or defendant No.2
or defendant nos.3 to 6. They are continuing the business in the suit
premises after their tenure, even as per order in Notice of Motion
No.381 of 2011, is expired long back on 14.08.2014. Therefore, on an
average the plaintiffs have enjoyed the suit business and possession of
-- 6 of 8 --
NM 108 & 164 ..7.. Suit No.357/11
the property, wherein the business is being run for the period of 3½
years over and above their term. The present suit is filed for the
declaration that the family arrangement dated 08.09.1989 and Consent
Terms dated 27.02.1997 are legal, binding and subsisting upon all the
parties. Plaintiffs themselves have not abided by the said Consent Terms
or the family arrangement. Therefore, the plaintiffs themselves are not
coming with clean hands. Under such circumstances, without going into
the rights of the parties in the suit premises in the suit business, with
the same observations and with the same analogy which is being
ordered in Notice of Motion No.381 of 2011 dated 25.07.2012, I am of
the view, that both the present Notice of Motions are required to be
disposed off by common order. Hence, the order :
O R D E R
1. Pending the present suit, the plaintiffs are directed to hand over
the possession of the suit premises and the suit business in pursuance to
the Consent Terms read with family arrangement read with ratio laid
down in the order dated 25.07.2012 in Notice of Motion No.381 of
2011, within two weeks from the date of this order to defendant No.1.
2 As the plaintiff have already enjoyed the fruits of the suit business
over and above the period of 3½ years of their term, the defendant
Nos.1 and 2 each will be entitled to enjoy the fruits of the suit business
as per the Consent Terms for the period of 4 ½ years each which
includes the period for which they were entitle to conduct their family
business in pursuance to the Consent Terms and family arrangement.
3. The defendant Nos.1 and 2 have agreed inter say and
mutually to continue with the business and after their period is over,
i.e., after 9 years, they will hand over possession of the suit premises
and the suit business on 31.12.2026 to the plaintiffs for the plaintiffs to
-- 7 of 8 --
NM 108 & 164 ..8.. Suit No.357/11
continue with the same as per the family arrangement and the
undertaking given in pursuance to the Consent Terms before the court
in S.C. Suit No.1175 of 1997.
4. Needless to say that the family arrangement will continue
as per the consent terms and family arrangement from 1st January 2027
onwards.
5. The request of Advocate for the plaintiffs for stay the
operation of the above order for the period of 4 weeks from today to
challenge the said order before the Hon'ble High Court stands rejected,
as there are no bonafides on the part of the plaintiffs as they ought to
have handed over the possession of the suit premises and suit business
for conducting the said business to defendant No.1 on 15.08.2014 itself.
Order is dictated in the open Court when plaintiff No.2 was present.
(Dinesh P. Surana)
Judge, City Civil Court,
Date : 22.01.2018 Gr. Bombay
Dictated on : 22/01/2018
Transcribed on : 23/01/2018
HHJ signed on : 25/01/2018
“CERTIFIED TO BE TRUE & CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
25.01.2018, 11.30 a.m. Mrs. Rajshree K. More
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court Room No.) HHJ Shri D.P. Surana (C.R.No.01)
Date of pronouncement of Judgment/ order 22.01.2018
Judgment/Order signed by the P.O. on 25.01.2018
Judgment/Order uploaded on 25.01.2018
-- 8 of 8 --