Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
MHCC010007452020
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI.
(Court Room No.32)
NOTICE OF MOTION NO.307 OF 2020
IN
COMMERCIAL SUIT No.480 OF 2021
Harshad Popatlal Shah ...Plaintiff
VERSUS
Investor Education & Protection Fund
Authority & Ors. …Defendants
Vaishanavi Mudras, ld. Advocate for plaintiff.
Smita Hartalkar, ld. Advocate for defendant.
CORAM : H.H. JUDGE SHRI SANJIV PRABHAKAR PINGLE,
COURT ROOM NO.32,
O R D E R
(Delivered on 15/03/2025)
1. The present Notice of Motion is pending nearly since from
five years awaiting its faith on merits.
2. By the present Notice of Motion plaintiff prayed that
defendants be directed not to dispose off, and/or transfer, and/or
alienate, and/or create third party rights, and/or create and encumbers
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on the 24+24+1 (?) shares of the defendant No.3 Company bearing
distinctive Nos. 22057694 to 22057718 embodied in Share Certificate
No. 271910 with distinctive Nos. 2757126 to 2757150 embodied in
Share Certificate No. 30782/- to Rs.6,30,250/- in the Demat Account of
Plaintiff bearing Folio No./DP ID being SIB51759.
3. Plaintiff, alternatively, vide prayer clause (a) also prayed to
direct defendant to sell above said 50 shares 49 (?) of defendant No.3
Company with aforesaid distinctive numbers worth Rs.6,30,250/- and
deposit the said money realized into this Court.
4. In support of said contentions One Mr. Harshad Popatlal
Shah i.e. Plaintiff filed his affidavit dated 25.09.201 it is supported by
an affidavit.
5. The ld. Advocate Smita Hartalkar for defendant No.1. by
her oral statements adopted para No.12 of her written statement of
defendant No.1 as her reply to the present Notice of Motion.
6. Sheristedar has apprised the Court that
defendant/respondent No. 2 and 5 are proceeded exparte whereas
defendant No.3 and 4 are duly represented through ld. Advocate
Siddhesh Kararlkar for defendant No. 3 & 4.
7. Following points arises for my determination to which I
have noted my findings with reasons thereon to each one as under :-
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Sr. No. POINTS FINDINGS
1 Whether plaintiff is entitled for
directions sought to be given to the
defendant No.3 Company as
prayed vide prayer clause No. 1
and 2 in the Notice of Motion ?
No.
2 What Order? Notice of Motion
Dismissed.
REASONS
8. Heard ld. Advocate Vaishnavi Mudras for the plaintiff at
length. The bone of contentions of the plaintiff is that he never
instructed defendant No.3 to transfer shares in favour of Ms.
Bhagyawanti Mahadik at any point of time. On the other hand, there is
several letter/correspondence with the defendant No.3 alongwith other
defendants tendered before Court for transferring those shares purchase
from defendant No.4 in the name of plaintiff at the first instance.
9. Further, all the contentions in the plaint para are relied in
support of the present Notice of Motion as per the supporting affidavit. I
have also gone through the plaint allegations and the documents
annexed with the plaint tendered vide list of documents dated
18.07.2019 total 20 in numbers (from the index of the said list of
documents). It appears that there appears huge correspondence
amongst the parties because all these 20 documents appears to sent
time to time at Exhibit-A to Exhibit-T i.e. page No. 19 to 78 including
legal notice and claim form and acknowledgement i.e. Exhibit-R.S.T..
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10. The sum and substances of para No.12 of written statement
of defendant No.1 goes to show that defendant No.1 took a specific
stand that these shares were transferred already in the name of
Bhagyawanti Mahadik that was the reason for rejection of the request of
the plaintiff. Hence, prayed to reject the Notice of Motion.
11. So far as the stand of defendant No.3 & 4 who are duly
represented by Advocate Smitha Hartalkar is concern, it appears that no
reply has been tendered since last more than five years as on today
except the ld. Advocate for the plaintiff and defendant No.2 none other
are present though the matter was adjourned and kept today being the
present Notice of Motion is pending last more than five years. Hence, it
is deemed that the others defendant do not wish contest the suit
muchless the present Notice of Motion.
12. Be as it may be, the present question for consideration of
Court whether as per the prayers of Notice of Motion and the
submission advanced by Advocate for the plaintiff, whether Notice of
Motion claiming the interim relief/interlocutory reliefs can be extended.
After hearing ld. Advocate Smitha Hartalkar, who vehemently pointed
out that no prima-facie case made out. contents stated in the affidavit in
last para supporting affidavit of Notice of Motion it is stated that a
prima-faice case has been made out for grant of interim reliefs have
been not so made out. Hence, prayed to dismiss the Notice of Motion.
13. After considering rival submission, assuming for the sake of
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arguments that the share may be 50 or 49 in numbers, as the case may
be, if those shares are already transferred in the name of Bhagyawanti
Mahadik, how the request and prayer of the plaintiff made before
defendant No.1 by addressing letter to each or otherwise to other
defendant, who are concern with the said transaction, can be fulfilled
when already those shares were transferred to some other third party.
That was the reason for refusal made by the defendant No.1 to transfer
shares. It can not be faulted, the said stand taken by the defendant
No.1, at this juncture, being suit has to go on merits further.
14. If plaintiff establish his legal rights by adducing cogent
evidence, then, even if I found plaintiff is not at all entitled for the
interlocutory reliefs sought by way of present Notice of Motion said
relief can be granted after full-fledged Trial.
15. Hence, Notice of Motion fails. Thus, I noted my findings
to the Point No. 1 and 2 accordingly and proceed to pass following
order____
ORDER
1. The Notice of Motion No. 307 of 2020 is dismissed. No order as
to costs in peculiar circumstances.
2. Suit to proceed further in accordance with the law as early as
possible and kept for filing draft issues.
3. Also for passing necessary exparte order against errant
defendants who failed to file the written statement if any.
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. The Notice of Motion No.307 of 2020 is disposed of accordingly.
( SANJIV PRABHAKAR PINGLE )
DISTRICT JUDGE, CR NO.32,
Date : 15/03/2025. CITY CIVIL COURT, AT MAZGAON,
MUMBAI.
typed on : 15/03/2025
Printed on : 15/03/2025
Signed on : 25/03/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25.03.2025 at 5.30 p.m. Mr. Mahesh S. Lugade
Name of the Judge ( With Court
Room No.)
H.H.J. Shri Sanjiv P. Pingle
(Court Room No.32)
Date of Pronouncement of
JUDGMENT/ORDER
15.03.2025
JUDGMENT/ORDER signed by
P.O. on
25.03.2025
JUDGMENT/ORDER uploaded on 25.03.2025
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