Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1.. NM NO.369/2020
MHCC010008362020
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
Notice of Motion No. 369 OF 2020
IN
SUIT NO.6373 OF 1982 (DISPOSED OF)
Hemakant Narendra Pandit. …Applicant/Plaintiff no.5
In the matter between
Latika Laxmikant Pandit and others. …Plaintiffs.
Versus.
Vinod @ Khan Narsinha Pandit and others. … Defendants.
Appearance
Adv. Kaji i/b Yogendra N. Kanchan for plaintiffs.
Ajay Tiwari, Representative of the Court Receiver.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor
COURT NO.2
DATED : 10th March 2022.
ORAL ORDER
Heard Ajay Tiwari, representative of Court Receiver and
advocate for the applicant on notice of motion moved on behalf of the
applicant/plaintiff no.5 for directing the Court Receiver, Bombay to
handover quiet, vacant and peaceful possession of the suit property
more particularly described in Exh.B to the plaint and Room no.3
situated Saraswati Mansion, 4th road, Santacruz (East), Mumbai 400
055.
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ORDER ..2.. NM NO.369/2020
2. Perused the notice of motion alongwith affidavit, Report
No.108/2017 of the Court Receiver, letter dated 21.10.2021 and
28.10.2021 of the Court Receiver with request to submit copy of the
order passed on report of the Court receiver and proceedings of the
case.
3. Contention of advocate for the applicant is that his father
Narendra Pandit had filed suit for partition. Plaintiff had taken out
Notice of Motion No.2318 of 2014 and vide order dated 08.07.2014 and
14.07.2014, Court Receiver was appointed in respect of Room No.3.
Room No.3 was not subject matter of the suit. Suit dismissed on
23.06.2006 for want of prosecution. However other plaintiff had taken
out Notice of Motion No. 2819 of 2014 for restoration of the suit and
said notice of motion is also dismissed by order dated 12.11.2014.
Though the suit is dismissed, Court Receiver is not discharged and
holding possession of the suit property as well as Room No.3.
4. Applicant issued letter dated 19.09.2018 and 31.10.2018 to the
Court Receiver in order to take discharge from the case but Court
Receiver has not taken any steps. Hence applicant could not take
benefits of his share. Under the circumstances, advocate for the
applicant/plaintiff no.5 filed the present notice of motion and prayed
for allowing the same.
5. From the perusal of record, it appears that the Court Receiver
filed his report bearing no. 108/2017 dated 04.07.2017 and prayed for
(a) its discharge due to non cooperation of the parties to the suit
without passing account and plaintiffs be directed to pay costs, charges
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and expenses of the Court Receiver as per Provisions of Statement of
Accounts prepared by the Registry upon taking inspection, (b) if prayer
clause (a) is granted then whom possession of the suit property and Flat
No.3 should be handed over ?, (c) costs of this report may kindly be
awarded in the sum of Rs.3,000/- and be directed to come out of the
funds in the hands of the Court Receiver and (d) any other direction
this Hon'ble Court may deem fit and proper.
6. It is evident that as per order dated 02.05.2002, the Court
Receiver had taken formal possession of the suit property by affixing
boards indicating possession thereof as receiver of the properties and
appointed Rane and Company to collect the rent from the occupants of
the suit property. As per order dated 08.06.2014 in Notice of Motion
No.2318 of 2014, Court Receiver was directed to take physical
possession of Flat No.1 and 3 from the servants, Raghuvendra Yadav
and Arvind Yadav and whosoever may be found there and to prepare
inventory of the articles and to seal the premises till further order.
Accordingly on 11.07.2014, office representative of the Court Receiver
took physical possession of Flat No.3 and made inventory of articles
found in said flat and locked and sealed the same. However due to
unavailability of keys, possession of Flat No.1 could not be taken. By
order dated 14.07.2014 in Notice of Motion No.2318 of 2014, Court
Receiver was directed to take possession of Flat No.1 by breaking open
the lock of said flat and if necessary with the help of police and to
prepare inventory of articles found in said flat and to seal the same.
However due to non cooperation from the police and occupant of Flat
No.1, possession of Flat No.1 could not be taken and order dated
14.07.2014 could not be executed.
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7. In meeting of the parties dated 05.07.2016, office of the Court
Receiver recorded that the suit is dismissed for want of prosecution on
23.06.2006, Notice of Motion No.2319/2014 for restoration of suit is
also rejected by order dated 12.11.2014, said order is challenged by
plaintiffs by filing Appeal from Order (L) 12514/2014, plaintiffs took
out civil application for directing the Court Receiver to stay in
possession of the suit property, however plaintiffs have not obtained any
order on said civil application, therefore plaintiff were directed to
obtain necessary order for continuing the Court Receiver in respect of
the suit property within 2 weeks failing which his office shall submit
report to this Court for discharge of the Court Receiver and also for
direction for handing over possession of Flat No.3. Till the filing of
report of the Court Receiver, his office has not received any
communication from plaintiffs or their advocates to enable his office to
take further steps, hence the Court Receiver filed his report.
8. Admittedly the suit is dismissed on 23.06.2006, Notice of
Motion No.2319/2014 for restoration of suit is also dismissed by order
dated 12.11.2014 and Appeal from Order No.1153/2015 alongwith
Civil Application no.1442/2015 and Civil Application no. 1443/2015
filed by plaintiff (L) 12514/2014 is disposed of on 29.10.2018 as
withdrawn on the ground that counsel for appellants, on instructions,
seeks leave to withdraw the appeal as the matter is amicable settled out
of the Court.
9. Court Receiver is not discharged till date and holding possession
of the suit property and Room/Flat No.3 in spite of dismissal of the suit.
Under the facts and circumstances, present notice of motion is liable to
be allowed and the Court Receiver is liable to be discharged. In the
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result, following order.
ORDER
(1) Notice of Motion No.369/2020 is allowed as under :-
(i) The Court Receiver, Bombay is discharged from the suit
without passing account after deducting its costs, charges and
expenses from the amount hold by it.
(ii) Court Receiver is directed to remove its board from the
suit property.
(iii) Court Receiver is directed to hand over possession of
Room/Flat No.3 to the person from whom said possession is
taken.
(2) With above directions, Notice of Motion No.369/2020 stands
disposed of.
(3) Copy of this order be given to the Court Receiver for information
and necessary action.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 10.03.2022
Typed on : 10.03.2022
HHJ signed on : 10.03.2022
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ORDER ..6.. NM NO.369/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED10.03.2022 , 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
10.03.2022
JUDGMENT/ORDER signed by P.O.
on
10.03.2022
JUDGMENT/ORDER uploaded on 10.03.2022
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