Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.342-2020 in
Suit No.1392/2018
MHCC010008832020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.342 OF 2020
IN
SUIT NO.1392 OF 2018
Indian Octroi Corporation ]
A Partnership Firm, ]
Through its partner, ]
Girish M. Vora, Having address ]
at Rammandir L. B. S. Marg, ]
Mulund Check Naka, ]
Mumbai- 400 080. ] … Plaintiff.
Versus
1. Mataprasad D. Rai ]
2. Devidas Purshottam Giri (Expired) ]
3. Shayamlal Choube ]
4. Manohar Ramlal Choudhary ]
All Trustees of Baba Laldas ]
Raghuvirdas Charitable Trust, ]
Having its office at 1, Shiv Sadan ]
Building, Ground Floor, ]
Ratanbai Compound, Shivaji ]
Nagar, Checknaka, Thane. ]
5. Shakuntala Sampat Vaishnav ]
Widow of late Sampat Vaishnav ]
Presently residing at Vishwajit ]
building, 3rd Floor, Shivaji Nagar, ]
Walge Estate, Checknaka, Thane ]
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6. Sonia Mohan Sampat ]
7. Siddharth Mohan Sampat ]
All residing at Vishwajit Building, ]
3rd Floor, Shivaji Nagar, Wagle Estate, ]
Checknaka, Thane. ]
8. Sham Sampat Vaishnav ]
Aged about 37 years, residing at ]
Vishwajit Building, 3rd Floor, ]
Shivaji Nagar, Wagle Estate, ]
Checknaka, Thane. ]
9. Surekha Ramesh Ghor ]
Residing at Mahavir Darshan, ]
1st Floor, Shivaji Nagar, Thane. ]
10.Chapsi Karia ]
Residing at A/102, 1st Floor, Satya ]
Sangam Building, Shivaji Nagar, ]
Wagle Estate, Thane. ] ...Defendants.
Appearances :-
Learned advocate Ranawat for plaintiff.
Learned advocate B.A. Singh for defendant.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 24.12.2024
O R D E R
The plaintiff has taken out present notice of motion for
claiming the relief inter alia;
a) To direct the Court Receiver to take the physical possession
of the shop No.1 admeasuring an area 10 x 10, situated at near
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Suit No.1392/2018
Ram Madir LBS Marg, Mulund Check Naka, Mulund (West),
Mumbai. 400 080 (hereinafter referred as ‘suit shop’) by breaking
open the lock.
b) During the pendency of the suit, to restrain the defendant Nos. 1
to 4, their members and any person appointed and acting on
behalf of the defendant Nos.1 to 4 from creating the third party
rights by handing over, executing and/ or entering any agreement
and / or documents in respect of the suit shop.
c) To grant ad-interim reliefs in terms of the prayer (a) and (b)
above.
d) To provide the Costs of the notice of motion.
e) To grant such other and further reliefs as this Court may deem fit
and proper in the circumstances of the case.
2. In affidavit in support, it is contended that the plaintiff has
filed the suit for the recovery of the possession of the suit shop
alongwith the prayer of injunction. It is further contended that this
Court has decided the notice of motion No.2529 of 2018 on 05.12.2019
and thereby appointed the Court Receiver and further directed to take
possession of the suit shop.
3. According to the plaintiff, one letter dated 10.12.2019 was
issued by the plaintiff to the Court Receiver and informed about the
aforesaid order and also requested to fix the appointment to taken
symbolic possession of the suit shop. Accordingly, the Court Receiver
has fixed the appointment of 04.01.2020 of the suit shop and by issuing
notice directed the defendants to remain present on the suit shop. The
Court Receiver has also taken assistance of the Mulund Police Station
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Suit No.1392/2018
and reached to the suit shop. But the suit shop was closed. After making
inquiry, the plaintiff came to know that the defendant Nos.1 to 4 have
purposely kept the shop closed. According to the plaintiff, he contacted
telephonically to the defendant No.1 and called him on the suit shop or
send the other defendants on the shop for implementation of the order
dated 05.12.2019 passed by this Court. But he refused to obey the said
order. Therefore, the Court Receiver has prepared the report and
submitted it before this Court. It is further contended that as the suit
shop was kept locked hence, the warrant of possession cannot be
executed. It is further contended that the defendant Nos.1 to 4 will not
easily give the possession of the suit shop, under such circumstances, it
is necessary to break open the lock and take possession of the same.
Hence, this Notice of Motion.
4. The defendant Nos.1, 3 and 4 have filed their reply and
opposed the present notice of motion on the ground that the order
dated 05.12.2019 was an exparte order and as soon as these defendants
came to know about the said order, they have immediately filed the
notice of motion No.160 of 2020 to set aside the said order. It is
submitted that this Court has refused to grant ad-interim stay to the
order dated 05.12.2019. Hence, the defendants have preferred A.O.(L)
No.611 of 2020. According to these defendants, the exparte order
passed on 05.12.2019 is not a usual or simple order but it is harsh order
and indirectly the suit of the plaintiff is decreed and the defendants will
be thrown on the road, if the said order is implemented. It is the further
submission of the defendants that the such relief was already refused on
merit by an order dated 26.10.2017 while deciding the M. A. No. 47 of
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the 2017 taken out by the plaintiff and the said order was not
challenged till date by the plaintiff. Therefore, the present suit as well as
the notice of motion are not maintainable. Hence, they pray to dismiss
the notice of motion.
5. Perused the notice of motion, affidavit in reply and record.
Heard both sides.
6. It appears that this Court has passed order on 05.12.2019
and thereby appointed the Court Receiver, High Court of Bombay to
take possession of the suit shop. It was also directed to the Court
Receiver that he can take the assistance / protection of the suit
premises, if the same is resisted by the defendants or any one on behalf
of them. It appears from the report of the Court Receiver that when he
visited the suit shop, nobody was present and it was found in locked
condition. It is also mentioned in the said report that there was no order
of breaking open the lock of the suit shop while taking possession of the
same, therefore, the Court Receiver was unable to take the possession of
the suit shop. It appears from the photographs captured by the Court
Receiver, that in the suit shop business under the name and style
“Radhe Krishna Mobile Repairing Center” was carried on.
7. It is pertinent to note that I have already decided the notice
of motion No.160 of 2020 on merit and it was dismissed. But on the
request of the learned advocate for the defendants Nos.1, 3 and 4, four-
week time is granted to approach the Higher Court for grant of
favourable order. Under such circumstances, the directions to break
open the lock of the suit shop cannot be given to the Court Receiver.
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8. So far as, the fear about creating the third-party rights in
respect of the suit shop is concerned, the plaintiff has annexed the copy
of leave and licence agreement with this notice of motion which
indicates that the defendant No.1 has executed leave and licence
agreement and handed over the possession of the suit shop for the
period of thirty-three months to Mr. Thakkar and Gupta. The learned
advocate for the plaintiff has argued that the defendants can execute
any document and hand over the possession of the suit shop to third
party which will cause obstacle in taking possession of the suit shop.
Already this Court vide order dated 05.12.2019, directed the Court
Receiver to take the possession of the suit shop. If the defendants will
create any third-party right by executing any document or hand over
the possession of the suit shop, again the implementation of the order
dated 05.12.2019 will be prolonged. Therefore, to avoid the further
complication and the multiplicity of the proceedings, it is necessary to
restrain the defendants Nos. 1, 3 and 4 from creating any third party
right in respect of the suit shop.
9. Considering the facts and the circumstance of the case, I
am of the view that the plaintiff has made out prima facie case against
the defendants. If the aforesaid defendants are not restrained,
irreparable loss will be caused to the plaintiff which cannot be
compensated in terms of money. If such order is passed, no prejudiced
will be caused to the defendants No.1, 3 and 4. Hence, I proceed to pass
following order:-
ORDER
1. The Notice of Motion No. 342 of 2020 is partly allowed in
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respect of prayer clause (b).
2. No order as to Costs.
3. The Notice of Motion No. 342 of 2020 is disposed of
accordingly.
(Smt. Anita B. Sharma)
Judge,
City Civil Court, Greater Bombay
Date : 24.12.2024 C.R. No.03
Dictation typed on :
Checked & Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
08.01.2025 at 5.30 p.m. Mrs. Vasanti Dattatray Bhosale
Name of the Judge (with Court Room no.) HHJ Smt. Anita B. Sharma
(Court Room No.03).
Date of Pronouncement of Judgment/Order 24.12.2024.
Judgment/Order signed by P.O. on 08.01.2025
Judgment/Order uploaded on 08.01.2025
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