Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.4082019 in SU 137 2019
MHCC010010632019
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO. 408 OF 2019
in
SUIT NO.137 OF 2019
M/s. New Farsan Mart & Another ]...Plaintiffs
Versus
MCGM & Another ]..Defendants
Appearance:
Ld. Advocate Ms. Priya Rombade for plaintiffs.
Ld Advocate Smt. Vyavahare for defendant Nos. 1 & 2.
CORAM : His Honour Judge &
Addl Sessions Judge.
Shri. K.P. Kshirsagar,
(Court Room no.5)
DATED : 17th JANUARY, 2022.
ORAL ORDER
1) Plaintiffs have taken out this notice of motion for interim
relief of temporary injunction restraining defendant No. 1 and 2 from
taking any further step that would prejudice the rights of the
plaintiffs including cancellation of health license and to restrain them
from passing any order in pursuance of the notice issued by
defendant Nos.1 and 2.
2) Perused the notice of motion, affidavit in support of
same, the plaint and documents filed alongwith the plaint, documents
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filed alongwith the affidavit of documents of plaintiff, reply affidavit
of defendant Nos. 1 and 2 and documents produced on record by
defendant Nos.1 and 2.
3) Heard Ld Advocate for plaintiffs and Ld Advocate for
defendant Nos.1 and 2. Ld Advocate for plaintiffs argued that plaintiff
No.1 is a partnership firm and plaintiff No.2 is one of the partner of
plaintiff No.1. Plaintiffs are carrying business at 81/83, Babu Genu
Road, Prabhadevi, Mumbai (For sake of brevity hereinafter the above
premises is referred as suit premises). The defendant No.3 is a tenant
of the suit premises and plaintiffs are the sub tenant of defendant
No.3 of suit premises. The plaintiffs have been carrying out valid
business in the suit premises since long. As per partnership agreement
dtd.1/10/2011 above business is being carried out by partners Mr.
Naresh Joshi, Mr. Vamanrao Joshi, Mr. Yogesh Joshi and Mr. Jagdish
Joshi. The defendant No.1 and 2 have issued license bearing
No.761424267 u/s. 394 of the MMC Act to the plaintiff firm
alongwith the other licenses. The defendant No3 had filed writ
petition No.3043/17 in the Hon’ble Bombay High Court for
cancellation of trade/health license No.761424267. Defendant No.2
had given false information in the above writ petition. Defendant
Nos. 1 and 2 misinterpreted the order of Hon’ble Bombay High Court
in writ petition No.3043/17 and illegally issued notice to the plaintiff
for cancellation of above license. The plaintiffs are paying the rent of
the suit premises to the defendant No.3 and they have already paid
license fees. Therefore, it is necessary to restrain defendant No. 1 and
2 from intermeddling with property rights and license from
cancellation of health license and from taking any further step which
would prejudice the right of the plaintiffs. The license in the name of
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firm cannot be cancelled by the death of one of the family member or
partner. Therefore, Ld Advocate for plaintiffs prayed that notice of
motion be made absolute. Court has gone through the written
submissions of plaintiffs and documents filed alongwith same.
4) On the other hand Ld Advocate for defendant Nos. 1 and
2 argued that the license bearing No.761424267 was in the name of
Mr. Jagdish Bhagwandas Vayda and Mr. Mathuradas Karsandas Joshi.
Defendant No.3 who is wife of one of the license holder deceased Mr.
Jagdish Bhagwandas Vayda had filed writ petition No.3043/17 before
Hon’ble Bombay High Court for cancellation of said license. In the
said writ petition Hon’ble Bombay High Court directed medical officer
of health to decide the representation of petitioner within one week
from receipt of that order. On 26/12/18 the suit premises was
inspected and it was found that plaintiff No.2 was carrying out
business there and therefore on 26/12/18 the defendant issued show
cause letter to the plaintiff. Moreover, Mr. Mathuradas Joshi the
another licensee of the said license on 22/3/19 applied for
cancellation of health license. The health license cannot be continued
in name of deceased person and the heirs and legal representatives of
the deceased licensee and other licensee prayed for cancellation of
health license and therefore, health license was cancelled on
16/6/19. Therefore, the present notice of motion became infructuous.
Hence, Ld Advocate for defendant Nos. 1 and 2 submitted to dismiss
the notice of motion.
5) Following points arise for determination and court has
recorded its decision thereon for the reasons stated there under.
Points Decision
(i) Whether primafacie case lies in favour of No.
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plaintiffs?
(ii) Whether balance of convenience lies in
favour of plaintiffs ?
No.
(iii)Whether plaintiffs will suffer irreparable
loss if Notice of Motion is not made
absolute ?
No.
(iv) What Order ? As per final order.
REASONS
As to Point Nos. 1 to 3:
6) As all these points are interconnected with each other
they are decided simultaneously in order to avoid repetition of facts.
7) The perusal of record reveals that plaintiffs have filed
present suit for permanent injunction restraining defendant Nos. 1
and 2 from cancellation of health license and taking any further step
that would prejudice the right of plaintiffs. In the present notice of
motion also plaintiffs prayed for interim relief of injunction
restraining defedant No. 1 and 2 from cancellation of health license.
8) It is the matter of record that defendant No.3 had filed
writ petition No.3043/17 and therein the Hon’ble Bombay High Court
had directed Medical Officer of Health ‘C’ Ward to decide petitioner’s
representation for cancellation of trade/health license No.761424267
and to pass appropriate orders within one week from the date of
receipt of order. From the affidavit in reply of defendant No.1 and 2 it
is clear that the health license No.761424267 was cancelled by the
Medical Officer of Health on 16/6/19. Thus, from the matter on
record it is prima facie clear that the health license in respect of
which the plaintiff has claimed the relief in the present suit and in the
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present notice of motion is already cancelled on 16/6/19. Perusal of
matter on record reveals that plaintiff has neither amended the plaint
nor the notice of motion after cancellation of the above trade/health
license by defendant Nos. 1 and 2. As such prima facie the prayer of
plaintiff in the present notice of motion already became infructuous.
9) Moreover, the copy of license No.761424267 prima facie
reveals that same license was in the name of Mr. Jagdish Bhagwandas
Vayda and Mr. Mathuradas Karasandas Joshi. Therefore, prima facie
there appear no substance in the contention of plaintiffs that the
above license is in the name of plaintiff firm. From the reply of the
defendants it appears that the heirs and legal representatives of the
licensee Mr. Jagdish Bhagwandas Vayda and the other licensee Mr.
Mathuradas Karsandas Joshi themselves requested defendant Nos. 1
and 2 to cancel the above license. The action of cancellation of health
license by defendant Nos. 1 and 2 does not affect property
right/interest of plaintiff in suit premises. Moreover, the plaintiffs
have not challenged the action of cancellation of license by defendant
Nos. 1 and 2 in the present suit. Court cannot ordinarily restrain
officials from performing statutory duty.
10) From the matter on recrod and above discussion, prima
facie there exist no obligation on part of defendant Nos. 1 and 2 in
favour of plaintiff and prima facie it appears that there is no bonafide
contest between the parties and there is no serious/clear question
which requires to be tried. Prima facie it appears that plaintiff already
challenged the action of cancellation of license by defendant Nos. 1
and 2 in writ petition No.1792/19 and obtained interim relief.
Therefore, prima facie no irreparable or serious mischief is likely to
be caused to the plaintiffs. From the matter on record and above
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discussion this court comes to the conclusion that prima facie case
and balance of convenience does not lie in favour of plaintiffs and
plaintiffs will not suffer any irreparable loss if the notice of motion is
not made absolute. Therefore, Point Nos. 1 to 3 are answered in
negative.
As to Point No.4:
11) In view of negative findings as to point Nos. 1 to 3 and
considering peculiar facts and circumstances and matter on record,
the present notice of motion is liable to be dismissed. Therefore,
Court proceeds to pass following order:
ORDER
1) Notice of Motion No.408/2019 is hereby dismissed.
2) Notice of Motion No.408/2019 is disposed off
accordingly.
Date:17/1/2022. (K.P. Kshirsagar)
Judge
City Civil Court
Gr. Bombay
Dictated & typed on :17/1/2022.
Checked by PO : 18/1/2022.
Signed by HHJ on : 18/1/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
24/1/2022 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.05)
Date of Pronouncement of
JUDGMENT/ORDER
17/1/2022
JUDGMENT/ORDER signed by P.O.
on
18/1/2022
JUDGMENT/ORDER uploaded on 24/1/2022
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