Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M. No.377/20 (SC No.167/20)
MHCC010012442020
Presented on : 23/01/2020
Registered on : 23/01/2020
Decided on : 02/05/2025
Duration : 5 Y 3 M 11 D
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.377 OF 2020
IN
SHORT CAUSE SUIT NO. 167 OF 2020
Mrs. Bertha Tulemino Antao ... Plaintiff
- Versus -
Mrs. Maria Afra Antao … Defendant
CORAM : HIS HONOUR JUDGE
SHRI. PRASHANT C. KALE
CITY CIVIL COURT, GR. BOMBAY
(C. R. NO.65)
DATE : 02nd MAY, 2024.
Appearance :-
Mr. C. Fernandes, advocate for the plaintiff.
None for the defendant.
O R D E R
By this notice of motion the plaintiff has prayed for
following reliefs -
“a) Pending the hearing and final disposal of the suit, the
defendant be directed to furnish the details of the movable
and immovable assets unknown to the plaintiff ;
b) Pending the hearing and final disposal of the suit the
defendant be ordered to give accounts of the withdrawal
made by the defendant from the credits of the deceased
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N/M. No.377/20 (SC No.167/20)
husband of the plaintiff which were lying in various banks
and financial institutions ;
c) Pending the hearing and final disposal of the suit the
defendant, her agents, person/s claiming through or under
be restrained from disturbing the peaceful possession of the
plaintiff in respect of the ‘said flat’ i.e. 31-1378, Panch
Pushpa Society, Sardar Nagar 3, Sion (East), Mumbai – 400
022 ;
d) Pending the hearing and final disposal of the suit this
Hon’ble court be further pleased to restrain the defendant
and/or her agents, person/s claiming through or under her
from dealing with the movable assets at the credits of the
deceased husband lying in various banks and financial
institutions as per the list Exhibit-C displayed in the body of
the plaint as presently known and till such time the
movable and immovable assets are brought on record as
may be disclosed by the defendant pending of the suit ;
e) Pending the hearing and final disposal of the suit this
Hon’ble court be further pleased to direct the defendant to
deposit the amounts so far withdrawn by the defendant
from the savings and investments made by the deceased
husband of the plaintiff…...”
2. It is submitted by the plaintiff that the defendant is her
mother-in-law and she is claiming right, title, interest together with the
defendant in the property of her deceased husband. The instant suit is
for declaration and injunction and she adopts statements made in the
plaint as if same have been specifically adopted herein to form as part
and parcel of the present notice of motion. It is submitted by the
plaintiff that no prejudice would be caused to the defendant in case
injunction is granted. On the contrary, if injunction is not granted the
plaintiff will suffer grave and irreparable loss which cannot be
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N/M. No.377/20 (SC No.167/20)
compensated in terms of money. The plaintiff has made out prima facie
case and balance of convenience lies in her favour. Thus, prayed for
allowing the notice of motion.
3. Despite sufficient opportunities, the defendant has not filed
reply to this notice of motion.
4. The advocate appearing on behalf of defendant has
withdrawn vakalatnama by issuing notice to the defendant about
withdrawal of vakalatnama.
5. Record reflects that status quo order was granted on the
first hearing of the suit. However, later on that order was not continued.
The notice of motion is pending since January, 2020. Ld. advocate for
the plaintiff has filed written notes of arguments to substantiate his
contentions. I have gone through the written notes. It is the contention
of the plaintiff that she is residing in the flat more particularly described
in plaint para 1 and the address of the defendant is also the same. From
the plaint pleadings it is apparent that both the plaintiff and the
defendant are residing at the same flat referred to as the suit flat in the
plaint. The plaintiff has filed on record various documents. In Exhibit-C
the plaintiff has given list of investments and credits held by her
deceased husband. Primarily, the prayer of the plaintiff are in respect of
movable and immovable properties.
6. Apparently, when the plaintiff is claiming that she is in
possession of the said flat more particularly described in plaint para 1,
she has nowhere substantiate the apprehension about her dispossession
by the old lady, the defendant who is more than 75 years of age at the
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N/M. No.377/20 (SC No.167/20)
time of filing of the suit. The particulars enumerated in Exhibit-C are
the money lying in bank account, share debenture, bonds, insurance
policies etc. which are reported to the name of deceased husband of the
plaintiff. Certainly, there is no material on record to substantiate that
the defendant has withdrawn those amount. For the list of movable
enumerated in Exhibit-C, law requires proper documents for withdrawal
of that amount. Though the defendant has not filed reply to the notice
of motion, it was for the plaintiff to substantiate her apprehension
showing the prima facie case for grant of interim relief. The plaintiff has
failed to make out prima facie case to demonstrate as to how balance of
convenience lies in her favour and irreparable loss would be caused to
her by non grant of injunction. In view of the above discussion the
plaintiff is not entitled for any of the interim reliefs. Hence, I pass
following order -
O R D E R
1. Notice of Motion No.377/2020 in Suit No.167/2020 is
dismissed.
2. Parties to bear their own costs.
3. Parties to take note.
4. Parties are directed to expedite the hearing of suit.
5. Proceeding of Notice of Motion No.377/2020 in Suit
No.167/2020 is closed.
Date : 02/05/2025. (Prashant C. Kale )
Ad-hoc Judge
City Civil Court, Gr. Bombay.
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N/M. No.377/20 (SC No.167/20)
Dictated on : 02.05.2025
Typed on : 02.05.2025
Checked on : 05.05.2025
Signed on : 06.05.2025
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06.05.2025 at 3.33 pm ( Samruddhi Jadhav)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. Prashant C. Kale (C.R.No.65)
Date of Pronouncement of
JUDGMENT/ORDER
02.05.2025
JUDGMENT/ORDER signed by
P.O.on
06.05.2025
JUDGMENT/ORDER uploaded on 06.05.2025
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