Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.506-19 in L.C.Suit no.9880-1987
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 506 OF 2019
(CNR no. MHCC010012752019)
IN
L.C. SUIT NO. 9880 OF 1987
(CNR no. MHCC010058142012)
(HIGH COURT SUIT NO. 1496 OF 1987)
Mahendra Janardan Velinkar ]... Plaintiff
Versus
1. Mrs Vaishali Sharad Kulkarni and Ors. ]... Defendants
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 26th February, 2019.
Mr. Kandekar with Ms. Rohini Bhadavkar, advocates for plaintiff.
Mr. Shekhawat, advocate for defendant no. 1.
Mr. Rohan Sawant, advocate for defendant no. 2(a) and 2(b).
Ms. Hetal Gala, advocate for defendant no. 4.
ORDER
1. The plaintiff has taken out this motion for appointment of
the Court Receiver, High Court Bombay or any other fit person as
receiver in respect of the suit flat and secondly, for temporary
injunction for restraining the defendants from alienating or transferring
the suit flat in any manner.
2. The learned advocate for the plaintiff submitted that the
defendants are trying to keep him out of the possession of the suit flat
systematically for last more than 30 years. During the pendancy of the
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2 NM no.506-19 in L.C.Suit no.9880-1987
suit, the defendant nos. 1 to 4 transferred the suit flat to defendant nos.
5 to 7. He further submitted that the plaintiff has tendered the affidavit
of evidence and the matter is fixed for admissibility of documents after
failure of protracted negotiations for settlement of the matter.
According to him, the building where the suit flat is located is in
dilapidated condition and now the defendants are trying to hand over
the entire property along with suit flat to a builder / developer and
therefore, plaintiff is constrained to move this application.
3. On the other hand, the learned advocate for the defendant
no. 2(b) submitted that earlier status quo was granted. However, as
third party rights were already created in the suit flat by vacating the
order of status quo, plaintiff was given liberty to move the Court.
However, the plaintiff was not diligent and did not take such action for
a long period. According to him, the motion has been taken out after a
period of 8 years. The plaintiff has not made out case for appointment
of Court Receiver. There is no cause of action. The plaintiff by his
conduct allowed defendant to deal with the suit flat and therefore, the
motion is barred by principle of resjudicata which is applicable between
the two stages of the suit.
4. He further submitted that the plaintiff earlier applied for
appointment of Court Receiver which was rejected. According to him,
the suit is part heard and the plaintiff is playing delay tactics. The suit
flat is not in possession of the defendant. It is in possession of defendant
nos. 5 to 7. Lastly, he submitted that one Vini Developers has filed a suit
against defendant nos. 1 to 4 for specific performance being commercial
suit no. 69 of 2012 in which an order of status quo has been passed.
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3 NM no.506-19 in L.C.Suit no.9880-1987
The learned advocate for defendant no. 4 submitted to the orders of this
Court by stating that the motion is frivolous and no case has been made
out by the plaintiff.
5. So far as, the relief for appointment of Court Receiver, High
Court, Bombay sought by plaintiff is concerned, the Hon'ble High Court
of Bombay (Coram : A. S. Oka J.) by order dated 11.09.2009 passed
in W.P. no. 2527 of 2009 (Girish N. Joshi vs. Jagat M. Parikh &
Ors.) had been pleased to hold that there is no provision either in
original side rules or in the rules framed under City Civil & Sessions
Court Act to appointment the Court Receiver, High Court Bombay as a
receiver in the suit or proceedings filed in the City Civil Court at
Bombay. Therefore, the prayer for appointment of Court Receiver, High
Court Bombay cannot be considered.
6. So far as, the alternate prayer regarding appointment of
any other fit and proper person as a receiver, made by the plaintiff is
concerned that would be under Order XL Rule 1 of Code of Civil
Procedure (C.P.C). It has been held in the case of Mulaji vs Pardesia
Builders reported in 1997 Mh.L.J 532 that in a suitable case the court
is not powerless to appoint a receiver, even without any application
while rejecting temporary injunction. However, such power should be
used sparingly and in an exceptional case whether rejecting temporary
injunction may lead the parties to take law in their hands and to use
own devices either to protect unlawful possession of recent origin or for
gain of possession. Thus, if the Court deems “just and convenient”
relating to the facts of a case, receiver can be appointed. Here, the
plaintiff has filed suit for specific performance of an agreement dated
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4 NM no.506-19 in L.C.Suit no.9880-1987
14.10.1983 and further agreements dated 11.12.1984 by contending
that the original defendant agreed to sell the suit flat to the plaintiff in
consideration of his payment of Rs.23,000/ towards the fees to
Municipal Corporation for approval of building plans and unpaid
professional fees Rs.20,000/ etc. The plaintiff is required to establish
the said agreement on merits and acquiring any rights in the suit flat
which will be considered at the end of trial and therefore, at this stage it
is not just and convenient to appoint any other person as receiver
relating to suit flat.
7. It is now necessary to consider the second relief of
temporary injunction as sought by the plaintiff. It is prima facie
undisputed that the defendant nos. 1 to 4 transferred the suit flat to
defendant nos. 5 to 7 pendent lit and consequently, the defendant nos. 5
to 7 are impleaded in the suit. Now the plaintiff apprehends that the
entire property may be given for redevelopment and plaintiff will loose
his rights in the suit flat.
8. So far as, the submissions relating to granting and vacating
an order of status quo and plaintiff's negligence to take out fresh notice
of motion for temporary injunction diligently etc. are concerned, it
appears prima face that the cause of action to the present motion would
be an apprehension for setting the entire property for redevelopment by
the defendants in furtherance of the commercial suit no. 69 of 2012. It
is a settled position that even the principle of resjudicata is applicable
between the two stages of the suit. However, here the cause of action
for the present motion for temporary injunction is different and the
aforesaid principle will have no application even though earlier order of
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5 NM no.506-19 in L.C.Suit no.9880-1987
status quo was vacated and the plaintiff did not take out the motion
diligently.
9. So far as, the conduct of defendants is concerned, it
appears that the defendants are trying to frustrate the suit by
transferring the suit flat during the pendancy of the suit or by taking out
different motions for disposal of the suit like notice of motion no. 475 of
2019 or by creating multiplicity of proceedings. Under such
circumstances, intervention of this Court is necessary by an order of
temporary injunction for restraining the defendants from transferring /
alienating the suit flat till the disposal of the suit. The suit being part
heard and pending on the point of admissibility of documents can be
disposed off in a time bound manner. Therefore, no prejudice would be
caused to either on the defendants, if they are restrained from
transferring / alienating the suit flat. Defendant nos. 1 to 4 have already
transferring the suit flat to defendant nos. 5 to 7 who claimed to be in
possession of the suit flat. Thus, the plaintiff has made out a prima facie
case. The balance of convenience lies in his favour and therefore, he is
entitled to the relief of temporary injunction as prayed for. It is also
expedient, just and proper to direct the respective parties to bear their
own costs of the motion. Therefore, the following order is passed:
ORDER
1. The Notice of Motion no. 506 of 2019 is dismissed in respect of
prayer clause (a) for appointment of Court Receiver, High Court
Bombay or any other person.
2. The Notice of Motion no. 506 of 2019 is made absolute in terms
of prayer clause (b) by temporarily restraining the defendant nos.
1 to 7 from alienating / transferring or disposing of the suit flat
or parting its possession to third parties till the final disposal of
this suit.
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6 NM no.506-19 in L.C.Suit no.9880-1987
3. Parties to bear their own costs of the motion.
4. The hearing of the suit expedited and it should be finally heard
and decided before 30.06.2019.
sd/-
(Dr. M. S. Deshpande)
Judge,
Date : 26.02.2019 City Civil Court, Mumbai.
Dictated on : 26.02.2019
Transcribed on : 27.02.2019
Checked by HHJ on : 28.02.2019
Signed by HHJ on : 28.02.2019
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7 NM no.506-19 in L.C.Suit no.9880-1987
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 28.02.2019 at 3.05 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
26/02/2019
JUDGMENT/ORDER signed by
P.O. on
27/02/2019
JUDGMENT/ORDER uploaded
on
28/02/2019
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