Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 542 of 2020 in S.C.Suit 2076 of 2014
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 542 OF 2020
IN
S.C.SUIT NO. 2076 OF 2014
CNR NO. : MHCC010014032020
Sabrunissa w/o. Mohammed Zuber Khan & Ors. … Plaintiffs
Versus
Najeebunissa Widow of Mohammed Shami & Ors. ...Defendants
And
The Court Receiver, High Court, Bombay. … Respondent
Appearance:
Adv. Shri. Shoaib Memon for Plaintiffs.
Adv. Shri. Javed Hussein for Defendant Nos. 2 and 3.
CORAM : SMT. S.S. NAGUR
JUDGE, (C.R.NO.4)
DATE : 29/09/2021
ORDER
The Notice of Motion is filed by the plaintiffs seeking following reliefs.
a) that this Hon'ble Court may be pleased to modify Order dated
23/03/2018 passed by His Honour Judge Shri. G.R.Agarwal in
Notice of Motion No.3184 of 2014 and give clarifications in respect
of Royalty Amount to be paid by the Defendant Nos. 2 & 3 to the
Plaintiffs and further the Plaintiffs may be appointed as an agent of
the Court Receiver (Respondent) since they are ready and willing
to deposit an amount of Rs. 3,00,000/ (Rupees Three Lacs Only)
per month in this Hon'ble Court;
b) that this Hon'ble Court may be pleased to fix the royalty @ at the
rate of Rs.3,00,000/ (Rupees Three Lacs Only) per month in
respect to the business of the suit properties;
c) that this Hon'ble Court may be pleased to direct the Plaintiffs and
the Defendant Nos. 2 & 3 to bear the charges of the Valuers equally
as suggested in the minutes of meeting dated 28/08/2019 at
Exhibit '10' to the Affidavit in Support of the Notice of Motion;
d) that this Hon'ble Court may be pleased to direct the Defendant
Nos. 2 & 3 to submit to the Plaintiffs and Respondent all
documents as listed in the Schedule at Exhibit '12' to the Affidavit
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in Support of the Notice of Motion.
2. The Notice of Motion is supported by Affidavit of Plaintiff No. 4
Mrs. Khairunnisa w/o Mohammed Firoz Khan stating the facts of the
case, the reliefs claimed by them and the proceedings before the Court
Receiver, who has taken symbolic possession of the disputed suit
property. The defendant filed reply and objected the contents of the
Notice of Motion in toto. The defendant no. 2 and 3 have denied the
contents of Notice of Motion in toto and prayed to reject the Notice of
Motion.
3. Heard Advocate Shri. Shoaib Memon for Plaintiffs and Advocate
Shri. Javed Hussein for Defendant Nos. 2 and 3. Perused the contents
of Notice of Motion supported by Affidavit and Affidavitinreply of
Mohammed Khalil Khan, the defendant no. 2 for himself and defendant
no. 3.
4. The suit is filed by the plaintiffs for declaration that the
defendant no. 2 and 3 are trespassers of the suit property and to
partition the properties described at Exhibit 'A' and 'B' of the plaint by
metes and bounds and put the plaintiffs and the defendants in peaceful
possession of their agreegate shares and consequential reliefs in respect
of the properties.
5. Advocate Shri. Shoaib Memon for plaintiffs has drawn my
attention to the previous order of the suit passed by the Hon'ble High
Court in the suit filed by the defendant no. 1 after death of her husband
Mohammed Shami. The Court Receiver is appointed as per the order
passed in Notice of Motion No. 3184 of 2014. These plaintiffs offered to
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pay Rs.3,00,000/ Royalty per month and to hand over the possession
i.e. the suit property to the plaintiffs. However, the defendants did not
agree for the same. They have offered before the Receiver only
Rs.15,000/ per month. The Receiver has submitted the report dated
16.12.2020 stating that the defendant no. 2 and 3 is submitting
quarterly accounts in respect of two firms namely Shalimar Trading
Company and K. Mohd. & Sons regularly to this office. This office has
received statement of accounts of above firms upto 30.09.2020. The
issue of payment of royalty is raised before the Receiver.
6. Advocate Shri. Hussein for the defendants argued that the
business of their father has been closed. Therefore, the question of
payment of royalty will not arise. The appeal is pending against the
order passed in Notice of Motion No. 3184 of 2014. Therefore, the
reliefs claimed in the present Notice of Motion cannot be considered.
The Notice of Motion itself is not maintainable. Hence, prayed to
dismiss the Notice of Motion.
7. In Notice of Motion No. 3184 of 2014, following order is passed
on 23.03.2018:
1. Notice of Motion No. 3184/2014 is party allowed.
2. Court Receiver is appointed to take symbolic possession of the
properties at Exh.A and B in the plaint.
3. The defendants no. 2 and 3 shall act as agents of the court
receiver.
4. The defendant no. 2 and 3 shall submit the accounts of their
business to the court receiver every three months from 1.4.2018.
5. The adinterim order granted on 13.08.2014 to maintain status
quo is confirmed.
8. In Notice of Motion No. 3184 of 2014 is filed by the plaintiffs
seeking following reliefs :
(a) that pending the hearing and final disposal of the suit the Court
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Receiver, High Court, Bombay may be appointed as the receiver will
all powers under Order XL Rule 1 of the Code of Civil Procedures,
1908, with directions to the Court Receiver by this Hon'ble Court to
take possession of the properties at Exhibit 'A' and Exhibit 'B' to the
Plaint and the business of M/s. S. Mohammed & Co. and any other
business being conducted from properties at Exhibit 'A' and Exhibit 'B'
to the Plaint and this Hon'ble Court may be pleased to appoint the
Plaintiffs as agent of the receiver in respect of the said properties and
businesses;
(b) that pending the hearing and final disposal of the suit this Hon'ble
Court may be pleased to pass orders and directions against the
Defendant Nos. 2 and 3 to submit true and correct statements of
accounts, dealings and transactions of M/s. S. Mohammed & Co. and
any other businesses being carried out by the said Defendant No. 8
with M/s. S. Mohammed & Co. and the Defendant Nos. 1 and 2;
(c) that pending the hearing and final disposal of the suit this Hon'ble
Court may be pleased to direct the Defendant Nos. 2 and 3 to submit
true and proper accounts and statement of stocks, property, dealings
of M/s. S. Mohammed & Co. and any other business and transactions
being carried out from the properties at Exhibit 'A' and Exhibit 'B' to
the Plaint from 11/09/2001 till date;
(d) that pending the hearing and final disposal of the suit this Hon'ble
Court may be pleased to appoint the Court Receiver, High Court,
Bombay may be appointed as the receiver with all powers under
Order XL Rule 1 of the Code of Civil Procedures, 1908, with
directions to the Court Receiver by this Hon'ble Court to take
possession of Maruti 800 Motor car bearing No. MH04AP839;
(e) that pending the hearing and final disposal of the suit the
Defendant Nos. 2 and 3 by themselves and/or by their servants,
agents, representatives or otherwise be restrained by an order and
injunction of this Hon'ble Court from dealing with, disposing of,
alienating and/or encumbering and/or parting with possession of the
suit properties described in Exhibit 'A' and Exhibit 'B' to the Plaint, or
any part thereof and/or from inducting any third party in the same or
in any part thereof, or in the structures, standing thereon.
9. On perusal of the above reliefs, there is no prayer for deposit for
royalty claimed by the plaintiffs from the defendant nos. 2 and 3. On
the basis of reliefs claimed by the plaintiffs, the order is passed and the
Receiver is appointed to take symbolic possession of the property
disclosed at Exhibit 'A' and Exhibit 'B' of the plaint. The defendant no. 2
and 3 are appointed to act as agents of the Court Receiver and to
submit the amount of their business to the Court Receiver every three
months from November, 2018. Accordingly, as per report of the
Receiver, the Receiver has received the account statement from the
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defendant no. 2 and 3 upto 30.09.2020.
10. The Notice of Motion is for modifying the order to clarify the
royalty amount. As the plaintiffs are ready to deposit per month
Rs.3,00,000/ Royalty amount, to fix the said amount to be paid by the
defendant no. 2 and 3. The reliefs claimed by the plaintiffs in the
Notice of Motion is under challenge before the Hon'ble High Court by
Appeal from Order No. 667 of 2018. Considering the reliefs claimed in
the Notice of Motion No. 3184 of 2014 and the above facts on record,
the Notice of Motion is not tenable. Hence, pass following order:
ORDER
1. The Notice of Motion is rejected.
2. No order as to costs.
3. Accordingly Notice of Motion is disposed of.
(SMT. S.S.NAGUR )
Judge
Dt.: 29/09/2021 City Civil Court,
Gr. Mumbai
Declared on : 29/09/2021
Dictated on : 28/09/2021
Typed on : 29/09/2021
Checked & Signed on : 30/09/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
01/10/2021 4.30 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
29/09/2021
Judgment/order signed by P.O on 30/09/2021
Judgment/order uploaded on 01/10/2021
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