Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM 345-18 Suit 20-2018
CNR NO.MHCC010014102018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.345 of 2018
IN
S.C. SUIT NO.20 OF 2018
D'silva Enterprises ].. Plaintiffs.
Versus
Mr. Prakash S. Gangurde ].. Defendant.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 4).
DATE: 16th February, 2018.
Adv. for the plaintiff present.
Adv. for the defendants present.
ORDER
The plaintiff has taken out this notice of motion for
restraining the defendants and or any person claiming through them
from acting upon the impugned notice dated 01/07/2017 and that the
power of attorney dated 19/06/2006 be declared as binding upon all
the concerned.
2. The plaintiff has submitted that it has entered into a
Memorandum of Understanding dated 19/06/2006 with the Bombay
Regional Conference of Methodist Churches in India, through its
Chairman Mr. B.F.Gavit for development of land at Worli. Alongwith
the said Memorandum of Understanding, there was a power of attorney
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executed by joint Development Committee with Bombay Regional
Conference of Methodist Churches in India, and Diocese of Bombay
Church of North India through its Chairman Rt. Revd. Dr. B.F.Gavit.
The power of attorney was executed for carrying out formal activities
before the Government authorities. Thereafter, there was arbitration
between the parties and vide Award dated 03/12/2011, the claim of
the plaintiff was allowed and MOU was held to be binding and in
subsistence. The plaintiff has deposited Rs. two crores as directed by
the Hon’ble High Court. The plaintiff has invested huge amount in the
project. On 01/07/2017 he received a notice from the defendant that
Mr. B.F.Gavit has expired and the power of attorney in favour of the
plaintiff stands relinquished and cancelled. The plaintiff by reply dated
31/07/2017 called upon the defendants to withdraw the notice
submitting that he had no locus standi and that the power of attorney
was granted representing the entire organization of Joint Development
Committee of Bombay Regional Conference of Methodist Churches in
India and therefore it cannot be said that individual had given power of
attorney. The plaintiff has submitted that the defendant had no locus
to issue the notice. He did not produce any authority as sought by the
plaintiff. Therefore, the inference needs to be drawn that the defendant
should be declared as imposter and notice need to be declared as illegal
and bad in law. The plaintiff has filed the suit for the said relief and
has taken out the present notice of motion.
3. The defendant has filed reply contending therein that the
suit is not maintainable and therefore, the plaintiff is not entitled for
any interim relief. He has submitted that he issued notice dated
01/07/2017 to the plaintiff for revocation of power of attorney dated
19/06/2006 as executor of the power of attorney is expired and hence
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such power of attorney cannot be sustained. He has stated that he is
one of the regular visitor to the church and therefore he had power to
bring to the notice of the plaintiff said fact. The defendant has prayed
for dismissal of the notice of motion.
4. Heard Advocate for the plaintiff and defendant. Perused
the record of the case.
5. In view of rival pleadings of the parties following points
arise for my determination and I have recorded my findings thereon for
the reasons to follow:
POINTS FINDINGS
(1) Whether plaintiff has made out prima
facie case ? : No.
(2) Whether balance of convenience lies in
its favour ? : No.
(3) Whether irreparable loss will be caused
to plaintiff, if no relief is granted ? : No..
(4) What order ? : As per final order.
REASONS
Point Nos.1 to 3 :
6. By the present suit the plaintiff is seeking declaration that
the notice issued by the defendant is illegal and not binding upon the
plaintiff and that the defendant had no locus standi to issue notice and
also that the power of attorney dated 19/06/2006 is valid and in
subsistence. Now, the defendant is not a statutory authority. He is an
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individual. In the notice he has stated that he is member of Methodist
Church, but in the reply the defendant has stated that he has given
notice as being regular visitor to the church. Therefore, the record
reflects that the defendant has not issued notice in the official capacity
of the organization with which plaintiff has entered into an MOU or the
Power of Attorney. The plaintiff has annexed the MOU to show that he
has entered into transaction. The same bears the signature of Mr. B.
F.Gavit, but there are no documents annexed to show that organization
i.e. Joint Development Committee of the Bombay Regional Conference
of Methodist Churches in India had given him rights to enter into a
MOU. Further, the power of attorney is also given by Mr. B.F.Gavit. If
the petition which is filed in the Arbitration Proceeding and also in the
petition before the Hon’ble High Court, Mr. B.F.Gavit was party and not
the association on behalf of whom he has entered into an agreement
with the plaintiff. The orders are passed in favour of the plaintiff. In
the present suit, the plaintiff has prayed for declaration that the power
of attorney dated 19/06/2006 is valid and in subsistence and binding
on all concerned and notice dated 01/07/2017 issued is illegal and not
binding upon the plaintiff. But he has not made party, the association,
on behalf of whom the said power of attorney was executed. It is the
contention of the plaintiff that the defendant has no locus to issue the
notice. The defendant has also not filed any documents to show that he
has been authorized by the association on behalf of whom Mr. B.F.Gavit
has entered into an agreement with the plaintiff, to issue notice. The
notice issued by the defendant as stated earlier, is not statutory notice.
Hence, no declaration about illegality of the same can be sought. In the
circumstances, the plaintiff has failed to make out a primafacie case in
his favour. The plaintiff has nowhere stated in his plaint that in what
manner due to the notice served by the defendant, any irreparable loss
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is being caused to him. As discussed earlier, the notice issued by the
defendant is not statutory notice. In these circumstances, I do not find
that any irreparable loss is being caused to the plaintiff. Consequently, I
find that there is no balance of convenience in favour of plaintiff.
Therefore, I answer Point No.1 to 3 in negative and proceed to pass the
following order.
ORDER
The Notice of Motion No.345 of 2018 is dismissed.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 16/02/2018
Dictated on: 16/02/2018
Transcribed on: 20/02//2018
Signed on: 20/02/2018
dbm/CR4
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
20/02/2018 at 5.45 p.m
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.4)
Date of Pronouncement of
Judgment/Order
16/02/2018
Judgment/Order signed by P.O.on 20/02/2018
Judgment/Order uploaded on 20/02/2018
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