Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 562 OF 2020
IN
S.C.SUIT NO. 4839 OF 2010
( CNR No.MHCC01-005266-2010 )
Sunder Nenumal Kriplani ...Plaintiff
V/s.
1. Veenu Rochiram Hiranandani & Anr. ...Defendants
Appearance :-
Learned advocate Charanjeet Chanderpal for plaintiff.
Learned advocate Suraj S. Kudalkar for defendant no.2.
CORAM : HIS HONOUR JUDGE SHRI R. V. KOKARE.
(C.R.No.63)
DATED : 27/01/2022.
ORDER
1. This notice of motion is taken out on behalf of the plaintiff for
conducting an enquiry under section 195 read with Section 340 of the
Code of Criminal Procedure against defendant no.2. This notice of
motion is resisted on behalf of the defendant no.2 by filing his reply.
2. Read the present rival pleadings of this notice of motion taken out
on behalf of the plaintiff, reply of the defendant no.2 and affidavit of
the plaintiff as well as the defendant no.2. Perused the record.
3. The learned counsel on behalf of the plaintiff has submitted that
defendant no.2 society is no longer functional and has no managing
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committee. There have been no meetings for last Eight years and this
has been the position for a long time now. Therefore, the society is not
functional. The defendant no.2 is actually not at all interested and this
person known as Ramesh Bhagia, who actually wanted to develop the
society, is forcing his presence and impersonating himself as the
secretary. He has no permission of whatsoever nature. All these
representations in this court of law, are therefore a result of
impersonation and forgery by misusing the rubber stamp of the society.
And pressure tactics used by Ramesh Bhagia who has kept all
documents of the society in his custody. And hence this application
being made. The said Bhagia has also done illegal construction in the
society premises, and the entire society and its members are against him
in 2015, in this very suit he had refused to give papers when this
Honorable Court asked for, the court finally issued summons and when
he did not turn up, the Court had seized the society documents and Mr.
Bhagia was also arrested. On these grounds, the learned counsel for the
plaintiff has requested that an enquiry can be conduct under section
195 read with Section 340 of the Code of Criminal Procedure against
the defendant no.2 and if found expedient and required, direct the
Colaba Police station to register FIR for forgery and impersonating in
these proceedings under the relevant provisions of the Indian Penal
Code.
4. The learned counsel on behalf of the defendant no.2 has argued
that the defendant no.2 society had engaged advocate Shri Denzil
D’mello in the above matter and their office bearer was attending and
pursuing the above matter with their earlier advocate. The above suit
was transferred from the Hon’ble High Court to Hon’ble City Civil Court
and their earlier advocate did not inform them in regards to transfer of
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the present suit. Therefore, the above matter skipped attention and
hence remained unattended in this Hon’ble Court. After receipt of
summons to attend Hon’ble Court with all original documents and after
receipt of the summons the office bearers had visited to earlier advocate
to make enquiry about status and progress of the above matter. The
earlier advocate had returned the papers and proceedings of the above
matter since the above suit was transferred to this Hon’ble Court and
since he did not attend and practice in the Hon’ble City Civil Court in
view of his preoccupation and busy schedule in the Hon’ble High Court.
They appointed new advocate and he deputed his assistant to make
enquiry of the above matter in the Hon’ble City Civil Court. With the
help and assistance of Junior of our advocate they learnt that the
above matter was assigned to this Hon’ble Court on 30/11/2012.
Therefore, the society has applied for the certified copy of the roznama
of the above matter on 11/09/2015 by an application made by advocate
to enable me to get the details and status of the above matter. The
defendant no.2 was shocked to learn about the suit to be proceed
exparte on 07/01/2013.
5. The learned counsel for the defendant no. 2 society has submitted
that the resolution passed by the Managing committee meeting held on
04/06/2016 and have been appointed to lead and give evidence on
behalf of Society in the above suit. The copy of resolution passed at the
meeting committee which is produced at Exhibit-A. The society had
tried to find out nominees of the owner of the suit flat Ms.Radhi R.
Hiranandani who had nominated her nephew Mr.Chandu Isardas
Hiranandani in respect of the suit flat. Recently on 15/09/2009 an
Annual General Meeting was called by Ramesh Bhagia, being the
secretary of the defendant no.2 society. The members were informed
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and their counter signatures were taken out. The copy of the notice
dated 01/09/2019 alongwith counter signatures of the members is
produced at Exhibit-C. The members are making correspondence with
the society. The copy of correspondence is produced at Exhibit-D.
6. The learned counsel for the defendant no.2 society has further
submitted that the allegations made in the Affidavit in support of the
notice of motion by the plaintiff is false, bogus and with malafide
intentions. The plaintiff is not the member of society and he is trying to
grab the suit flat. The managing committee members of the society are
representing the affairs of society and have been appointed secretary to
represent needs to be look into the society affairs. After filing written
statement the plaintiff adopting special tactics upon the managing
committee. This notice motion is taken out by the plaintiff is nothing
but abuse of law. On these grounds, the learned counsel on behalf of the
defendant no.2 has requested that the notice of motion taken out by the
plaintiff may kindly be dismissed with costs.
7. After hearing the argument by learned counsels on behalf of both
the sides at length and on perusal of plaint, it appears to me that the
present plaintiff is not the member of the defendant no.2 society. The
present suit came to be filed on behalf of the plaintiff for declaring to
him as the owner of the suit property on the basis of adverse possession.
After service of suit summons, Ramesh Bhagia has been appeared and
filed written statement as being Secretary of the defendant no.2 Society.
The court has framed issues on 01/04/2017 below Exhibit-26. On
perusal of the true extract of the resolution passed by the Managing
Committee meeting held on 04/06/016 at the society office it appears
that, the society had appointed to Mr. Ramesh Bhagia to appear in this
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present suit on behalf of the defendant no.2 society. The copy which is
produced on behalf of the defendant no.2 below Exhibit-B, it appears
that the owner of the suit Flat is Ms. Radhi R. Hiranandani who had
nominated her nephew Mr. Chandu Isardas Hiranandani in respect of
the suit flat. The documents produced on behalf of the defendant no.2
below Exhibit-C, it appears that the present Ramesh Bhagia was called
the Annual General Meeting dated 15/09/2009 as being the secretary
of the defendant no.2. The document below Exhibit-D is produced on
behalf of the defendant no.2, it appears to that the member of the
society meeting correspondence to the society is in the name of Ramesh
Bhagia being the secretary of defendant no.2. Therefore, from the
documents produced on behalf of the defendant no.2, prima facie it
appears that Mr. Ramesh Bhagia is the Secretary of defendant no.2
Society and Mr. Ramesh Bhagia is appeared in the present suit on behalf
of the defendant no.2. Therefore, there is no force in this notice of
motion requesting therein to conduct the enquiry against Mr. Ramesh
Bhagia under Section 195 r/w. Section 340 of Cr.P.C. Therefore, I am of
the view that the present notice of motion is taken out by the plaintiff
is liable to be dismissed. Hence, I proceed to pass following order.
ORDER
Notice of Motion No. 562 of 2020 is hereby dismissed.
( R. V. Kokare )
Judge
City Civil & Sessions Court,
Dated :27/01/2022. Gr. Mumbai
Dictated on: 27/01/2022
Transcribed on: 27/01/2022
HHJ signed on: 27/01/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
27/01/2022 at 4.00 p. m.
NAME OF STENOGRAPHER
( Mrs. V. V. Malgaonkar )
Name of the Judge HHJ Shri R. V. Kokare
(COURT ROOM NO.63)
Date of pronouncement of
judgment/order
27/01/2022
Judgment/order signed by P.O. on 27/01/2022
Judgment/order uploaded on 27/01/2022
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