Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.392 OF 2018
IN
SHORT CAUSE SUIT NO. 53 OF 2018
Smt. Kamala (Kamu) Shivram
Makwana ...Plaintiff.
Versus
1. Reserve Bank of India
Through Manager & Another ...Defendants.
Appearance:
Advocates M/s. G.H.Shukla & Company & Ms. Ranjita Shinde for
Plaintiff.
Advocates M/s. K.Ashar & Co. & Ms. Sneha Goyal for Defendant No.1
Adv. Mr. Chaugule for defendant No.2.
CORAM: H.S. SATBHAI,
JUDGE, (C.R.NO. 59)
DATE : 16th September, 2021
ORDER
This notice of motion has been taken out by the plaintiff
seeking various reliefs, including direction to the defendant No.1 to
terminate appointment of defendant No.2, not to release/disburse the
dues of deceased Shivram, not to pay dues and service benefits of
deceased Shivram and direct the defendants to disclose about the
nomination of defendant No.2 made by deceased Shivram, whilst in
service.
2. The plaintiff is claiming to be the wife of deceased Shivram.
According to her, deceased Shivram was serving in the defendant No.1
Reserve Bank of India. He died on 06.12.2001, leaving behind him the
plaintiff as legally wedded wife. The defendant No.2 is not the legally
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wedded wife of deceased Shivram. Therefore, on compassionate
ground, only the plaintiff is entitled to get service in defendant No.1
Bank. But depriving the right of plaintiff, the defendant No.1 has taken
the defendant No.2 in service with effect from 30/4/2013. Said
appointment of defendant No.2 in service of defendant No.1 on
compassionate ground is illegal. It is necessary to restrain the
defendant No.1 from continuing the appointment of defendant No.2.
The plaintiff is only entitled to the monetary benefits of service of late
Shivram. It is necessary to restrain defendant No.1 from disbursing or
releasing any amount as service benefit to defendant No.2.
3. The Notice of Motion has been objected by both defendant
Nos.1 and 2. Both contended that in the year 1988, deceased Shivram
married to defendant No.2. Out of the legal wedlock, defendant No.2
gave birth to daughter Geeta. Till the death of Shivram, their marriage
was persisting. The document in the form of deed of divorce produced
by the plaintiff dated 24.1.1992 is not a valid document of divorce
between deceased Shivram and defendant No.2. The family Court
Bandra had also not given any relief to the plaintiff on the basis of the
deed of divorce dated 24.1.1992. No monetary benefit of the service of
deceased Shivram has been given to defendant No.2. Already the
plaintiff has received an amount of Rs.15000/ and Rs.1,07,981/
towards the compassionate Gratuity and Group Saving Link Insurance
from the defendant No.1, since her name was shown as nominee by the
deceased Shivram in his service record. Other service benefits of
deceased Shivram could not be released as he had already taken a loan
from Staff Credit Cooperative Society and after his death, the amount
of his benefit has been adjusted against the loan. On the contrary, an
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amount of Rs.77,083/ is outstanding against deceased Shivram. The
appointment of defendant No.2 in service of defendant No.1 on
compassionate ground with effect from 30.4.2013 is proper and legal as
she is legally wedded wife of deceased Shivram. And in absence of any
valid decree of divorce of competent Court, plaintiff is not entitled to be
taken in service in place of deceased Shivram. Defendants asked to
dismiss the Notice of Motion
4. Heard Ld. Counsel appearing for the defendant No.1. Ld.
Counsel for the plaintiff and defendant No.2 not turned up for
advancing argument. Therefore, after hearing the Ld.Counsel for
defendant No.1 and perusing the N/M, reply and the documents on
record, following points rise for the determination and the findings to
each of them for the reasons recorded as follows.
Sr.No. POINTS FINDINGS
1. Whether the plaintiff has made out a
prima facie case to grant relief of
temporary injunction in respect of service
of defendant No.2 with defendant No.1 ?
No.
2. Whether the plaintiff is entitled for the
relief of temporary injunction that not to
release any amount of service benefit of
late Shivram to defendant No.2 ?
No.
3. Whether the plaintiff is entitled for the
relief of awarding the service benefit of
late Shivram to her ?
No.
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4. Whether the plaintiff is entitled for the
relief of the direction to the defendant
No.1 to disclose the information
regarding nomination, if any, in service
record of deceased Shivram in respect of
defendant No.2 ?
No.
5. What order ? N/M is disallowed.
Reasons:
As to Point Nos. 1 to 4 :
5. The plaintiff and her Advocate are not appearing in N/M.
Therefore, instead of dismissing the Notice of Motion on the basis of
material on record, the Notice of Motion has been taken up for hearing.
6. The plaintiff is claiming herself as legally wedded wife of
deceased Shivram. From the averments of the plaint, it is appearing
that on 12.3.1985, late Shivram married to defendant No.2. According
to plaintiff, on 24.01.1992, a mutual divorce was taken place between
deceased Shivram and defendant No.2. The divorce was taken as per
the custom and tradition of Meghwal Community. A deed of divorce
was prepared between the parties. According to plaintiff, it is a legal
and valid document of divorce between deceased Shivram and
defendant No.2. On 25.12.1992, deceased Shivram married to plaintiff.
According to plaintiff, vide succession certificate dated 07.07.2005
issued by Hon'ble Bombay High Court in Petition No.499 of 2003, she
found entitled to collect the debts and interests thereon as service
benefits of deceased Shivram. Shivram died on 06.12.2001. On
30.4.2013, because of death of employee Shivram on compassionate
ground, the defendant No. 1 has taken the defendant No.2 in service.
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According to defendant No.2, her marriage solemnized with deceased
Shivram on 12.3.1985 is still subsisting, because there is no decree of
divorce passed by the competent Court. Admittedly, no competent
Court has passed a decree of divorce between deceased Shivram and
defendant No.2. Prima facie, the document available on record dated
24.01.1992 is showing a divorce between Shivram and defendant No.2.
Prima facie, it is not shown that in Meghwal Community there is custom
of taking divorce only executing deed/document of divorce. The fact
that Family Court did not give any relief to the plaintiff, when she
presented the document of divorce dated 24.01.1992 seeking certain
reliefs. In absence of any decree of divorce of any competent court,
prima facie, it cannot be said that a divorce has been taken place
between the deceased Shivram and defendant No.2. The status of
defendant No.2 is as on date is as legally wedded wife of deceased
Shivram. According to plaintiff her marriage with deceased Shivram
was solemnized on 27.12.1992. When the marriage of deceased
Shivram and defendant No.2, was still subsisting and there was no valid
decree of divorce of competent Court, plaintiff cannot be said to be
legally wedded wife of deceased Shivram. It is true that in service
record as per wishes of deceased Shivram, the nomination to the service
benefit was of plaintiff. But that act of deceased Shivram appointing
her as nominee to his service benefit, does not confer the status on
plaintiff as legally wedded wife of deceased Shivram. It is appearing
from the record that for many years deceased Shivram and plaintiff
lined together. But in absence of a valid decree of divorce between
deceased Shivram and defendant No.2, plaintiff does not get the status
of legally wedded wife of deceased Shivram. Therefore, prima facie,
her insistence to provide her service on compassionate ground on the
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death of Shivram is not acceptable. Prima facie, it is appearing that
defendant No.1 was justified the providing service to defendant No.2 on
compassionate basis with effect from 30.4.2013. In absence of any
valid decree of divorce of competent Court, it may not be proper to
restrain the defendant No.2 from serving in defendant No.1 Bank on
compassionate basis.
7. As seen above, the relief to restrain the defendant No.2
from serving in the defendant No.1 Bank cannot be given at an interim
stage. Prima facie, plaintiff is not entitled to get that relief. Moreover,
the nature of relief is as such, which cannot be given at interim stage.
Plaintiff is asking to grant the interim relief, which can only be given at
final stage. But the final relief cannot be given at interim stage. State
of Uttar Pradesh & Others V/s. Sandeep Kumar Balmiki & Others
(2009) 17 SCC 555,.
8. According to plaintiff, on the basis of succession certificate
issued by the Hon'ble High Court on 7.7.2005, she is entitled to receive
certain service benefits of deceased Shivram. It is not in dispute that
she has received an amount of Rs.15,000/ towards compassionate
Gratuity and Rs.1,07,981/ towards the Group Saving Link Insurance
from defendant No.1. So far as other service benefits are concerned,
prima facie, it is appearing that Shivram had availed a loan of
Rs.1,47,770/ from his Staff Cooperative Credit Society by giving
undertaking to repay the loan installments and if not repaid, the same
be taken from his service benefits. It is shown by the defendant No.1
that even after remitting the amount of service benefits in loan, still an
amount of Rs.77,087/ is remained outstanding against deceased
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Shivram. It is not appearing that any service benefit has been given by
the defendant No.1 to defendant No.2. Defendant No.2 has neither
claimed, any service benefit of deceased Shivram has been given to her.
Therefore, there is no question of either restraining the defendant No.1
from releasing the amount of service benefit to defendant No.2 or
paying any service benefit to the plaintiff.
9. The suit is pending. Indeed, there was any nomination of
defendant No.2 made by deceased Shivram in his service record or not
is a question of fact. At the time of hearing of the suit, there shall be a
clarity to the fact that whether indeed during employment, late Shivram
at any occasion nominated the defendant No.2 to any service benefit or
not. At this stage, it is not proper to give any direction to the defendant
Nos. 1 and 2 to that behalf. Hence, answering point Nos.1 to 4
accordingly, following order is passed.
ORDER
Notice of Motion No. 392 of 2018 is disallowed with no order as
to costs and accordingly disposed off.
Dated : 16.09.2021 (H.S. SATBHAI)
Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 16.09.2021
Transcribed on : 21.09.2021
Signed on : 29.09.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 29.09.2019 5.50 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri H.S. Satbhai
(C.R.No. 59)
Date of Pronouncement of
JUDGMENT /ORDER
16.09.2021
JUDGMENT /ORDER signed by P.O. on 29.09.2021
JUDGMENT /ORDER uploaded on 29.09.2021
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