Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 629/19 in Suit 280/19
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 629/2019
(CNR No. MHCC010016112019)
IN
S.C. SUIT NO.280/2019
1. Smt. Jyoti Naresh Gauri
2. Ms. Trusha Naresh Gauri
3. Ms. Tanushree Naresh Gauri ...Plaintiffs
Versus
1. Shri Haresh Raghunath Gauri
2. Smt. Hirabai Raghunath Gauri
3. Smt. Jayshree Kamlakar Patil
4. Smt. Sunita Jitendra Thale
5. M/s. Sidhivinayak Construction. ...Defendants
Appearances :
Adv. Mr Samkit Shah for plaintiffs.
Adv. Ms. Reshmi Parab h/f Adv. P. S. Tiwari for defendant nos. 1 to 3.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 03
Date : 11.10.2021.
ORDER
1. The plaintiff no.1 has filed instant Notice of Motion seeking
following reliefs :
(a) Pending the hearing and final disposal of suit this Hon'ble
Court be pleased to give directions to the Developer i.e.
Defendant no.5 restraining him to hand over flat in
redevelopment building in Chembur i.e. Flat No.401 and 402,
4th Floor, Apurva Coop. Hsg. Society, Chembur Naka,
Chembur, Mumbai 400 071 to Defendant no.1 and 2.
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(b) Pending the hearing and final disposal of the suit the
defendants herein be ordered and directed to deposit in this
Hon'ble Court every month at the rate of Rs.60,000/ being
mesne profit to the plaintiff in respect of the suit property and
joint family business of Raghunath Gauri from the date of
filing suit till the decree, possession and realization of the
same.
(c) Pending the hearing and final disposal of the suit this Hon'ble
Court be pleased to appoint the Court Receiver, High Court,
Bombay to take charge of suit flat i.e. Flat No.401 and 402,
4th Floor, Apurva Coop. Hsg. Society, Chembur Naka,
Chembur, Mumbai 400 071 shall be given to the plaintiff
no.1 as an agent of the Court Receiver as per Order 40, Rule
1 of CPC.
(d) Pending the hearing and final disposal of suit this Hon'ble
Court be pleased to restrain the defendants from creating any
third party rights, and/or deal with in respect of the joint
family properties mentioned in the Schedule, annexed to the
Plaint, at Exh."H".
(e) Interim and adinterim reliefs in terms of prayers (a),(b)(c)
and (d) above be granted.
(f) Costs of the Notice of Motion be provided for
(g) For such other and further reliefs as the nature and
circumstances of the case may require.
2. It is contended by the plaintiff that, she has filed instant
Suit for declaration, directions and injunction against defendants with
respect to her claim of 1/5th share in the suit property. It is contended
that, after demise of her husband, she is entitled for 1/5th share in her
husband's property, which consists of certain machineries. She
apprehends that the defendant nos.1 and 2 taking advantage of death
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of her husband, will sale the property. The defendants have till today
failed to give account to the plaintiff. Therefore, it is necessary to issue
order of injunction restraining the defendants from parting with the
possession, alienating, mortgaging or creating any 3rd party interest in
the suit property.
3. The Motion is opposed by the defendant no.1 and 5 by
filing their respective say. Their advocates were constantly absent,
therefore this court taken up the Motion for hearing on the basis of
pleadings of the plaintiff.
4. Heard Ld Advocate for the defendants. I have perused the
pleadings. It is the contention of the plaintiff that, she is widow of
Naresh Gauri. Defendant nos. 1 to 4 are her inlaws. Her husband
expired on 3.1.2013. It is contended by the plaintiff that, her husband
was conducting family business with her fatherinlaw. Out of aforesaid
business, they have acquired several properties as mentioned in the
plaint. Thus, in pursuance of same, she claims 1/5th share in the suit
property. She has also claimed Rs.60,000/ towards mesneprofit. The
plaintiffs also claim that, she is also having share in the suit flat situated
at Chembur.
5. The plaintiff prayed by way of instant Notice of Motion for
directions against defendant no.5 restraining him to hand over suit flat
situated at Chembur. She has also sought relief of directions to the
defendants to deposit an amount of Rs.60,000/ every month being
mesneprofit and to appoint a Court Receiver to take charge of the suit
property.
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6. The defendant no.5 by way of reply contended that, they
have executed an agreement i.e. Permanent Alternate Accommodation
on 6.6.2016, which is duly registered on 12.9.2016 with defendant no.1
and they are intending to hand over alternative premises in the month
of AugustSeptember, 2019. Defendant no.1 in his reply specifically
contended that, he has received possession of the flat nos.401 and 402
in lieu of earlier flat nos. 9 and 10. Thus,it appears to me that, the claim
of the plaintiff as per prayer clause(a) has become infructous and
hence, cannot be granted.
7. As far as regarding mesneprofit is concerned, I am of the
view that, in the event, plaintiff succeeds in the suit then she would be
entitled for the mesneprofit and that too after conducting due enquiry
in the same. I am of the view that, the cause of action for the mesne
profit would arise only at the end of trial. Hence, the prayer clause (b)
is misconceived.
8. As far as regarding prayer clause(c) is concerned, for
appointment of Court Receiver, the plaintiff failed to show that the suit
properties are being wasted. Moreover, in view of judgment of the
Hon'ble Bombay High Court in the case of Girish M. Joshi V/s. Jagat
Manubhai Parik & Co. (Writ Petition No. 2527 of 2009) dated 11th
September 2009, this court is not empowered to appoint the Court
Receiver.
9. Hence, I am of the view that, the plaintiff has failed to
make out any prima facie case to grant any relief as prayed in the Notice
of Motion and same needs to be dismissed. Thus, I proceed to pass
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following order :
ORDER
1. Notice of Motion No. 629/2019 is hereby dismissed.
2. Plaintiff to bear costs of the Motion.
3. Notice of Motion No. 629/2019 is disposed off accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 11.10.2021 Greater Bombay.
Dictated on : 11.10.2021
Typed on : 11.10.2021
Draft Submitted on : 12.10.2021
Signed on : 13.10.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
14.10.21, at 2.45 pm (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD
(C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 11/10/2021
JUDGMENT/ORDER signed by P.O. on 13/10/2021
JUDGMENT/ORDER uploaded on 14/10/2021
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