Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 62619 in SCSU 35919
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.626 OF 2019
(CNR No.MHCC010016272019)
IN
SHORT CAUSE SUIT No.359 of 2019.
(CNR No.MHCC010015482019)
Ashok Nandu Shetty }...PLAINTIFF.
Versus
State of Maharashtra & Ors. }...DEFENDANTS.
Shri.A.R.Pandey, learned advocate for the plaintiff.
Shri.Sachin Kadam, learned AGP for defendants.
CORAM: HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 26/03/2019)
1. By filing this Notice of Motion, plaintiff has claimed relief
to temporarily restrain the defendants from obstructing into or shutting
down or interfering with the running of business of plaintiff in the suit
shop, pending final disposal of the suit. Read the affidavit filed in
support to the Notice of Motion & reply filed by the defendants. Heard
learned Shri.A.R.Pandey, advocate for the plaintiff and learned Shri.
Sachin Kadam, AGP for the defendants. Perused the entire record.
2. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i)Whether primafacie case lies in favour of the
plaintiff? ...No.
ii)Whether balance of convenience lies in favour
of the plaintiff? ...No.
iii)Whether irreparable loss will cause to the
plaintiff if injunction as prayed is not granted in
his favour? ...No.
iv)What order? ...As per final order.
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R E A S O N S
AS TO POINT Nos.(i) TO (iii):
3. All the points are taken together for consideration. Learned
advocate for the plaintiff argued that plaintiff is lawfully running his
business of sell of Paan BidiCigarette from the suit premises by
obtaining the requisite license yet, defendants are creating obstruction
in the business of the plaintiff by directing the plaintiff to shut down the
shop at 10.00 p.m. even though, plaintiff is entitled to rum his business
from 5.30 a.m. to 1 a.m. as per the license. He argued that the staff of
defendant No.2 saddled penalty of Rs.1,200/ on the plaintiff on two
occasions i.e. on 11/10/2018 and 20/10/2018 by registering LAC case
No.1965 and 2042/2018 on the ground that plaintiff was found
running business in the suit shop in the midnight at 12.00 a.m.. He
further argued that defendants have no authority to restrict the plaintiff
from running his lawful business hence, it is necessary to restrain them
from creating obstruction into plaintiff's business by granting temporary
injunction otherwise, it will cause an irreparable loss to the plaintiff.
4. As against this, learned AGP argued that defendants have
never restrained the plaintiff from running his business from the suit
shop till 1.00 a.m.. He argued that plaintiff has raised false contentions
about imposing of penalty of Rs.1,200/ on the plaintiff by the staff of
defendant No.2 on the ground that plaintiff was found running business
in the midnight at 12.00 a.m.. He argued that the receipts produced by
the plaintiff are in the name of some other persons and not in the name
of plaintiff. He further argued that the shop of plaintiff is within 100
meters from Balmohan Vidyamandir and complaints have been received
by the police that plaintiff is carrying a business of sell of cigarettes and
pan from the suit premises because of which, the students are getting
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addicted to tobacco. He further argued that injunction can not be
granted against the police from taking legal action against wrongdoers
and on that count, plaintiff is not entitled for interim injunction.
5. At the outset, it may be stated that it does not appear to be
in dispute that plaintiff is running his business from the suit premises by
obtaining necessary license under the Shops & Establishments Act. It
also does not appear to be in dispute that as per the license, plaintiff
can run his business from the suit premises from 5.30 a.m. to 1.00 a.m..
Plaintiff has contended that the staff of defendant No.2 restrained him
from running business after 10.00 p.m.. Reliance of plaintiff is on two
receipts about imposing of penalty by the police by registering LAC
NO.1965/2018 and 2042/2018. Having gone through the copies of
those receipts produced by the plaintiff, I found that those receipts are
not standing in the name of the plaintiff. First receipt is in the name of
Arun Santappa Shetty and second is in the name of Santosh Parbat
Naik. Plaintiff has not explained in any manner as to how those persons
are concerned/connected with his business at the suit shop. In absence
of any explanation in that regard, those receipts are not primafacie
sufficient for accepting the contention of the plaintiff that defendants
are restraining him from running his business till 1.00 a.m. as per the
license granted in his favour by the Licensing Authority.
6. Defendants have not disputed the entitlement of plaintiff to
run his business lawfully from the suit premises as per the license
granted under Shops and Establishments Act from 5.30 a.m. to 1 a.m..
It appears to be the contention of defendants that the suit shop is
situated within 100 meters from Balmohan Vidyamandir & on account
of sell of bidi cigarettes by the plaintiff from the suit shop, students in
said school are getting addicted to tobacco. Indeed, there is no
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supporting material for accepting the contention of defendants that suit
shop is situated at a distance of 100 meters from the said school. Again,
there is no supporting material for accepting the contention of
defendants that plaintiff is engaged in selling tobacco articles like
cigarettes from the suit shop. In absence of any material in that regard,
contentions raised to that effect by defendants are not appearing to be
acceptable at this stage. However, it can not be a ground for accepting
the prayer of plaintiff for grant of interim injunction because, it was
essential for the plaintiff to produce proper material of his own in
support of his contention that defendants are illegally creating
obstruction into his business at the suit shop. Defendants cannot be
restrained by granting temporary inunction from performing their
lawful duties within four corners of Law. Since the material produced
on record by the plaintiff is not sufficient for accepting that defendants
are creating obstruction into his business at the suit shop illegally, I
hold that neither primafacie case nor balance of convenience do lie in
favour of plaintiff. In the result, there is no question of causing any
irreparable loss to the plaintiff if injunction as prayed is not granted. For
all these reasons, I recorded my findings on Point Nos.(i) to (iii)
accordingly & pass the following order.
O R D E R
Notice of Motion No.626/2019 stands rejected.
Costs in the main cause.
Date: 26/03/2019. (P.P.RAJVAIDYA)
Dictated on : 26/03/2019. Judge, C.R.No.12,
Transcribed on : 27/03/2019. City Civil Court,
Checked on : 27/03/2019. Gr.Bombay.
Signed on : 27/03/2019.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
29/03/2019 at 11.30 a.m. Mrs. Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.12)
Date of pronouncement of Order 26/03/2019
Order signed by P.O. on 27/03/2019
Order uploaded on 29/03/2019
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