Interim Order 1

Order Details: Notice of Motion
Pdf Text: N.M.1398/19 in SC 436/19 1
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1398 OF 2019
(CNR.NO.MHCC010035882019)
IN
SUIT NO. 436 OF 2019
(CNR.NO.MHCC010016392019)
Kaushal Kumar Modi .. Plaintiff
Versus
1. Preeti Malik
2. Thane Bharat Sahakari Bank Ltd. .. Defendants
Mr. Girish Kedia Advocate for Plaintiff.
Mr. Satyadev Joshi Advocate for Defendant no.1.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Asstt. Judge
CR No. : 32
Dated : 18th April, 2019.
ORDER
1. Defendant no. 1 taken out this Notice of Motion
(a) to set aside the order dated 14.03.2019
(b) Pending hearing and final disposal of Notice of
Motion the effect and implementation of the
order dated 14.03.2019 be kindly stayed.
2. Defendant no. 1 while working with the Companies as
mentioned in the motion she has to visit and meet different centres for
the better performance and negotiations with the vendors for better
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profits, therefore the Hundai Verna Car No. MH01BY4929 was
provided to the defendant no. 1 for personal use. Group of Companies
of plaintiff had not paid the entire salary, bonus or increment to the
defendant no. 1, therefore it was agreed that car shall be considered as
being sold to her subject to payment of subsequent EMI of the
defendant no. 2 bank regarding the Car Loan. It is further contended
by defendant no. 1 that car was given to her for personal use in lieu of
PF, Bonus and increment. Car is standing in the name of plaintiff but
company bears the monthly EMI and company will get the benefit of
depreciation. It is further contented by defendant no. 1 that she had
paid 4 installments to defendant no. 2 bank and further amount of
Rs. 64,460/ to the plaintiff. Plaintiff never came forward to complete
the formalities of the sell of the car and started demanding more
amount than what was the outstanding loan amount, hence the process
of transferring the car in her name never took place. Defendant no. 1
further contended that her contact details were with the plaintiff but
plaintiff never took initiative to inform her about the suit instituted by
him. As soon as defendant no. 1 came to know about the order dated
21.03.2019 she contacted and informed her advocate and after getting
the information taken out this motion. Defendant no. 1 prays that
motion be made absolute in terms of prayer clause.
3. Plaintiff tendered his reply. The paper and proceeding were
served on defendant no. 1 at the address c/o. Davin Info Pvt. Ltd., Shop
No. 5, Lucky Star CHS Ltd., near T.B. Hospital, Jerbai Wadia Road,
Parel, Mumbai – 12 which were duly accepted and acknowledged by the
said company. In spite of the service defendant no. 1 chosen to remain
absent, accordingly matter was argued on 22.02.2019, 12.03.2019 after
which order came to be passed on 14.03.2019. As per the order, Court
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Receiver visited the aforesaid address to take physical possession of the
vehicle but defendant no. 1 refused to hand over the same. Therefore
defendant no. 1 has committed willful disobedience and breach of the
order of this court and for which plaintiff will take the appropriate
proceeding against the defendant no. 1. In the Email annexed by
defendant no. 1 wherein she has admitted that she had paid certain
installments and ready to deposit the sum of Rs. 7,98,000/ in the bank.
Suit vehicle is belonging to the plaintiff therefore required to be hand
over to the Court Receiver as per the order dated 14.03.2019.
Defendant no. 1 has no right to retain the vehicle with her. If
defendant no. 1 had any outstanding dues with Umashankar Modi and
his concern companies he can file separate and independent claim
against them, but defendant no. 1 can not illegally retain the vehicle
with her. The motion is misconceived, not tenable, hence be dismissed
with cost.
4. Heard Shri Satyadev Joshi for defendant no. 1 and Ld.
Advocate Shri. Girish Kedia for plaintiff.
5. As on today's position is that plaintiff is the registered
owner of car of Hundai Verna MH01BY4929 and the car is
hypothecated with defendant no. 2. Defendant no. 1 left the service of
MBC Group Company in July2017. Plaintiff is the one of the Directors
of MBC Group Company and its sister concern. It was agreed by
plaintiff to sell the car Hundai Verna MH01BY4929 to defendant
no. 1 subject to further payment of EMI. I have also perused the Email
exchange between Shri Umashankar Modi, the father of plaintiff and
defendant no. 1, it appears that, certain amounts are outstanding of the
defendant no. 1 with the MBC Group Companies in which plaintiff is
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one of the Director. It is undisputed fact on record that installments of
loan are due and outstanding against the car loan with the plaintiff. It
also appears from the Emails that defendant no. 1 agreed to make
payment of Rs. 8,88,000/ then only start the process of transfer of car
in the name of defendant no. 1. But the fact is that defendant no. 1
neither made payment to MBC Group nor the MBC Group paid the
outstanding dues to the defendant no.1, therefore, car is not transferred
in the name of defendant no. 1 as plaintiff not signed on the transfer
papers of the car.
6. It is the contention of defendant no. 1 that Car No. MH01
BY4929 was given to defendant no. 1 for personal use in lieu of bonus,
increment by the company and not by the plaintiff. Whatever the
outstanding dues of defendant no. 1 is with the MBC Group Companies
or its sister concern then remedy is available for defendant no. 1 to take
course of law for filing separate claim against Plaintiff, including
Umashankar Modi and other Directors of the Company. But as on
today's date defendant no. 1 has no right to retain the suit vehicle with
her. It is pertinent to note that defendant no. 1 not disclosed the
whereabouts of the suit vehicle but merely states that car is out of
station.
7. I have perused the Site Report prepared by the Court
Receiver dated 27.03.2019 that car is not in Mumbai and defendant not
given the whereabouts of the car to the Court Receiver, therefore
Receiver could not take the possession of the car. Car i.e. the suit
vehicle is yet not transfer in the name of defendant no. 1, therefore
defendant no. 1 has no right to retain the car with her though her dues
may be outstanding with the plaintiff and his MBC Group Companies.
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8. Defendant no. 1 taken out this motion under Order XXXIX
Rule 4 of the Code of Civil Procedure. No such case is made out by
defendant no. 1 to set aside the order dated 21.03.2019 as it is not
necessary so to do in the interest of justice.
9. In view of above discussions, I pass the following Order :
ORDER
Notice of Motion No. 1398/2019 is dismissed with cost.
Date : 18.04.2019 (Pushpa N. Rao)
Ad hoc Asstt. Judge
Bombay City Civil Court
Greater Mumbai.
Dictation Direct typed on computer : 18.04.2019.
Signed by HHJ on : 18.04.2019.
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT / ORDER.”
UPLOAD DATE AND TIME : 18.04.2019 at 5.55 pm
NAME OF THE STENOGRAPHER : Y.M. SAKHARKAR
Name of the Judge HHJ Smt.Pushpa N Rao
C.R.No.32
Date of pronouncement of Judgment/
Order
18.04.2019
Judgment/Order signed by P.O. on 18.04.2019
Judgment/Order uploaded on 18.04.2019
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