Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1..
MHCC010017702019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.679 OF 2019
IN
SUIT NO.312 OF 2019
Hemangi Ganesh Kamerkar. … Plaintiff
Versus.
Avdhoot Ramkrishna Bagwe. … Defendant.
Appearance:
Adv. Harish Pawar for plaintiff.
Adv. Sachin Masurkar for defendant.
CORAM : HIS HONOUR JUDGE
R.R.Patare
COURT NO.2
DATED : 17th September, 2022
ORAL ORDER
This notice of motion is taken out by the plaintiff seeking order
of injunction restraining the defendant from creating third party interest
in the suit flat described in plaint para 2. Plaintiff has also requested for
appointed of Court Receiver with direction to take physical possession
of suit flat no.1201 described in the plaint para no.2 and put him in
possession of said flat by appointing him as a agent of the Court
Receiver. Plaintiff has filed suit for partition and separate possession
against the defendant in respect of two suit flats. It is stated that flat
no.1201 admeasuring 410.50 sq. fts. carpet area is vacant. It is alleged
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ORDER ..2..
that the defendant is in search of purchaser and likely to dispose of suit
flat.
2. Defendant filed reply and denied the right title and interest of
plaintiff in suit flat. It is contended that suit flat no.1201 was self
acquired property of Vinayak Gangaram Bagwe. He died issueless on
27.10.1987. He was bachelor. He made nomination in the name of
defendant in respect of flat no.1201. Defendant is the nephew of said
Vinayak Gangaram Bagwe. The society has transferred flat no.1201 in
the name of defendant on the basis of nomination made by deceased
Vinayak Gangaram Bagwe. It is further contended that flat no.1202
admeasuring 410.50 sq. fts. described in plaint para no.2 was in
possession of defendant’s father. It is contended that plaintiff has
relinquished her right in flat no. 1202 some time in the year 1999-2000
by accepting cash and jewellary ornaments from her father. It is
contended that both the suit flat were self acquired properties of his
uncle namely Vinayak Gangaram Bagwe and Waman Gangaram Bagwe.
It is alleged that plaintiff is not having any right in the suit flat.
3. Perused pleading evidence and heard advocate for the parties.
From the admitted facts on record, it is seen that one Gangaram Daji
Bagwe i.e., grand father of plaintiff and defendant had four sons i.e.,
Narayan, Ramkrishna, Vinayak and Waman. The relation between
plaintiff and defendant is not in dispute. Plaintiff is the daughter of Ram
Krishna and defendant is the son of said Ram Krishna. It has come on
record that two sons of said Gangaram namely Vinayak Bagwe and
Waman Bagwe were bachelor. Both the sons of said Gangaram are not
alive. The suit flat were originally acquired by Vinayak Bagwe and
Waman Bagwe. Both the suit flats entered in the name of defendant on
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ORDER ..3..
the basis of nomination made by Vinayak and Ramkrishna. This fact is
not in dispute. From the pleading and documentary evidence on record,
it is seen that plaintiff is having right in the suit flat. The question
whether plaintiff has relinquished her right will have to be decided after
recording the evidence. Plaintiff has specifically alleged that defendant
is in search of purchaser and apprehend transfer of flat no.1201 by the
defendant. In this backdrop, it is just and necessary to maintain status
quo as regards the title of suit flat. The plaintiff has made out prima
facie case for grant of injunction order restraining the defendant from
creating third party interest in the suit flat. The balance of conveyance
to that effect is in favour of plaintiff. The claim of plaintiff will become
inflactuous in case defendant succeeds to transfer the title of suit flat in
favour of third party and plaintiff will suffer irreparable loss.
4. The next question for consideration is whether appointment of
Court Receiver is necessary in the present case. Plaintiff’s suit is for
decree of partition. Defendant is already restrained from creating third
party interest in the suit flat. Only allegation is made that defendant is
searching for purchasers of suit flat. Plaintiff apprehends transactions of
flat no.1201 by defendant in favour of third party. Plaintiff can not be
put in possession of suit flat as an agent of Court Receiver. That will
amount to grant final relief. Plaintiff has not made out case for
appointment of Court Receiver. Defendant is in possession of both the
flats. In the result, following order is passed.
ORDER
1. Notice of Motion No.679 of 2019 is hereby partly allowed.
2. Defendant is hereby restrained from creating third party interest
in the suit flat by way of sale, lease, mortgage etc., till the final decision
of the suit.
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ORDER ..4..
3. Prayer of plaintiff for appointment of Court Receiver is hereby
rejected.
(R.R.Patare)
Judge
City Civil Court, Gr.Mumbai
Date : 17.09.2022
Typed on : 17.09.2022
HHJ signed on : 17.09.2022
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ORDER ..5..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 17.09.2022 , 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. R.R.Patare
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
17.09.2022
JUDGMENT/ORDER signed by P.O.
on
17.09.2022
JUDGMENT/ORDER uploaded on 17.09.2022
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