Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 710/20 in S.C. Suit 2734/1995
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 710 OF 2020
IN
S.C. SUIT NO. 2734 OF 1995
CNR NO. : MHCC010018682020
Bharat S. Davda and Ors …Plaintiffs
Versus
Narendra A. Tanna and Ors ...Defendants
Appearance:
Mr. Vatsal Shah, Advocate for the Defendant No. 9.
Mr. S. S. Redekar, Advocate for the Plaintiff.
CORAM : SMT. S.S. NAGUR,
JUDGE, (C.R.NO.66)
DATE : 19/03/2022
ORDER
(Dictated in Open Court)
1) The Notice of Motion is filed by defendant No. 9 to set
aside the order dt. 18.09.2019 passed in Notice of Motion No. 507 of
2018 partly to the extent of appoint of plaintiff as an agent of Court
Receiver without payment of Royalty in respect of Room No. 27, 1st
Floor, Krishna Kunj 4th Dadiseth Road, Babulnath, Mumbai and instead
order appointment of agent in respect of said room on usual terms and
conditions including payment of Royalty and security. The Notice of
motion is supported by affidavit of Hansa D. Radia, defendant NO. 9.
2) The defendant No. 9 stated that the order is passed in
Notice of Motion No. 507 of 2018 without hearing the defendant No. 9.
Adv. For defendant No. 9 could not appear due to oversight and
inadvertence. She came to know the above order on 18.12.2019. There
is delay of 110 days to file notice of motion and requested to condone
the same. The defendant no. 9 has not disputed direction of the court to
the receiver to take possession of room No. 27 but the appointment of
plaintiff as an agent of the court receiver for the said room without
Royalty. The defendant No. 9 stated that during the pendency of the
-- 1 of 4 --
2 NM 710/20 in S.C. Suit 2734/1995
suit some coowners should be allowed to use suit property without
payment of Royalty and/or security to the exclusion of other coowners.
Hence prayed to allow the notice of motion.
3) The plaintiff filed reply through affidavit of Shri. Bharat S.
Davda, plaintiff No.1 and denied the contents of Notice of Motion. The
plaintiff stated that the Notice of Motion is not maintainable. The order
dt. 18.09.2019 is implemented by the Court receiver therefore the
Notice of motion has become infructous. Hence prayed to reject the
Notice of Motion.
4) Heard Advocate Mr. Vatsal Shah for defendant no. 9 and
Advocate S. S. Redekar for plaintiff. Perused contents of notice of
motion and reply supported by affidavit. I have also gone through the
order passed by my predecessor in Notice of Motion No. 507 of 2018.
5) On perusal of report of receiver bearing No. 64 of 2020
received on 13.03.2020 the para No. 3 of report shows that the
possession of Room No. 27 was handed over to plaintiff by taking
provisional undertaking dt. 14.02.2020. The said room was locked
therefore the said lock was broken. The inventory of articles lying in the
room was prepared. The articles/materials of the room was also handed
over to plaintiff along with the possession of the said room.
6) The Notice of Motion No. 507 of 2018 is decided on
18.09.2019 by my predecessor. The para No. 2 of the order shows that
none of the defendant opposed the application by filing their say. The
order was passed to handover the possession to the plaintiff as agent of
the court receiver without payment of any royalty. The plaintiff has filed
the suit for possession and other reliefs against defendants. The
plaintiffs and defendant Nos. 4 to 7 are coowner of the suit property
known as Krishna Kunj 4th Dadiseth Road, Babulnath, Mumbai. The
-- 2 of 4 --
3 NM 710/20 in S.C. Suit 2734/1995
plaintiff being one of the coowner has been appointed as agent of the
Room no. 27. None of the defendants raised any objection for taking
over possession by the plaintiff as an agent of the Court Receiver.
7) The defendant No. 9 has raised objection only on the
ground that possession should have been handed over to plaintiff with
fixation of Royalty amount. Adv. For plaintiff has relied on authority
reported in Rentworks India Pvt Ltd V.s India Infoline Ltd (Writ Petition
No. 9999 of 2013, Hon’ble Bombay High Court). The question arose
before Hon’ble High court for consideration whether a civil court in
absence of specific provision can sit in appeal over its own order and set
aside the same. The Honble High court held that the scheme of
procedure under the Code of Civil Procedure for regular suits does not
ordinarily allow a Court to sit in appeal over its own order or to
reconsider the same.
8) The present notice of motion is nothing but review of the
order as defendant No. 9 is not disputing the order but desires
modification in order to extent of payment of Royalty by the plaintiff for
the said Room. The plaintiff being one of the coowner has taken over
the possession of Room No. 27 therefore the objection raised by
defendant No. 9 is not tenable. Hence pass following order :
ORDER
1. The notice of motion is rejected.
2. No order as to cost.
3. Accordingly, the notice of motion is disposed of.
(SMT. S.S.NAGUR )
Judge
Dt.: 19/03/2022 City Civil Court, Gr. Mumbai
Dictated and typed on : 19.03.2022
Checked on : 21.03.2022
Signed on : 21.03.2022
-- 3 of 4 --
4 NM 710/20 in S.C. Suit 2734/1995
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF TYPIST
21/03/2022 5.55 p.m. Mr. Mohit M. Patange
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.66)
Date of Pronouncement of
Judgment/Order.
19/03/2022
Judgment/order signed by P.O on 21/03/2022
Judgment/order uploaded on 21/03/2022
-- 4 of 4 --