Final Order 1

Order Details: Notice of Motion
Pdf Text: N.M.766/19 in SC 436/19 1
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.766 OF 2019
IN
SUIT NO. 436 OF 2019
(CNR.NO.MHCC010020082019)
Kaushal Kumar Modi .. Plaintiffs
In the matter between –
Kaushal Kumar Modi
Versus
Preeti Malik & Anr. .. Defendants
Mr. Girish Kedia Advocate for Plaintiffs.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Asstt. Judge
CR No. : 32
Dated : 14th March, 2019.
ORDER
. Plaintiff taken out this Notice of Motion for
(a) Pending hearing and final disposal of the suit for
appointment of Court Receiver of High Court, Bombay with order and
direction to take physical possession of Hundai Car No.MH01BY4929
from the custody of defendant no.1, her agent, driver or servant or any
other person claiming to her from whom the possession of the said
vehicle is found.
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N.M.766/19 in SC 436/19 2
(b) Pending hearing and final disposal of the suit defendant
no.1 be directed to disclose the whereabouts of the vehicle and
defendant no.1 be restrained or her agent, driver, servant or any other
person claiming to her from using, plying or dealing with the said
vehicle in any manner.
(c ) Pending the hearing and disposal of suit defendant no.1 be
directed to pay Rs.4,06,255/ in respect of the vehicle during the period
in which Defendant no.1 was in use, possession and occupation of the
said vehicle as more particularly described in Annexture Exh.O.
2. Plaintiff is the Director of MBC Group of Companies.
Plaintiff availed the vehicle loan from defendant no.2 in April 2015.
Vehicle loan was sanctioned by defendant no.2 to the plaintiff. The
vehicle is duly registered under the RTO and the registration number is
MH01BY4929. Plaintiff is the owner of Hyundai Car. Plaintiff has
hypothecated the said vehicle in favour of Defendant no.2 as per the
terms of sanctioned loan. Plaintiff is required to pay EMI of Rs.32,235/
till the entire loan amount is paid.
3. Defendant No.1 joined the MBC Group of Companies and
was given a job as a CEO, particularly Marketing Executive and to
represent to various educational institutions on behalf of the said
company. Defendant No.1 disassociated from the MBC Group of
Companies in the month of August 2017. Defendant No.1 is plying the
said vehicle, however, ownership there of stands on his name and
Defendant no.1 has no right, title or authority to occupy or ply the said
vehicle. Plaintiff also lodged complaint against Defendant No.1. Now,
defendant no.1 has realised that plaintiff had filed police complaint
against her and police authority will take possession of the said vehicle,
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N.M.766/19 in SC 436/19 3
therefore, she had hidden said vehicle at some unknown place and
plying herself which is contrary to the ownership right. Since
Defendant No.1 is unauthorizedly using and plying the said vehicle on
road and if any accident take place with the said vehicle, the entire
liability shall lie with the plaintiff. Hence, plaintiff prays that Notice of
Motion be made absolute in terms of prayer clause.
4. Considering the averment in the Notice of Motion following
points are arise for my determination and recorded my finding as per
reasons given below.
SR.
NO.
POINTS FINDINGS
1. Does plaintiff made out a prima facie
case for grant of interim relief on
injunction and appointment of Court
Receiver in his favour?
Yes.
Only with respect to
appointment of Court
Receiver.
2. Does plaintiff entitled for recovery of
Rs.4,06,255/ from the defendant
no.1.? In the Negative.
3. What order? As per final order.
5. Heard Ld. Advocate Shri. Girish Kedia for plaintiff.
REASONS
AS TO POINT NOS. 1 AND 2 :
6. According to plaintiff, defendant no.1 is using the car
bearing no.MH01BY4929 prior to July 2017. After perusal of the
documents placed on record by plaintiff, it appears that there was
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N.M.766/19 in SC 436/19 4
exchange of Email between father of plaintiff and defendant no.1.
Defendant No.1 had expressed her desire and requested the plaintiff to
transfer the ownership of car bearing no.MH01BY4929 in her name
subject to payment of further EMI directly to defendant no.2.
7. Defendant No.1 left the job of MBC Group Company in
August 2017, since then custody of car is with her. Yet the ownership
of the car is not transferred in the name of defendant no.1. Plaintiff is
the registered owner of car bearing no. MH01BY4929. Therefore,
prima facie, plaintiff has a strong case in his favour. Therefore, special
interference with the custody of defendant no.1 is required, there being
a well founded apprehension that the car will be dissipated or that
other irreparable mischief may be done with the hands of defendant
no.1. Therefore, it is just and convenient to appoint a Court Receiver
for custody of car bearing no.MH01BY4929. For the services of Court
Receiver plaintiff has to deposit the remuneration of Rs.15,000/ for the
appointment of Receiver in the court. If the Court Receiver require any
other expenses for taking the possession of the car from the defendant
no.1 or from any other person claiming through her from whom the
possession of said vehicle is found, then Court Receiver has to produce
the bills and then that bills can be adjusted at the time of passing
decree.
8. Plaintiff is the borrower of defendant no.2. He had availed
the loan and purchased the motor vehicle for a sum of Rs.12,81,273/.
As on todays date plaintiff is the registered owner of the said vehicle
and still standing in his own name. Therefore, plaintiff is liable to pay
the EMI as per the loan agreement executed by him with defendant
no.2 bank till the loan is fully satisfied. Therefore, at this stage the
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N.M.766/19 in SC 436/19 5
prayer (c) of the plaintiff in the Notice of Motion cannot be considered.
9. Plaintiff has filed the affidavit of service with the statement
that defendant no.1 is served on David Info Pvt. Ltd., Shop No.9, Lucky
Star CHS Ltd., Near T.B. Hospital, Jabai Wadia Road, Parel, Mumbai –
400 012 by hand delivery. Inspite of service defendant no.1 neither
appear nor tendered her reply. Therefore, no question arise to give
direction to defendant no.1 to disclose the whereabouts of the vehicle.
10. In view of above discussion, defendant no.1 is
unauthorizedly using and plying the motor vehicle on road and if any
accident take place with the said vehicle, the entire liability shall lie
with the plaintiff. On the other hand, if the vehicle is taken out from
the possession of defendant no.1 then no harm will be caused to her.
Considering this aspect, plaintiff has made out prima facie case in his
favour for grant of relief of temporary injunction and appointment of
Court Receiver of High Court, Bombay as prayed in the Notice of
Motion. Hence, I answered Point Nos. 1 accordingly and Point No.2 in
the negative and pass the following order.
ORDER
1. Notice of Motion No.766/2019 is partly allowed only with
respect to prayer (a) that is the appointment of Court Receiver of High
Court, Bombay of the Notice of Motion.
2. Prayer of temporary injunction and direction to payment of
Rs.4,06,255/ in respect of vehicle are hereby rejected.
3. Plaintiff is directed to deposit a sum of Rs.15,000/ as a
remuneration of Court Receiver of High Court, Bombay in the High
Court, Bombay.
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N.M.766/19 in SC 436/19 6
4. After deposit of remuneration, Court Receiver of High Court,
Bombay is directed to take possession of car bearing no. MH01BY
4929 from defendant no.1 or any other person claiming through her
from whom the possession of vehicle is found and kept the possession
with him till the further orders of the court.
Date : 14.03.2019 (Pushpa N. Rao)
Ad hoc Asstt. Judge
Bombay City Civil Court
Greater Mumbai.
Dictation Direct typed on computer : 14.03.2019.
Signed by HHJ on : 15.03.2019.
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT / ORDER.”
UPLOAD DATE AND TIME : 15.03.2019 at 5.35 pm
NAME OF THE STENOGRAPHER : P.P.Parab
Name of the Judge HHJ Smt.Pushpa N Rao
C.R.No.32
Date of pronouncement of Judgment/
Order
14.03.2019
Judgment/Order signed by P.O. on 15.03.2019
Judgment/Order uploaded on 15.03.2019
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