Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 536/18 Suit No. 8486/95. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 536 OF 2018
(CNR NO. MHCC010020722018)
IN
S. C. SUIT NO. 8486 OF 1995
(CNR NO. MHCC010126372012)
(HIGH COURT SUIT NO. 1446 OF 1995)
Ashok Shamalji Thakkar ...Plaintiff
Versus
1. Shamalji Odhavji Thakkar (deleted)
1(a). Shri Ramesh Shamalji Thakkar and Others ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 4th OCTOBER, 2019.
Mr. Narula, Advocate for Plaintiff.
Mr. Mehul Shah, Advocate for Defendant No.3(b) to (d).
ORDER
This is a motion filed by plaintiff for appointment of Court
Receiver to suit property i.e. Flat No.601 at “Heera Panna”, Haji Ali
Road, Tardeo, Mumbai.
2. Perused reply filed by defendant 3(b) to 3(d), rejoinder
filed by plaintiff and surrejoinder filed by defendant 3(b) to 3(d).
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N/m No. 536/18 Suit No. 8486/95. 2 Order.
3. Ld. Advocate Narula for plaintiff submits that in view of
joint agreement dated 09/04/1988, defendant Kirtikumar has
relinquished the rights from the property of HUF including suit flat.
Flat No.61 was standing in the name of defendant no.3, it was sold and
from the consideration received of that flat, suit property came to be
purchased again in the name of defendant no.3. It is requested to
peruse recitals in agreement dated 09/04/1988. After demise of
defendant no.3(a), nobody is residing in suit flat. It is lying vacant.
Therefore it is requested for appointment of Court Receiver and to lease
out the property to fetch some income from the suit property. Advocate
Narula added that it is contended by defendant no.3(d) that she is
residing in suit flat. However, there are documents filed by plaintiff to
show that defendant no.3(d) Seema Shah is residing at her matrimonial
home near G.P.O., Fort. In view of change in circumstances in compare
to Notice of Motion No. 1298/2004, it is claimed for appointment of
Court Receiver to generate the income from suit property.
4. Ld. Advocate Mehul Shah for defendants 3(b) to (d)
submits that since 1977 plaintiff is not residing in India. The agreement
dated 09/04/1988 does not bear the signature of defendant no.3. The
Flat No.61 came to be sold on 05/07/1989. Present suit has been filed
after 6 years from the sale of Flat No.61. For the similar relief Notice of
Motion No. 1298/2004 was filed by plaintiff which was rejected by the
Hon'ble High Court on 27/01/2005. In view of undertaking filed by the
defendant no.3(a) to (d) on 20/01/2005, it is submitted that defendant
no.3(d) Seema Shah is residing in suit flat. It is claimed to reject the
motion.
5. On perusal of Notice of Motion No. 1298/2004, it contains
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N/m No. 536/18 Suit No. 8486/95. 3 Order.
two prayers i.e. (a) appointment of Court Receiver and (b) injunction
against defendants 3(a) to (d). It is to note that in view of undertaking
given by defendant no.3(a) to (d) on 20/01/2005, the Hon'ble High
Court Original Side has rejected the motion on 27/01/2005. According
to ld. Advocate Narula for plaintiff, there are change in the
circumstances i.e. after demise of the some of the defendants, suit flat is
lying vacant, therefore plaintiff has preferred the motion.
6. The question at this juncture is not concerned with whether
flat is lying vacant or can it generate income from idle property.
Present suit is 24 years old, it was posted for issues, however none party
has insisted for framing issues nor they filed draft issues. It prima facie
appear that none has obtained steps to concentrate on hearing to
dispose off the suit. It requires evidence from both sides in respect of
consideration received from Flat No.61, which was used in purchase of
suit property. It is contention of plaintiff that in view of joint agreement
dated 09/04/1988 defendant no.3 has relinquished his right, however it
is resisted by defendant that it does not bear signature of defendant
no.3(b). Therefore, it would be immature decision to draw any
conclusion in respect of any amount of Flat No.61 was used in purchase
of suit property. There is no substance in motion. Considering
aforesaid discussion, as suit is 24 years old, it would be appropriate to
concentrate on final adjudication. Resultantly, notice of motion
deserves to be rejected. Hence the order :
ORDER
1. Notice of Motion No. 536/2018 stands rejected.
2. Both side to file draft issues alongwith list of witnesses and
deliver a schedule to expedite hearing.
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N/m No. 536/18 Suit No. 8486/95. 4 Order.
3. N/m No. 536/18 is disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 04/10/2019. Mumbai.
1. Dictated on : 04/10/2019.
2. Transcribed on : 07/10/2019.
3. Signed on : 07/10/2019.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
07/10/2019. 5.49 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 04/10/2019.
Judgment/Order signed by P.O. on 07/10/2019.
Judgment/Order uploaded on 07/10/2019.
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