Final Order 1

Order Details: Notice of Motion
Pdf Text: : 1 : N/M No. 539/18 in Suit 8384/1986
CNR No.MHCC01-0020772018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 539 OF 2018
IN
SUMMARY SUIT NO. 8384 OF 1986
M/s. Stars International Pvt. Ltd. .. Plaintiffs.
V/s
N. Rupenkumar & Company .. Defendant
Appearance :
Ld. Adv. Shri. Uday Jagusthe for plaintiff.
Ld. Adv. Shri. Paresh Madkaikar for defendants.
CORAM: SMT. S.S. NAGUR, ADHOC JUDGE &
ASST. SESSIONS JUDGE,(C.R. No. 13).
DATE : 7th February, 2019.
ORDER
The Notice of Motion is filed by the defendant to
impound the indenture of assignment and transfer dated
10.07.1989 produced and filed by the plaintiff. The notice of
motion is supported by affidavit of Nayan Premchand Shah, one of
the partner of the defendant wherein he on oath stated that the
plaintiff has produced the above document. The assignment and
transfer of indenture is dated 10.07.1989. The said indenture
clearly reveals that on total consideration of Rs. 1 lakhs and
allotment of shares having paid value of Rs.91,000/ to the
assignor “Haresh Nyalchand Matalia”(the original plaintiff) by the
assignees “ Star International Private Limited” have taken over the
business of the plaintiff. The indenture is insufficiently stamped
and not registered and therefore, not admissible in evidence.
Hence, prayed to impound the document.
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: 2 : N/M No. 539/18 in Suit 8384/1986
2 The plaintiff has filed affidavitinreply and has denied
the contents being false, frivolous and baseless. The suit is
pending since 1986 and the present n/m is filed with a view to
delay the effective hearing of the suit. The document is not in
respect of immovable property therefore, does not require
registration as per the provision of Registration Act. The document
at Sr.No. 2 is certified copy and the same is already exhibited in the
proceeding pending before the Addl. Sr. Civil Judge and ACJM,
Surat, Gujrat. Hence, prayed to dismiss the n/m with costs.
3 Heard Ld. Advocate Shri. Paresh Madkaikar for
defendants and Ld. Advocate Shri. Uday Jagushte for plaintiff.
Perused the application and say. I have gone through the record.
4 The plaintiff has filed this suit for recovery of
Rs.7,78,580/ for the diamonds sold to the defendants. The
plaintiff has amended the plaint and the Star International Pvt. Ltd.
is substituted to the original plaintiff. The original plaintiff has
executed the indenture dated 10.07.1989 for transferring the
business to the present plaintiff. The defendant desire to impound
the said document on the ground that it is insufficiently stamped.
5 The advocate for defendant has drawn Maharashtra
Stamp Act wherein section 33 prescribed examination and
impound of instrument, section 34 provides that the document
insufficiently stamped are inadmissible in evidence and section 35
stipulates that where a document is admitted in evidence, its
admission cannot be called in question at any stage in same suit or
proceedings on the ground that the instrument has not been duly
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stamped.
6 The advocate for defendants relied upon the citation
reported by Hon'ble High Court of Madras in V. Govindasamy V/s
V. Perumal (C.R.P.(PD) No. 3436 of 2011, dated 06.08.2014).
The facts of this case is that the suit was filed for declaration of
absolute ownership of the property on the basis of saledeed. The
instrument involved in this case is immovable property. Section 17
of the Registration Act specifically relates to the immovable
property to be registered. The Registration Act, 1908, was enacted
with intention of providing orderliness, discipline and public notice
in regard to transactions relating to immovable property and
protection from fraud and forgery of documents of transfer.
7 The plaintiff in the affidavitinreply has specifically
stated that the said instrument is already exhibited by Addl. Sr.
Civil Judge and ACJM, Surat, Gujrat. The nature of the suit is for
recovery of money. The original plaintiff has sold the business to
the present plaintiff. Therefore, notice of motion of the defendant
to impound the document that to business deal of the original
plaintiff with the present plaintiff is not tenable. Hence, the
following order:
ORDER
1. Notice of motion no. 539 of 2018 is rejected.
2. No order as to costs.
( S.S. NAGUR )
AdHoc & Asst. Sessions Judge
City Civil Court,
Date : 07.02.2019. Gr. Bombay.
Dictated on : 07.02.2019
Transcribed on : 07.02.2019
Signed on : 11.02.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 13.02.2019 347 pm
NAME OF STENOGRAPHER : Mrs. Rekha P. Patil
Name of the Judge
(With Court Room No.)
HHJ Smt. S.S. Nagur
C.R. No.13
Date of Pronouncement of JUDGMENT/
ORDER
07.02.2019
JUDGMENT/ORDER signed by P.O. on 11.02.2019
JUDGMENT/ORDER uploaded on 13.02.2019
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