Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 943/19 in Suit No. 8589/99. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 943 OF 2019
(CNR NO. MHCC010024982019)
IN
SUIT NO. 8589 OF 1999
(CNR NO. MHCC010069311999)
(HIGH COURT SUIT NO. 2494 OF 1999)
Smt. Sudha Shrikrishna Pendse ...Plaintiff
Versus
Mr. Shriram Maruti Pendse and Others ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 16th OCTOBER, 2019.
Mr. Nagda, Advocate for Plaintiff.
Defendant No.1 present in person.
ORDER
This is a motion taken out by plaintiff to sell the suit
property by public auction and value / amount received in public sale
be distributed as per the shares adjudicated by this Court in a Judgment
dated 29/09/2016.
2. Perused reply submitted by defendants 1 and 2.
3. Ld. Advocate Nagda for plaintiff submits that shares are
decided by the judgment dated 29/09/2016 and preliminary decree is
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N/m No. 943/19 in Suit No. 8589/99. 2 Order.
drawn by this Court. In view of said judgment, plaintiff entitled for
1/4th, defendant no.1 Shriram Pendse entitled for ½ and defendant
no.2 Shailendra Pendse entitled for 1/4th share. Defendant no.2 Mr.
Shailendra Pendse, party in person, admitted the argument of advocate
Nagda. It is contended that it is observed by Court Commissioner /
Architect Mr. H. Mehta that the suit property cannot be divided as per
the shares considering the nature and location of the suit property i.e.
carpet area of 434.15 sq.ft. It is not possible to distribute the property
as per decision of this Court. It is necessary to sell the property.
4. Perused reply submitted by defendant no.1. Mr. Shriram
Pendse, defendant no.1 submits that in view of then valuation in the
year 1999, plaintiff has valued the suit property for Rs.3,00,000/
(Three Lacs). He is ready to purchase the suit property for
Rs.3,00,000/. He is ready to pay the amount of Rs.75,000/ to plaintiff
and defendant no.2 equally.
5. Defendant no.1 Mr. Shriram Pendse relied over Malati
Ramchandra Raut V/s. Mahadevo Vasudeo Joshi (1991 AIR (SC)
700), wherein, it is observed that whenever the shares in question in
the properties come to be sold to the persons entitled to buy them
under Section 3, the price of those shares will have to be determined on
the basis of the valuation made with reference to the time of accrual of
the right.
6. It is replied by ld. Advocate Nagda for plaintiff that there
are various rulings, wherein, it is observed that valuation of the suit
property is to be counted when the right was accrued and application
has been submitted by the concern. He relied over R. Ramamurthi
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N/m No. 943/19 in Suit No. 8589/99. 3 Order.
Iyer V/s. Raja V. Rajeswara Rao AIR 1973 SC 643.
7. Ld. Advocate Nagda relied on para no.4 in Gopal Mitra
V/s. Kalipada Das (AIR 1987 Cal 210).
8. On perusal of affidavit of valuation submitted by plaintiff,
the property valued through Commissioner / Architect Mr. Mehta. The
ready reckoner value of the suit property is at Rs.88,41,546/. The
market value is Rs.1,52,460/. It is submitted by ld. Advocate for
plaintiff that present valuation of suit property and by around 1.20 to
1.50 Crores. Considering all above facts in total, there cannot be the
valuation of Rs.3,00,000/ (three lacs) as suit property was valued in
the year 1991.
9. Considering the nature of the suit property, there is no any
option but to sell the property in public auction. Despite specific order
of this Court, no valuation of the suit property has been submitted by
defendant no.1 Shriram Pendse.
10. Court Receiver is appointed as officer to execute sale of suit
property under Order 21 Rule 65 of CPC. Court Receiver to submit
proposal of sale for confirmation to this Court after public auction.
Court Receiver to maintain account of expenses incur for sell.
Resultantly, motion is allowed in view of following terms :
ORDER
1. Notice of Motion No. 943/2019 is allowed.
2. Court Receiver is appointed to call public auction of suit
property i.e. Flat No.5, Hanuman Ramanand CHS, Vileparle
(East).
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N/m No. 943/19 in Suit No. 8589/99. 4 Order.
3. The base value of the suit property is fixed
Rs.1,20,00,000/ (One Crore Twenty Lacs).
4. Court Receiver to begin the auction to from
Rs.1,20,00,000/ onwards.
5. Plaintiff and defendant to incur expenses of public auction
as per their share.
6. Plaintiff to deposit initial amount of Rs.10,000/ (Ten
Thousand) with Court Receiver as expenses of public
auction.
7. Rs.10,000/ directly be deposited in the office of Court
Receiver.
8. N/m No. 943/19 is disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 16/10/2019. Mumbai.
1. Dictated on : 16/10/2019.
2. Transcribed on : 19/10/2019.
3. Signed on : 24/10/2019.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 943/19 in Suit No. 8589/99. 5 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
24/10/2019. 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 16/10/2019.
Judgment/Order signed by P.O. on 24/10/2019.
Judgment/Order uploaded on 24/10/2019.
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