Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 960 of 2019 in Suit no. 6724 of 2003
(H.Ct. No. 1667 of 2003
MHCC010025382019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
ORDER IN NOTICE OF MOTION NO.960 OF 2019
IN
SUIT NO.6724 of 2003
IN
(HIGH COURT SUIT NO. 1667 OF 2003)
Balasaheb S. Pawar ... Plaintiff
V/s
Shirish Wamanrao Pawar and Ors. …. Defendants.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 4th DAY OF NOVEMBER, 2023
-: Appearances: -
The learned Adv. Sachin Pawar h/f Adv. Chetan C. Agrawal for plaintiff.
Defendant no.1(b) and C.A of defendant no.1.
ORAL ORDER
Defendants have taken out present notice of motion for
appointing Court Receiver as the plaintiff failed to comply with the
order dated 27/07/2004, passed by the Hon’ble High Court in notice of
motion no. 1908 of 2004.
2. In short, it is contention of defendants that, the plaintiff has
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filed present suit against original deceased defendant no.1, who was the
real brother of plaintiff, for declaration to declare him owner of the suit
flat and for permanent injunction to restrain deceased defendant from
interfering with possession of the plaintiff over the suit flat. The plaintiff
has taken out Notice of motion no. 1908 of 2004, for seeking direction
against defendant no.2 society to hand over possession of the newly
constructed flat in place of the suit flat and also for restraining the
deceased defendant from dispossessing the plaintiff over the suit flat
without following due process of law. Defendants 1(a) and 1(d) are
legal heirs of the deceased defendant no.1. The Hon’ble High Court was
pleased to allow said notice of motion in terms of prayer clause (a) and
on the condition that the plaintiff do pay the deceased defendant no.1 a
sum of Rs.4,500/- in advance over every month. It is further ordered
that, in case of a single default on the part of the plaintiff, Court
Receiver, High Court, Bombay would stand appointed as Receiver of the
suit flat.
4. It is further submitted that on 16/06/2016, defendant no.1
Mr. Wamanrao S. Pawar had expired. Accordingly, defendants were
brought on record being legal heirs of the deceased defendant no.1.
However, the plaintiff has not paid a single pai in view of order dated
27/07/2004, for last 28 months. As such the plaintiff is willfully and
purposefully failed to follow the order of the Hon’ble High Court. Thus,
the Court Receiver may kindly be appointed. Hence the notice of
motion.
5. The plaintiff strongly opposed the notice of motion by filing
reply on affidavit. The plaintiff has not disputed about the order dated
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27/07/2004, passed by the Hon’ble High Court. However, it is
contention of the plaintiff that, after the death of defendant no.1 on
16/06/2016, defendants were brought on record and they were actively
participate in the above proceeding. Till the death of defendant no.1,
plaintiff is regularly paying the amount to deceased Wamanrao. But
after death of defendant no.1, it was not clarified as to whom the
plaintiff has to pay the monthly amount of Rs.4,500/- out of four legal
heirs of deceased. Even defendants no. 1(a) to 1(d) have not informed
as to whom the said amount has to be paid. Therefore, the plaintiff
could not pay the said amount. The plaintiff is ready and willing to
deposit the entire arrears and to pay regularly, the amount as per
direction of this Court. Thus, for the wrong committed by the
defendants, the plaintiff could not be blamed. Hence, the notice of
motion being devoid of substance and merits, may kindly be rejected.
6. Heard the learned advocate for the plaintiffs, and the
learned advocate for the defendants at length. Perused the record.
The defendant no.1(b) also filed written notes of argument
and relied on the authority reported in the case of Balwantbai Somabhai
Bhandari vs. Hiralal Somabhai Contractor (Deceased) Rep. By L.Rs. And
Ors. MANU/SC/0985/2023;
7. Following points arise for my determination to which I have
recorded my findings with reasons as follows: -
Sr. No. Points Determination
1. Whether defendants have made out
case for grant of relief as claimed in
Notice of motion?
Yes
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2. What order? As per final order.
REASONS
As to Points no.1: -
8. It is argued on behalf of defendants that, as the plaintiff
failed to comply with the order dated 27/07/2004, passed by the
Hon’ble High Court in notice of motion no. 1908 of 2004, hence it is
necessary to appoint the Court receiver for further action.
9. Per contra, the learned advocate for the plaintiff argued
that the plaintiff is complying with the order of the Hon’ble High Court
till the year 2016. However, after the death of defendant no.1 on
16/06/2016, defendant no.1(a) to 1(d) were brought on record. But for
want of clarification, as to whom the amount of Rs.4500/-has to be paid
and as defendants 1(a) to 1(d) failed to specify the same, hence, the
plaintiff could not comply with the order of the Hon’ble High Court.
Therefore, for the wrong committed by the defendant, the plaintiff
could not be punished. The plaintiff is ready to comply with the order
by making payment to defendants. He prayed for rejection of notice of
motion.
10. Herein it is to be seen that, the Hon’ble High Court
vide an
order dated 27/07/2004, passed in notice of motion no. 1908 of 2004
observed as follows:
“The notice of motion is made absolute in terms of
prayer clause (a) on condition that the plaintiff do pay to defendant
no.1 a sum of Rs.4,500/- (Rupees Fur Thousand Five Hundred) only in
advance every month commencing from August 2004 i.e., the amount
should be sent by Money Order or cheque to defendant no.1 on or
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before 10th August, 2004 and would continue to pay the same on or
before 10th of every subsequent month as use and occupation charges
and it is without prejudice to the rights and contentions of the parties
as regards their rival claim to the ownership of the suit flat. It is further
made clear that in case of a single default on the part of the plaintiff,
the Court Receiver, High Court, Bombay, would stand appointed as
Receiver of the suit flat vesting with all powers under Order XL rule 1 of
the C.P.C., and he shall take over possession of the suit flat from the
plaintiff and submit his report to this Court as that further orders in the
matter can be passed after hearing the parties.
11. It is to be noted that, it is contention of the plaintiff that he
was regularly paying Rs.4,500/- to defendant no.1 till his death on
16/06/2016. But thereafter defendant no.1(a) to 1(d) were brought on
record and for want of clarification as to whom the said amount is to be
paid, the plaintiff failed to pay the amount, in view of direction of the
Hon’ble High Court. So, the plaintiff himself admitted that, after the
death of defendant no.1, he has not paid the amount as per direction of
the Hon’ble High Court. Though the plaintiff is claiming that, for want
of clarification he could not paid the amount, but the plaintiff failed to
show as to what steps he has taken for making payment to defendants.
Nothing on record to substantiate that, the plaintiff has filed any
application seeking direction to make payment to defendants or show
his readiness and willingness to deposit the said amount in the Court as
per direction of the Hon’ble High Court. When the plaintiff is well
aware about the order dated 27/07/2004, passed by the Hon’ble High
Court and on the basis of said order, the plaintiff is enjoying possession
of suit premises, then the plaintiff ought to have deposit the same
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amount in the Court regularly, even after demise of defendant no.1.
Thus, apparently, it reveals that the plaintiff has committed default in
making payment of Rs.4,500/- to be paid regularly to defendants in
view of the direction issued by the Hon’ble High Court.
12. In the case of Balwantbai Somabhai Bhandari (supra), the
Hon’ble Supreme Court at para no.111 held that,
“apology is not just a
word, The court should not accept the apology when it appears that
saying sorry is nothing but a legal trick to wriggle out the responsibility.
A true apology must be a deep ethical act of introspection, self-
introspection, atonement and self-reform. In its absence, an apology
can be termed as farce.”
It is equally well-settled that apology tendered is not to be
accepted as a matter of course and the court is not bound to accept the
same.”
13. As discussed supra, the plaintiff is well aware of the order
dated 27/07/2004, passed by the Hon’ble High Court in NM no. 1908
of 2004 and thus, it is duty casted on the plaintiff to pay/deposit
regularly the amount of Rs.4500/- either to defendants or with the
Court. Even after taking out notice of motion in the year 2019, no
attempts made by the plaintiff to deposit the amount in the Court or for
seeking any direction in that regard. Thus, I do not find force in the
contention of the plaintiff. Therefore, this Court has to follow the
direction issued by the Hon’ble High Court passed in NM no.
1908/2004,
vide order dated 27/07/2004. Hence, my answer to point
no.1 is the affirmative.
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As to point no.2:
14. In view of my above discussion, I pass the following order:
ORDER
Notice of Motion 960/19 stands allowed and
made absolute in terms of prayer clause (a), in view of
order dated 27-07-2004, passed by the Hon’ble High Court
in NM No. 1908/2004.
Notice of Motion stands disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court, Gr. Mumbai
Date:.04.11.2023 (C.R. No.1)
Dictated on : 04.11.2023
Transcribed on : 06. & 07.11.2023
Checked & signed on : 07.11.2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 04.11.2023 NAME OF STENOGRAPHER(G-I)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court
room no.)
HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of
JUDGEMENT/ORDER
04.11.2023
JUDGMENT/ORDER signed by
P.O. on
07.11.2023
JUDGEMENT/ORDER uploaded
on
07.11.2023
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