Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.698-18 in L.C.SUIT no.402-18
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO.698 OF 2018
(CNR no. MHCC010025412018)
IN
L.C. SUIT NO. 402 OF 2018
(CNR no. MHCC010014202018)
M/s. Venus Rubber Works ]..Plaintiff
Versus
The Brihan Mumbai Municipal Corporation
of Gr. Mumbai & Anr. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 03rd September, 2018.
Mr. B. V. Holambe Patil, advocate for plaintiff.
Mr. Patil, advocate for defendant no.1
Defendant no.2 in person
ORDER
1. The plaintiff has taken out this motion seeking temporary
injunction for restraining the defendant from obstructing, interfering
with possession or taking away things, articles of the plaintiff from the
shop premises pursuant to cancellation of trade license by order dated
11.10.2016 and further for interim mandatory injunction for directing
the defendant no. 1 not to withhold renewal of its trade license.
2. The learned advocate for the plaintiff submitted that the
plaintiff firm does the business of rubber products from the suit shop
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under the license issued by the defendant Corporation since 1969. He
also submitted that earlier after the death of one of the partners, the
defendant no. 1 revoked the trade license on 10.04.2014 and
subsequently, the order of revocation was canceled by renewing the
license on 25.07.2016. According to him again on 20.10.2016 the
defendant Corporation issued a notice calling upon the plaintiff to show
cause as to why the trade license should not be canceled on the ground
of failure of plaintiff to submit extract of registration of partnership
firm. Thereafter, by order dated 10.11.2016 the license was canceled.
The plaintiff thereafter, submitted the extract of registration of
partnership firm and requested the defendant Corporation to cancel the
revocation and renew the license, however, by letter dated 26.10.2017
the defendant Corporation directed to the plaintiff to submit “No
Objection Certificate” issued by the Small Cause Court, Mumbai. Thus,
according to him the defendant has initiated illegal action at the
instance of defendant no. 2 and is avoiding to renew the license, by
calling unwarranted documents.
3. On the other hand the learned advocate for defendant
Corporation submitted that the plaintiff has not submitted proper
documents and therefore, license was revoked twice. Thus, defendant
by adopting due process of law has revoked the license. The plaintiff is
in illegal possession of the suit shop and storing inflammable and
hazardous articles in the shop and therefore, the license was revoked.
4. The defendant no. 2 in person submitted that his grand
father was tenant in respect of room no. 4, building no. 43 which is
owned by Parekh Estates Private Ltd. His grand father divided the said
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room and given the front portion to the plaintiff firm by executing an
agreement for leave and license. However, after expiry of that
agreement the partners of plaintiff firm did not vacate the said shop.
They are illegally occupying the front portion which is subsequently
numbered as shop no. 2. According to him the partners of the plaintiff
firm are changed and necessary entries are not taken in the record of
the Registrar of firms. Thus, he prayed for dismissal of the motion.
5. On the premise of these submissions and the affidavits filed
by the respective parties, it is necessary to look into the documents
placed on record. It is prima facie undisputed that Shree Parekh Estates
Private Ltd. filed the suit for eviction against grand father of the
defendant no. 2 and the plaintiff firm. The said suit was came to be
dismissed. It was not held that defendant no. 2 is an unlawful sub
tenants. An appeal preferred against the same was also came to be
dismissed. At present R.A.D. suit no. 1108 of 2014 filed by the plaintiff
is pending, in which the possession of the plaintiff of the shop no. 2 is
protected by an order of interim injunction dated 16.07.2015 passed by
the Small Cause Court, till the disposal of that suit.
6. It is prima facie undisputed that a trade license was issued
in the name of M/s. Venus Rubber Works on 05.01.1970 and the same
was continued from time to time up to 31.12.2014. It is also prima facie
undisputed that the trade license of the plaintiff was canceled at the
complaint of defendant no. 2 to the effect that the plaintiff was storing
highly inflammable, polluting and hazardous goods, and the license was
restored again.
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7. The copy of notice dated 20.10.2016 issued by the
defendant no. 1 to the plaintiff prima facie shows that the plaintiff was
called upon to submit the latest extract duly certified by the Registrar of
Firms with a caution that if plaintiff fails to submit the same the trade
license would be canceled. The plaintiff replied the said notice that the
process of registration was in progress and requested the defendant no.
1 to grant some time.
8. The copy of order dated 10.11.2016 prima facie shows that
as the plaintiff failed to submit the extract of registration of partnership
firm its trade license was canceled. By letter dated 23.12.2016 the
plaintiff was informed by the defendant no. 1 that its proposal for
recording / deleting the names of new partners and retiring partners
would be filed if plaintiff fails to submit the extract of registration of
partnership firm. The copy of letter dated 22.12.2016 prima facie shows
that the plaintiff filed the extract of registered partnership firm to the
defendant no. 1.
9. The copy of letter dated 26.10.2017 prima facie shows that
the defendant no. 1 again called upon the plaintiff to file “No Objection
Certificate” issued by the Small Cause Court within the period of 15
days so as to record the names of partners and restore the trade license,
else it would be filed.
10. It appears from various documents and copies of orders
placed on record by the plaintiff and defendant no. 2 that their relations
are much strained and tussle for getting / maintaining possession of the
said shop is going on by lodging every possible grievance with
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Government Authorities and moving various applications, suits
proceedings, Criminal complaints in various Courts. Be that as it may.
The defendant Corporation has also initiated criminal action against the
plaintiff under Sections 394(1)(b), 471 of the Mumbai Municipal
Corporation Act for carrying out business without license and it is
pending before the concerned Metropolitan Magistrate Court.
11. While issuing show cause notice dated 20.10.2016 the
defendant no. 1 only required the plaintiff to submit extract of
registration of partnership firms. When it was submitted, the defendant
Corporation by letter dated 26.10.2017 directed the plaintiff to submit
“No Objection Certificate” issued by the Small Cause Court. However,
there is nothing placed on record by defendant no. 1 under what
provision of law its Officers are compelling the plaintiff to submit such
certificate and under what provision of law such certificates are issued
by the Small Cause Court. Had it been the case of defendant no. 1 that
the plaintiff is dealing in / storing highly inflammable, polluting and
hazardous rubber products, it was not necessary for the defendant no. 1
to pass an order on 25.07.2016 to cancel revocation of the license and
further renew the same till 30.06.2017. In latest show cause notice the
said ground is not raised by the defendant Corporation. The only
ground raised about filing of extract of registration of partnership firm
in show cause notice dated 20.10.2016 has been complied with the
plaintiff.
12. It appears prima facie that the Officers of the defendant
Corporation, on flimsy and fancy grounds, are harassing the plaintiff at
the instance of some persons interested to dispossess the plaintiff from
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the said shop, and that too, when a full fledged suit about declaration of
the status of the plaintiff is pending before the Small Cause Court. The
defendant has not set out any other ground for revocation of the trade
license and for not restoring the same. Therefore, intervention of this
Court appears necessary. If interim protection is not granted, the
defendants would dispossess the plaintiff or stop its business. The
plaintiff will suffer an irreparable loss which may not be compensated
in terms of costs. Therefore, the notice of motion deserves to be allowed
as follows:
ORDER
1. The Notice of Motion no. 698 of 2018 is made absolute by
restraining the defendants from interfering with or disturbing the
permitted trade activity in the suit shop till the decision of the
suit.
2. The defendant no. 1 is directed to decide the issue relating to
cancellation of order of revocation and renewal of trade license of
the plaintiff on or before 03.10.2018, by adopting due process of
law.
3. Liberty to mention the matter after passing necessary orders by
the defendant Corporation.
4. Parties to bear their own costs of the motion.
5. An ordinary copy of this order duly authenticated by the
Sheristedar of this Court be supplied to respective parties.
sd/
(M. S. Deshpande)
Ad hoc Judge,
Date : 03.09.2018 City Civil Court, Mumbai.
Directly typed on dias computer : 03.09.2018
Checked by HHJ on : 04.09.2018
Signed by HHJ on : 04.09.2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 05.09.2018 at 12.10 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
03/09/2018
JUDGMENT/ORDER signed by
P.O. on
04/09/2018
JUDGMENT/ORDER uploaded
on
05/09/2018
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