Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 965/19 (Suit 2434/17)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.965/2019
(CNR No.MHCC010025482019)
IN
S.C. SUIT NO.2434/2017
1. Mrs. Deepa Suresh Savekar
2. Mrs. Vandana Sanket Parab
3. Master Kritik Sanket Parab
(through his mother and natural
guardian Mrs. Vandana Sanket Parab) ..Plaintiffs
V/s.
Ms. Manisha Shankar Kokam ..Defendant
Appearance:
Adv. Mr. Madkaikar for plaintiffs.
Adv. Mr. Sarambalkar for defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 10.1.2020.
ORAL ORDER
1. Perused Notice of Motion (N/M) taken out by plaintiffs
supported by affidavit of plaintiff no.1 Deepa Suresh Savekar and
documents filed on record, along with N/M vide Exhs.A to G colly.
2. The defendant has not filed reply to the N/M inspite giving
chances and therefore, as per order dated 30.7.2019, the N/M has
proceeded without reply.
3. It also appears from the record that, in the meanwhile, as
parties to the suit are relatives and it is a family dispute, there was
-- 1 of 9 --
2 N/M 965/19 (Suit 2434/17)
possibility of amicable settlement and compromise between the parties.
Therefore, with the assistance of the Ld. Counsels for both sides, this
court had made efforts to sort out the dispute between the parties
amicably but the efforts were not successful. Therefore, present N/M
was taken up for hearing and passing necessary orders.
4. I have heard Ld Counsel for the plaintiffs and Ld. Counsel
for the defendant on the notice of motion, which is strongly opposed by
the defendant.
5. By present N/M, the plaintiffs are seeking various reliefs
against the defendant which include the order of temporary injunction
directing the defendant to hand over set of keys of the lock of the
entrance door of the suit premises i.e. Flat No.A1, Ground Floor,
Konkan CHS Ltd., Konkan Nagar, Plot No.123, Lt. Dilip Gupte Road,
Mahim, Mumbai 400 016. The plaintiff has further prayed that, during
pendency of the suit, a Court Receiver, High Court, Bombay be
appointed to take possession of the suit premises and the defendant
may be continued as an agent of the Court Receiver on payment of
security deposit and royalty and the royalty amount be kept in the
deposit/ invested in the Fixed Deposit in the court. Alternatively, the
plaintiff has prayed for appointment of Court Receiver, High Court,
Bombay with direction to take possession of the suit premises and give
the same on leave and license basis by inviting bidding in public auction
from interested persons and the compensation amount be kept in the
deposit of the court.
6. Ld. Counsel for the plaintiffs further submitted that, the
defendant has been very adamant inspite of interim order passed by this
-- 2 of 9 --
3 N/M 965/19 (Suit 2434/17)
Court in N/M No.3883/2017 dated 10.10.2017. By above said interim
order, the Court had directed the defendant not to create third party
interest in the suit property. Thereafter, on 12.12.2017, the defendant
appeared in the suit and engaged an advocate and filed WS as well as
reply to the pending N/M on 16.3.2018. The plaintiffs have filed
affidavit in rejoinder to the WS/ reply on 5.7.2018. In the meanwhile,
considering the nature of family dispute between the parties, the matter
was kept before Lokadalat on 14.7.2018, but the defendant did not
agree for the settlement before the Lokadalat.
7. It is further submitted on behalf of the plaintiff that, after
hearing the parties on merit on N/M No.3883/17, on 13.10.2017, Ld
Counsel for the defendant, on instructions from the defendant, had
stated in presence of the defendant that, she will not obstruct entry of
the plaintiffs in the suit premises. Accordingly, the statement of the
advocate of the defendant was recorded and interim order was passed
on 13.8.2018, which is reproduced in para 4 of the Motion. Inspite of
above order, the defendant has been opposing and resisting the claim of
the plaintiff and had obstructed the plaintiff from entering into the suit
premises on 6.9.2018, 11.9.2018, 19.9.2018 and 25.9.2018. Again the
plaintiff had visited the suit premises on 28.9.2018 and 5.10.2018, but
the obstructions continued and the plaintiffs have reported the matter
to Mahim police station. The resistance of the defendant continued even
thereafter and the plaintiff had again made an attempt by visiting the
suit premises on 15.11.2018 and 22.1.2019 when the door of the suit
premises was again found locked with new lock put up by the defendant
on 15.11.2018 and on the next occasion, there was no lock on the door
but it was locked from inside with a hook(kadi). In the meanwhile,
there had been communication through notices from the advocates
-- 3 of 9 --
4 N/M 965/19 (Suit 2434/17)
regarding noncompliance of the orders of the court and resistance put
up by the defendant to the entry of the plaintiffs in the suit premises.
8. Ld. Counsel for the plaintiff further submitted that in the
meanwhile, the defendant has taken out a N/M No.4076/2018 against
the plaintiff praying for various reliefs, which are not maintainable in
law. Considering noncompliance of the orders of this court and
disobedience of the orders as well as noncompliance of the statement
made by the Counsel for the defendant before the court, the plaintiffs
have taken out separate Notice of Motion bearing No.966/2019 against
the defendant for taking necessary action for contempt of court. Ld.
Counsel for the plaintiff further submitted that, even during pendency
of the suit and before hearing both the Counsels for the parties on merit
on the present Motion, with intervention of the court, the defendant
had provided separate set of keys of the door of the suit premises and
efforts were made to see that both the plaintiff and the defendant can
possess and enjoy the suit premises by making separation/ division, but
on some or other count, the defendant is raising objection on trivial
issues and is putting certain conditions which are not practicable and
feasible one. Under the above circumstances, it has become difficult for
the plaintiffs to enjoy fruits of the interim orders passed by this court.
9. Ld. Counsel for the plaintiffs further submitted that, the
defendant is gainfully employed and is residing in her own matrimonial
home at Kalanagar, Bandra(E) and therefore, it will be in the interest of
justice to appoint a Court Receiver, High Court, Bombay to take
possession of the suit premises and appoint the defendant as Agent of
the Court Receiver on payment of security deposit and royalty during
pendency of the suit or in the alternative, possession of the suit
-- 4 of 9 --
5 N/M 965/19 (Suit 2434/17)
premises may be handed over to the Court Receiver, High Court,
Bombay and directions may be given to the Court Receiver to hold a
public auction and by inviting bid/offer from interested persons to use
the suit premises on leave and license basis to highest bidder and the
license fees/ compensation amount may be deposited in the court,
during pendency of the suit.
10. Ld. Counsel for the defendant has strongly opposed the
N/M and submitted that, there is no substance in the grievance made by
the plaintiffs in the Motion. On the contrary, the defendant has been
cooperating with the plaintiffs and complying orders passed by this
Court and has shown willingness to allow the plaintiff to use and
occupy the suit premises by providing separate key of the lock of the
entrance door. The only difficulty is that the above arrangement has to
be postponed till the month of March, 2020 as the Board examination
of son of defendant is approaching and therefore, the defendant needs
premises for his study purpose and that she wants a peaceful
atmosphere for the study of her son. Ld. Counsel for the defendant drew
attention of the court to the Roznama dated 20.8.2019, wherein the
defendant has shown readiness and willingness to hand over key to the
plaintiff and also for giving access to the suit premises and accordingly,
key was handed over for preparing duplicate key and original was
returned to the defendant thereafter. Thereafter the matter was under
consideration for settlement between the parties as per statements
made by Counsel for the defendant vide Roznama of the court dated
16.9.2019, 5.10.2019, 15.11.2019. But for some personal difficulties of
the defendant settlement could not take place. Under the above
circumstances, he submitted that, the N/M is devoid of any substance
and it is liable to be dismissed with costs.
-- 5 of 9 --
6 N/M 965/19 (Suit 2434/17)
11. In his reply submission, Ld. Counsel for the plaintiff has
placed reliance on the authority of Hon'ble Bombay High Court in the
case of Mulji Umershi Shah and ors. V/s. Paradisia Builders Pvt. Ltd.
& Ors. (1997(4) Bom. C.R. 97), wherein Hon'ble Bombay High Court
has considered the provisions of Sec.94 r/w. Sec.151 and Order 40 Rule
1 of CPC and Sec.37 of Specific Relief Act and held that, appointment of
a Court Receiver by trial court cannot be faulted where dispute was
pending between the developer and Power of Attorney holder of the
owner on the ground that the plaintiff was holding 25% of share in the
possession of the property. It was also held that, the court has power to
appoint a Court Receiver even if plaintiff was found in possession of suit
premises on the date of filing of suit. The court is empowered to appoint
Court Receiver to meet ends of justice and if it is found convenient,
even suo moto order can be passed by the court.
12. Considering the ratio of the above authority and in view of
submissions made by Ld. Counsels for both sides, I am of the opinion
that, though the dispute in the present suit is between the parties who
are close relatives and the dispute is a family dispute between sisters,
inspite of efforts made by Ld Counsels for both sides for amicable
settlement between the parties, it has not been fruitful and though the
settlement has partly taken place its implementation appears to be
difficult because of the approach adopted by the defendant. It is an
admitted fact on record that, the defendant is residing at the address
mentioned in the plaint i.e. Kalanagar, Bandra(E), Mumbai. I am of the
opinion that, this is a fit case for appointment of Court Receiver, High
Court, Bombay, during pendency of suit, considering the fact that both
the plaintiffs and defendant are not residing in the suit premises at
-- 6 of 9 --
7 N/M 965/19 (Suit 2434/17)
present, it is found convenient and in the interest of justice to hand over
possession of the suit premises to the Court Receiver during pendency
of the suit.
13. Prayer clause(a) of the present Notice of Motion the said
relief does not survive, as a duplicate key of the lock of the door of
entrance of the suit premises is already given to the plaintiffs. Prayer
clauses(b) and (c) can be allowed in the alternative, as prayed. Hence, I
proceed to pass following order:
ORDER
Notice of Motion No. 965/2019 is hereby partly allowed in
following terms:
1. Prayer clause (a) of the Notice of Motion does not survive as
the relief has become infructuous in view of the fact that the
defendant has handed over a duplicate key of the lock of the
door at the entrance of the suit premises to the plaintiffs, as
per order of this court dated 13.08.2018 and 20.08.2019 the
said arrangement has been continued till today. The said
arrangement shall further continue until present order is
given effect.
2. Prayer clauses (b) and (c) are allowed. The Court Receiver,
High Court, Bombay is hereby appointed with all the powers
under the provisions of Order 40 Rule 1 of CPC with
direction to take possession of the suit premises i.e. Flat
No.A1, Ground Floor, Konkan CHS Ltd., Konkan Nagar, Plot
No.123, Lt. Dilip Gupte Road, Mahim, Mumbai 400 016.
3. The Court Receiver is directed to take possession of the suit
-- 7 of 9 --
8 N/M 965/19 (Suit 2434/17)
premises from the defendant notionally during pendency of
the suit and he is further directed to appoint the defendant as
his Agent on payment of security deposit of Rs 2,00,000/
and royalty of Rs. 50,000/ p.m. from the date of the order
till decision in the suit.
4. The security deposit and royalty amount shall be kept in the
deposit in the court/the office of Court Receiver, which shall
be invested in Fixed Deposit in any Nationalized Bank till
final decision of the suit.
5. Alternatively, if the defendant is unable to comply with the
above directions within a period of four weeks then, the
Court Receiver, High Court, Bombay shall take possession of
the suit premises i.e. Flat No.A1, Ground Floor, Konkan CHS
Ltd., Konkan Nagar, Plot No.123, Lt. Dilip Gupte Road,
Mahim, Mumbai 400 016 and call for a public auction/ bid
for giving suit premises on leave and license basis to the
interested persons, during pendency of the suit, and the
license fees/ amount of compensation shall be kept in the
deposit in the court and same can be kept in a Fixed Deposit
(FD) during pendency of the suit.
6. It is made clear that both the parties shall be allowed to
participate in the public auction/bid conducted by the Court
Receiver for giving the suit premises on leave and license
basis.
7. The Court Receiver, High Court, Bombay may be
communicated this order for information and necessary
compliance on his part.
-- 8 of 9 --
9 N/M 965/19 (Suit 2434/17)
Notice of Motion stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 10.1.2020 Gr. Bombay (C.R. 03)
Dictated on : 10.1.2020
Transcribed on : 10.1.2020
Draft given to HHJ on 10.1.2020
Signed by HHJ on : 13.1.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 14.1.2020
TIME: 11.03 am (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 10.1.2020
Judgment/ order signed by P.O on 13.1.2020
Judgment/ order uploaded on 14.1.2020
-- 9 of 9 --