Final Order 2

Order Details: Other
Pdf Text: IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER BELOW EXH.12
IN
SUMMARY SUIT NO.1194 OF 2015
GTC Foods Pvt. Ltd.
A Company registered under the
Companies Act, 1956, and having its
Registered office at
4083, Naya Bazar, Delhi- 110 006 (India )
...Applicant
(original
Defendant)
Verses
Yashika Agri Trade
A Proprietary Firm
and having its office at
Devdarshan Building, Shop no.05,
Mahim, Mumbai- 400 016.
..Respondent/
Origi. Plaintiff
CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 3.1.2022
Adv. Anand Mishra for the plaintiff.
Adv. Pallavi Zavari for the defendant.
ORAL ORDER
1. This is an application moved by the original plaintiff for
allowing them to withdraw 50% decreetal amount deposited by the
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2 O.B.Exh.12
in Suit No.1194 of 2015
defendant in the Registry of this City Civil Court, Mumbai.
2. Application is replied by the defendant.
3. It is strongly opposed by them.
4. Heard respective advocates for the plaintiff and defendant
at length. Perused record.
5. It reveals from the contentions made by both the parties
that pursuant to the order of this court dtd. 21.8.2019, the defendant
has deposited 50% of the decreetal amount in the court i.e amount of
Rs.3,18,815/- vide Demand Draft dtd. 14.6.2019 as a condition
precedent to get the stay order on the execution proceeding. The
plaintiff wants to withdraw the said amount on the ground that the
plaintiff is entitled to get the said amount as it is deposited for them.
Further, it is stated that no harm or prejudice will be caused to the
defendant if plaintiff is allowed to withdraw the said amount.
6. According to the defendant, the amount is deposited only
as a condition precedent to comply the court order. The defendant have
raised several triable issues. They are having good case on merits. They
have shown their bonafide by depositing 50% of the decreetal amount
as per the directions given by this court for contesting the suit. If the
plaintiff is allowed to withdraw the amount, he will then take undue
advantage of it and will make unlawful gain from the said money.
Hence, the plaintiff shall not be allowed to withdraw the said amount.
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in Suit No.1194 of 2015
7. Upon consideration of the rival contentions it appears that
the defendant has deposited 50% of decreetal amount in pursuant to
the orders passed by this court as a condition precedent for the purpose
of contesting the suit . I have gone through the order passed by my Ld.
Predecessor, it reveals that the defendant was directed to deposit 50%
of the decreetal amount for the purpose of staying execution
proceedings. There is no verdict in the order that plaintiff is entitled for
said amount or is at liberty to withdraw the same during pendency of
the notice of motion or the suit if allowed to be reopened. As such, I
hold that the plaintiff cannot withdraw the amount as of right.
Secondly, if the plaintiff is allowed to withdraw the said amount, it will
be definitely used by him and defendant if succeeds in disproving the
suit will get difficulty in recovering the said amount from the plaintiff.
The complication may get increase if the plaintiff is allowed to
withdraw the part decreetal amount at this stage. The notice of motion
moved by the defendant vide notice of motion No. 992/2019 is allowed
today itself subject to payment of costs. If, suit is reopened, the plaintiff
and defendant will get equal opportunity to contest the suit. In such
circumstances it is not desirable to allow the plaintiff to withdraw the
amount deposited by the defendant. Above all, if plaintiff succeeds in
the suit, he will be entitled to receive the entire decreetal amount as per
court orders. Therefore, I hold that it will be in the interest of justice to
keep said amount in the account of court till final decision of the suit if
reopened upon payment of costs by the defendant.
Hence, in view of the aforesaid discussion, I proceed to pass
following order:
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ORDER
Application (Exh.12) stands rejected.
Date: 3.1.2022
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on : 3.1.2022
Typed on : 4.1.2022
Signed on :
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in Suit No.1194 of 2015
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
6.1.2022 05.10 p.m. ( K.M.RANA)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. A.H.KASHIKAR (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
3.1.2022
JUDGMENT/ORDER signed by
P.O.on
6.1.2022
JUDGMENT/ORDER uploaded on 6.1.2022
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