Final Order 1

Order Details: Notice of Motion
Pdf Text: ... 1 … Order in NM No.1013 of 2019
MHCC010026322019 Presented on : 07.03.2019
Registered on : 07.03.2019
Decided on : 18.02.2025
Duration : 05 11 11
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY, AT BOMBAY
NOTICE OF MOTION NO. 1013 OF 2019
IN
SUIT NO. 3337 OF 2018
(CNR NO.MHCC010026322019)
1
2
3
Anupam Raghunath Mayekar
R/at : Building No.3/305, Aroma Society,
New Link Road, Opp. Oshiwara Police
Station, Andheri (W),
Mumbai 400 053.
Yadnesh Raghunath Mayekar
R/at : 39, First floor, Tadwadi,
Chirabazar, Mumbai 400 002.
Meenal Vishwas Tawde
R/at : Gandiraj Society, B/17, 2nd Floor,
Mithagar Road, Next to V.P.M. School,
Mulund (E), Mumbai 400 081. …. Plaintiffs
Versus
1
2
3
Prasad Raghunath Mayekar
R/at : Talvali, Sapoli Gaon, Taluka Pen,
District Raigad
Sunita Arun Waingankar
R/at : 5, Shanta House, D’Cunha Chawl,
Mulgaon, Vasai, District Thane 401201
Anjali Raghunath Mayekar
R/at : 36/H, Ambika Nagar,
Golanji Hil, G. D. Ambedkar Marg,
Parel Village, Mumbai 400 012. …. Defendants
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CORAM : HIS HONOUR THE PRINCIPAL JUDGE,
SHRI A.SUBRAMANIAM
C.R.NO..
: 19
DATE : 18th DAY OF FEBRUARY, 2025
Appearances :-
Ld. Adv. Kunal Rane for plaintiffs.
Ld. Adv. Zubin Dalal for defendants present.
ORAL ORDER
1. By present Notice of Motion, plaintiff prays for injunction from
creating third party rights in title and interest in respect of said
hotel business namely Shop No.5 and 6 of Ground floor,
injunction from obstructing or preventing ingress egress of
plaintiff in suit property, injunction against creating third party
rights in the property and lastly to direct the defendants to
deposit plaintiff’s share in the income generated in said hotel
business.
2. The plaintiff submits that plaintiffs No.1, 2 and 3 are real
brothers and sisters and defendant No.2 is step sister. Defendants
No.1 is real brother and defendant No.3 is mother of said
plaintiffs and other defendants. It is further alleged that
grandfather Late Pandurang Gopal Mayekar was tenant of shop
No.5 and 6 and that he started hotel business by name ‘Darya
Vihar Hotel’ and after death of grandfather, father of plaintiff
succeeded to said property. Plaintiff No.1 and 2 and defendant
No.1 were helping their father in business. Plaintiff No.1 and
defendant No.1 worked full time in said business. Plaintiff No.2
helped the father in business after his working hours. Permit
room was started and new business under the name and style
“London Pub” was started in said business. the Hotel business
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declined and to modernize it, loan of Rs.15 lakhs was taken. Late
father Ragunath Mayekar died on 08.04.2015. He could not
repay entire loan amount in his lifetime and bank sealed the
property and prepared inventory in respect of the articles. After
repayment of loan, recovery officer released the suit property in
the year 2007. Business could not be carried out because of
attachment and defendant No.1 again started hotel business in
said property. Plaintiffs showed their interest to jointly run the
hotel business but defendant No.1 started to quarrel. The Shop
and Establishment License was in name of plaintiff No.1 with
father of plaintiff. In the year 2014, Shop and Establishment
License was transferred in his own name in the year 2011 and
complaint in that regard was lodged. False and fabricated will
dated 04.05.2004 of father Raghunath Mayekar was prepared
and Testamentary Petition is pending before the Hon’ble High
Court. Tenanted premises cannot be bequeath to any person and
hence transfer is bad in law. Defendant No.1 has given the suit
property and business on conducting basis to Tushar Joshi and
Hemant Joshi and entered into partnership with them and getting
Rs.2,50,000/- per month and carrying out business in the name
and style of ‘Amar Fast food and Juice Centre’ and no amount is
paid to plaintiff. Plaintiff has tried to enter the suit property and
conduct the business jointly. The Testamentary Petition cannot
grant interim reliefs considering legal provisions and hence it is
prayed in the suit that plaintiffs possess equal rights in the hotel
business along with suit property and consequential injunction
and orders in that regard.
3. Said Notice of Motion is resisted by defendant No.1 by
contending that material facts have been suppressed. It is further
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pointed out that defendant No.1 is in exclusive use, occupation
and possession of suit premises and conducting business from suit
premises to exclusion of plaintiffs for last several years. Plaintiffs
have no right to interfere in his business. After demise of father,
mother took charge of the house and business but plaintiffs
distanced from the mother. The reliefs claimed are barred by
limitation. Grandfather acquired tenancy rights and said rights
were succeeded by father and even today, the receipts stand in
the name of the father and after father the mother succeeded to
the said tenancy rights. It was agreed and an affidavit was also
executed to transfer rent receipts in the name of mother. The
name of defendant No.1 was mentioned in the business because
of ill health of the father and to aid the conduct of business and
technicalities therein. In the year 1993-1994, plaintiff No.1 and
defendant No.1 started new business by name ‘London Pub’ and
plaintiff No.2 was not related to it. The father died on 08.04.2005
and not on 08.04.2015. The bank took over physical possession of
suit property and plaintiffs did not come forward to release the
property. There was family arrangement wherein it was agreed
that if defendant No.1 agreed to clear the bank loan, the plaintiff
and other defendants will not claim any rights in the suit
property. Accordingly, no objection was given for transfer of rent
receipts in favour of defendant No.3. On the basis of this
arrangement defendant No.1 alone cleared all the dues. Bank
Clearance certificate was obtained on 18.04.2007. Defendant
No.1 started new business. After death of the father, defendant
No.3 acquired rights. Defendant No.3 executed Power of Attorney
in favour of defendant No.1. The partnership deed dated
15.06.2012 is valid only for a period fo three years and it was an
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interim arrangement to cover amount spent for repayment of
bank loan and business is taken over by defendant No.1 and he is
solely running said business. Plaintiff No.1 and 2 are malafide
trying to enter premises. The Testamentary Court is entitled to
pass orders to protect the property. Considering all these facts,
entire claim of plaintiffs is bad in law and required to be rejected.
4. Plaintiff filed rejoinder by denying the allegations. It is contended
that even today business is carried by Tushar Joshi and Hemant
Joshi and same G.S.T Number exists.
5. Perused the Notice of Motion, reply and rejoinder. Heard both the
sides. Considered the submissions advanced. Following points
arise for my consideration and I answer the same as under for the
reasons stated hereinafter;
Sr.
No.
POINTS FINDINGS
1. Whether prima-facie case is made out
by the plaintiffs ?
:: In the negative.
2. Whether balance of convenience lies
in favour of the plaintiffs ?
:: In the negative.
3. Whether irreparable loss will be
suffered by the plaintiffs if the prayers
in Notice of Motion are denied?
:: In the negative.
4. What order ? :: As per final order.
REASONS
As to Point No. 1 :
6. Before going into contentious issue, it is not disputed that earlier
tenancy of said suit premises was in favour of Grandfather Late
Pandurang Mayekar and thereafter it came to father Late
Raghunath Mayekar. It is part of record that Late Raghunath died
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in the year 2005. It is also part of record that loan was taken and
property attached for default of payment of loan and
subsequently said attachment was released by repayment of the
loan. The actual dispute of business starts after said attachment is
released and death of Late Raghunath Mayekar.
7. The aspect as to whether Late Raghunath was conducting
business with help of plaintiff and defendant is not issue in
question and is admitted fact. It is seen that some of the licenses
stand in name of plaintiff No.1 at that time. Some news articles
also corroborate said circumstances of all the children being
together for said business but they pertain to year 1994. The
death certificate of Late Raghunath shows his death to be on
21.04.2005. (in plaint it is incorrectly mentioned as 2015). Entire
issue started thereafter.
8. The complaint dated 28.06.2014 by Anupam Mayekar is of
importance being first in time . He contends that father expired in
the year 2005. In the year 2004, plaintiff suffered accident and
has not visited hotel for many years. Other plaintiff Yadnesh also
stopped going to hotel and Prasad i.e. defendant No.1 is alone
conducting hotel business. Since one and half years ago, Prasad,
Tushar and Hemant are conducting business of ‘Amar Fast food
and Juice Centre’. Thus, suit presently filed in the year 2018
shows that from at-least 2007, the defendant are alone
conducting business, moreso defendant No.1 and that since 2013,
at-least ‘Amar Fast Food and Juice Centre’ of defendant No.1 and
the Joshi’s are in existence. The Testamentary Petition
proceedings and present reliefs does not come into way
considering Judgment of Ramchandra Hande V/s Vitthalrao
HandeAIR 2011 BOMBAY 136 wherein Hon’ble High Court of
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Bombay considered provisions of Section 269 of Indian
Succession Act, which excludes Hindus, Mohammedians,
Buddhists, Sikhs or Jainas from invoking the protection
provisions of said property.
9. I will not go into the will because dispute is pending before
Testamentary Court. Apparently, as per complaint itself, licenses
were transferred in the year 2011. Surprisingly, complaints are
lodged in the year 2014 i.e. after Testamentary Petition. The
partnership firm is created in the year 2012 of the Joshi’s and the
defendants. Reliefs are being sought with regard to partnership
firm and they are not made parties to the present suit.
10. Lastly but not the least, if one considers basic document relied
by plaintiff which is license agreement of 2011, it is of
Readymade Garments and General Stores. How and when this
establishment came into existence is not known. Thus, if one
considers this aspect, it is doubtful with regard to entire structure
about the suit. So much so that it relates to hotel and pub
business and licenses relates to Readymade Garments and
General Stores.
11. As per the plaint itself and as stated in compliant, plaintiff was
not in occupation of premises in the year 2012. In such
circumstances, one really doubts the veracity of the claim of
plaintiff in this notice of Motion. On the basis of the contention in
plaint itself, property was allegedly released in the year 2007.
There is nothing on record of contribution to the bank by plaintiff
as such. This is an issue which really has to be considered.
12. Further, the date of death of father mentioned as 2015 does not
appear to be typographical mistake as it is seen that date of 2005
would imply that the attachment was lifted after death of the
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father. Whereas, if it is 2015, it would be in his lifetime. Even if
one considers this to be genuine mistake by showing the death to
be of the year 2005, it is apparent that late father was not alive in
2007 when the property got free from attachment. It would be
part of trial to see who did it and how as both of them are
claiming the same.
13. Suffice to say, since 2007, plaintiffs have failed to established
that they are anywhere attached to business or property. Since
2007, plaintiffs have no knowledge of businesses and various
transactions having conducting in said property. There is
Testamentary Petition pending in which rights are claimed by
defendants alone. There is alleged affidavit of 2006 wherein
plaintiff is alleged to have given no objection for transfer of
tenancy in favour of his mother. All these factors would be part of
trial.
14. Thus, if one considers all these facts and circumstances, this
would a case where plaintiff has failed to establish prima-facie
case of being partner or conductor of business or joint occupant
of the premises at the time of filing of suit or in near vicinity of
filing of suit. He is seen to be not conducting business in premises
even at the time of death of father i.e. in the year 2005. This
apparent by complaint lodged by plaintiff himself. In such
circumstances, plaintiff has to show that he was in occupation or
at-least exercising his rights in said property for reasonable
period of time. It cannot happen that on one fine morning
plaintiff claims rights and tries to enter property and business run
by third party. In such circumstances, plaintiff has failed to make
out any prima-facie case. Hence, I answer Point No.1 in the
negative.
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As to Points No.2 and 3 :
15. On the facts discussed above, it is seen that plaintiff never
carried on business and has not entered into premises prima-facie
since 2004-2005 and certainly not since 2007. It is defendants
No.1 and 3 who are conducting business through themselves or in
partnership with another person since then. Considering these
aspects, for stranger to enter into business premises would be
causing damage to business and also interference into some other
party’s rights. Thus, there is no balance of convenience in favour
of plaintiff.
16. So also as it relates to business premises, the losses if any, can be
quantified in terms of money so much so that even in interim
relief, plaintiff claims his share of amount. Thus, no irreparable
loss would be caused to plaintiff. Hence, I answer Points No.2 and
3 in the negative and hold that plaintiff has no right to claim any
interim reliefs. Hence, I pass following order.
O R D E R
1. Notice of Motion No.1013 of 2019 in Suit No.3337 of 2018 is
rejected and disposed off accordingly.
DATE : 18.02.2025 (A.SUBRAMANIAM)
PRINCIPAL JUDGE
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711).
Dictated and transcribed on : 18.02.2025
Checked and signed on : 21.02.2025
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER"
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(Grade-III)
DATE : 21.02.2025 at 01.55 pm Mr. Mohit M. Patange
Name of the Judge (with Court no.) : SHRI A.SUBRAMANIAM. C.R.NO.19.
Date of pronouncement of judgment/order : 18.02.2025
Judgment/order signed by the P.O. on : 21.02.2025
Judgment/order uploaded on : 21.02.2025
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