Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010030002018
Presented on : 01032018
Registered on : 01032018
Decided on : 26082021
Duration : 3 years, 5 months, 25 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 867 OF 2018
IN
CHAMBER SUMMONS NO.1230 OF 2003
IN
S.C. SUIT NO. 5390 OF 1970
The Trustees of the Port of Bombay … Plaintiff
VERSUS
1A Grace Lobo widow of Joseph
William Lobo And Ors. … Defendants.
And
1. Amzel Pvt. Ltd and Ors. ..Obstructionists.
And
1. Municipal Corporation of
Gr. Mumbai and another. … Respondents
Appearance:
Advocates Mulla & Mulla & Craigie Blunt and Caroe for the Plaintiff.
Advocate Mr. S.K. Parnjape for the Obstructionists.
CORAM: H.S. SATBHAI,
JUDGE, (C.R.NO. 59)
DATE : 26th August, 2021.
ORDER
The Notice of Motion is of Obstructionists Nos. 1 and 2 for
-- 1 of 7 --
2 N/M No. 867/2018 in
Suit No.5390/1970
declaring the demand notice dated 13.12.2017 of respondent No.1
Mumbai Municipal Corporation, as null and void, for direction to
respondent No.1 Mumbai Municiapl Corporation to reasses the tax of
the suit premises Gala Nos. 1 & 2, excluding Gala No.3 and for
temporary injunction that not to take any coercive action against the
obstructionists No.1 and 2 in respect of Gala Nos.1 and 2, in pursuance
of the demand notice dated 13.12.2017.
2. The plaintiff Bombay Port Trust (BPT) has taken out the
chamber summons No.1230 of 2003, seeking removal of obstruction of
defendant Nos. 1 to 3 in suit premises with the aid of Order 21 Rule 97
of CPC. In said chamber summons, the obstructionists No.1 and 2
appeared. Pending hearing of the obstructionists proceeding, according
to obstructionists No. 1 and 2, the Mumbai Municipal Corporation
issued one demand notice dated 13.12.2017 and thereby demanded
consolidated tax of Gala Nos.1 to 3. According to obstructionists No.1
and 2, they have no nexus with Gala No.3. It is occupied by respondent
No.2. But consolidated notice to pay the tax in respect of Gala Nos.1 to
3 is illegal. They are ready to pay the separate tax of Gala Nos.1 and 2.
The threat of Mumbai Municipal Corporation to take coercive action for
nonpayment of the tax of Gala No.3 and attaching the Gala Nos.1 and
2 is illegal. The obstructionists No.1 and 2 are ready and willing to pay
the proper tax in respect of Gala Nos.1 and 2. They sought the
declaration that the demand notice dated 13.12.2017, is illegal and
void. They have sought separate assessment of tax of Gala Nos.1 and 2
and issuance of separate bill. They also sought temporary injunction
that not to take any coercive action against them in respect of the non
payment of the tax of Gala No.3.
-- 2 of 7 --
3 N/M No. 867/2018 in
Suit No.5390/1970
3. The original plaintiffBPT, object the application, vide reply
of October, 2018. It objected the maintainability of the N/M. It
explained that, how the possession of the obstructionists over the suit
premises is unlawful. It claimed that no right, title and interest in suit
premises have been conferred on obstructionists No.1 and 2 and
respondent No.2. It asked to dismiss the notice of motion with costs.
4. Heard Ld. Advocate for the obstructionists No.1 and 2.
Heard Ld. Advocate for the original plaintiffBPT. Respondent Nos.1
and 2 not appeared despite served with the notice of motion. Perused
the N/M, the reply, the documents and the record. On its basis
following points rise for the determination and the findings to each of
them for the reasons recorded as below:
Sr.No. POINTS FINDINGS
1. Whether the notice of motion is
maintainable in its present form ? No.
2. Whether the obstructionists No.1 and 2
are entitled for any relief of the Notice of
Motion ?
No.
3. What order N/M is disallowed
with costs.
Reasons:
As to Point Nos. 1 &2 :
5. The original Suit No.5390 of 2017 was to recover the
possession of the suit premises from the defendants. It came to be
-- 3 of 7 --
4 N/M No. 867/2018 in
Suit No.5390/1970
decreed on 11.12.1990. When the decree sought to be executed, the
obstructionists No.1 to 3 resisted the decree. Therefore, chamber
summons No.1230/2003 has been taken out. In said chamber
summons a limited inquiry is being made that whether obstructionists
No.1 to 3 are having any independent right, title and interest in the suit
premises. The scope of chamber summons is confined to decide that
what is the status of obstructionists No.1 and 2 in suit premises ? The
chamber summons No.1230/2003 is governed by the provision
enumerated under Order 21 Rule 97 of CPC. Though, it is said that said
obstructionists proceeding can be tried as a suit, the scope of the inquiry
of the proceeding is limited to see that whether the obstructionists are
having any independent right, title and interest in the suit premises and
the decree under execution is binding on them or not ?
6. The Mumbai Municipal Corporation (earlier BMC), was not
party to the original suit No.5390/1970. It is also not a party to the
chamber summons No.1230/2003. For the first time for the purpose of
present N/M, the obstructionists have made the Mumbai Municipal
Corporation as partyrespondent. The issuance of demand notice dated
13.12.2017, by the Mumbai Municipal Corporation in respect of Gala
Nos.1 to 3 is the cause of action of present N/M. The said cause of
action is later to filing of the chamber summons No.1230/2003. Vide
demand notice dated 13.12.2017, the MMC has asked the holder of the
suit premises to pay the tax assessed as per relevant rules. But instead
of challenging the demand notice in a proper suit/proceeding, the
obstructionists have sought the relief of declaration, direction and
temporary injunction in N/M, which is beyond the scope of the
obstructionists proceeding which is purported to be under Order 21
-- 4 of 7 --
5 N/M No. 867/2018 in
Suit No.5390/1970
Rule 97 of the CPC. Whether the demand notice dated 13.12.2017 is
legal and valid or not, cannot be the subject matter of the chamber
summons filed only for deciding the right, title and interest of the
obstructionists in suit premises.
7. As stated above, the demand notice has been sent by
Mumbai Municipal Corporation, after filing of the chamber summons
and during the pendency of the chamber summons. But merely the
chamber summons is waiting for hearing, obstructionists No.1 and 2 are
not justified in seeking any relief in respect of the demand notice by
making Mumbai Municipal Corporation as a partyrespondent. When
Mumbai Municipal Corporation was not the party, either in the original
suit, or in the chamber summons, no relief can be given by making it as
a partyrespondent in present N/M. It is an independent cause of action
and separate suit/proceeding is the remedy available to the
obstructionists No.1 and 2. In an inquiry deciding the right, title and
interest of the obstructionists, there is no scope to decide the legality
and validity of the demand notice issued by the third party i.e. Mumbai
Municipal Corporation. Therefore, the notice of motion in its present
form is not maintainable. The relief asked in the N/M, for the above
reasons, cannot be given as the scope of N/M is to grant urgent interim
relief. But the obstructionists No.1 and 2 are asking to declare demand
notice dated 13.12.2017, as void abinitio which can be given only in a
suit. No relief of declaration can be given in the interlocutory
proceeding. Therefore, answering the point Nos.1 & 2 accordingly,
following order is passed.
-- 5 of 7 --
6 N/M No. 867/2018 in
Suit No.5390/1970
ORDER
Notice of Motion No.867 of 2011 is disallowed with costs
and accordingly disposed off.
Dated : 26.08.2021 (H.S. SATBHAI)
Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 26.08.2021
Transcribed on : 27.08.2021
Signed on : 03.09.2021
-- 6 of 7 --
7 N/M No. 867/2018 in
Suit No.5390/1970
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 04.09..2021 10.30 A.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri H.S. Satbhai
(C.R.No. 59)
Date of Pronouncement of
JUDGMENT /ORDER
26.08.2021
JUDGMENT /ORDER signed by P.O. on 03.09.2021
JUDGMENT /ORDER uploaded on 04.09.2021
-- 7 of 7 --