Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1156/2019 in Suit 8109/2002
NOTICE OF MOTION NO. 1156 OF 2019
IN
SUIT NO. 8109 OF 2002
(HIGH COURT SUIT NO. 2923 OF 2002)
CNR NO. : MHCC010030132019
Mohomed Umar Haji Valimohomed & Ors. ...Plaintiffs
Versus
Abdul Razak Haji Suleman (since deceased
through Abbas Adam Manasiya & Ors. … Defendants
Appearance:
Adv. Shri. Santosh Vishwakarma for Plaintiffs.
Adv. Shri. Thorat for Defendant No. 3 to 5.
CORAM : SMT. S.S. NAGUR
JUDGE, (C.R.NO.4)
DATE : 11/10/2021
ORDER
The Notice of Motion is filed by the plaintiffs to allow
Constituted Attorney of plaintiffs to collect/withdraw entire amount
deposited by agent i.e. defendant no. 3 of the suit premises before
Hon'ble Court Receiver, Bombay on behalf of the plaintiffs in the above
referred suit along with Royalty amount and to remove/cancel agent
i.e. defendant no. 3 of the suit premises and direct Hon'ble Court
Receiver to call fresh bids of the suit premises.
2. The Notice of Motion is supported by Affidavit of Mr. Imran
Abubakar Maknojia, the Power of Attorney holder of the plaintiff no. 2
to 5. The plaintiffs stated that on 24.09.2002 Hon'ble Bombay High
-- 1 of 6 --
2 NM 1156/2019 in Suit 8109/2002
Court has passed an order directing Court Receiver to take physical
possession of the suit premises and appoint the agent for conducting
business from the suit premises. On 28.04.2003 the terms and
conditions were settled and the Court Receiver has given the
advertisement in two newspapers called the bid. From the said one,
Mr.Mohammed Sharif Haji Suleman i.e. the defendant no. 3 was
appointed as agent to do the business. The plaintiffs stated that the
defendant no. 3 has produced xerox copy of Share Certificate dated
15.01.2008 along with unsigned / attested member's ledger summary
for period of 01.04.2014 to 01.12.2014, 01.04.2013 to 31.12.2014,
01.04.2012 to 31.03.2013 and 01.04.2011 to 31.12.2012. The
defendant no. 3 failed to produce the copy of Sale Agreement. The
defendant no. 3 has committed breach/violation of the terms and
condition executed between the Court Receiver and the defendant no.
3. He also committed contempt of Hon'ble High Court order dated
24.09.2002 and 19.08.2004. The defendant no. 3 illegally transferred
the suit premises in his name. Hence, prayed to remove defendant no.
3 of the suit premises.
3. The defendant no. 3 filed reply and denied the allegations
of the Notice of Motion. The Hon'ble High Court in order dated
19.08.2004 permitted the original plaintiff to withdraw the amount of
Rs.3500/ per month. The original plaintiff never withdraw the said
amount since September 2004. The original plaintiff was well aware
that he would not be in a position to either furnish any security and/or
give any undertaking before the office of the Court Receiver.
-- 2 of 6 --
3 NM 1156/2019 in Suit 8109/2002
4. The allegation of breach is false, baseless and bogus. The
defendant denied that the suit premises is transferred to his name in
violation of order dated 19.08.2004. The defendant no. 3 has given
undertaking to the Court Receiver that he will not alienate part with
possession mortgage or create third party right of the suit property.
Hence, prayed to reject the Notice of Motion.
5. The plaintiff filed rejoinder affidavit to the reply and
denied the contents of the above reply filed by the defendant no. 3.
6. Heard advocate Shri. Santosh Vishwakarma for plaintiffs
and Advocate Shri. Thorat for defendants. Perused contents of Notice
of Motion, reply and rejoinder to reply supported by Affidavit.
7. Advocate Shri.Thorat for defendants has drawn my
attention to order passed by the Hon'ble High Court dated 19.08.2004.
The Court Receiver is appointed and permitted the plaintiff to
withdraw the amount of Rs.3,500/ per month commencing from the
month of September 2004, on the plaintiff furnishing undertaking to
redeposit the amount in the Court. On such terms and conditions, as
the Court may direct and furnish the security to the satisfaction of the
Receiver. In respect of withdrawal of the amount, the plaintiff has been
already given liberty on above conditions by the Hon'ble High Court.
Therefore, again the plaintiff cannot seek the same relief.
8. The plaintiff has relied on the amended Written Statement to
show that the added para 4(a) states that, “since then the premises
from where the business is being carried on has been transferred
-- 3 of 6 --
4 NM 1156/2019 in Suit 8109/2002
to the name of defendant no. 3 and he has become the owner of
the suit premises. These defendants say that any claim the plaintiff
had in the suit premises has extinguished and ceased to exist”. In
the Written Statement, it is further stated in para no. 5 that, “the
defendant no. 3 is the monthly contractual tenant in respect of
Shop No. 5, Storage No. 10 in his individual capacity where the
suit Hotel business is carried on since the year 1982”.
9. The plaintiffs in the plaint para no. 1 stated that the defendant
no. 1 to 7 are the persons who are either partner and/or claiming to be
partner in respect of the business. Considering the dispute between the
parties in respect of the partnership business and the right of the
plaintiffs in the said business which is to be adjudicated, the objection
raised by the plaintiffs is not tenable. The order is already passed by
the Hon'ble High Court in the year 2004 itself allowing the plaintiff to
withdraw the amount of Rs.3,500/ deposited with Receiver on terms
and conditions and security to the satisfaction of the Receiver. Hence,
pass following order :
ORDER
1. The Notice of Motion is rejected.
2. No order as to costs.
3. Accordingly, Notice of Motion is disposed of.
(SMT. S.S.NAGUR)
Judge
Dt.: 11/10/2021 City Civil Court,
Gr. Mumbai
Declared on : 11/10/2021
Dictated on : 11/10/2021
Typed on : 11/10/2021
Checked & Signed on : 12/10/2021
-- 4 of 6 --
5 NM 1156/2019 in Suit 8109/2002
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
13/10/2021 5.00 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
11/10/2021
Judgment/order signed by P.O on 12/10/2021
Judgment/order uploaded on 13/10/2021
-- 5 of 6 --
6 NM 1156/2019 in Suit 8109/2002
-- 6 of 6 --