Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1095/2020 in S.C.Suit No.4326/2009. 1 Order.
MHCC010030962020
Presented on : 12-03-2020
Registered on : 12-03-2020
Decided on : 06-05-2023
Duration : 03year 01Months 23 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1095 OF 2020
IN
S. C. SUIT NO. 4362 OF 2009
(High Court Suit No. 2589 of 2009)
Vijay Vasanji Adsani And 2 Others ) ...Plaintiffs
Versus
Rambhau D. Malankar And 2 Ors ) ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 6th May 2023.
Shri Durgesh Kulkarni, Advocate for the plaintiffs.
Shri Paresh Madkaikar , Advocate for defendant No. 1(a) to 1(c).
Shri Satyadev Joshi, Advocate for defendant no.2.
None for defendant no.3.
ORDER
1. The plaintiffs have taken out this notice of motion for
temporary injunction restraining defendant No.2, their/his officers,
partners, servants, agents and /or any person from conducting business
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N/m No. 1095/2020 in S.C.Suit No.4326/2009. 2 Order.
in Shop No.2, Ground Floor, in OM Yashodhan CHS Ltd., Gokhale
Road, Hanuman Chowk, Mulund(East)400 081 ( Shop No.2).
2. Perused notice of motion, affidavitinreply filed by
defendant No.2 and defendants No. 1(a) to 1(c), rejoinder filed by the
plaintiff and surrejoinder filed by defendants No. 1(a) to 1(c). I have
also gone through the suit proceeding.
3. Heard Learned Counsel Shri Durgesh Kulkarni for the
plaintiffs, Learned Counsel Shri Paresh Madkaikar for the defendant
Nos. 1(a) to 1(c) and Learned Counsel Shri Satyadev Joshi for
defendant No.2.
4. On perusal of the contents in para3 of the affidavitin
support, it appears that defendant No.2 is in possession of Shop No.2,
but the plaintiffs have termed it as an act of trespass. It is the case of
the plaintiffs that third party is running ladies beauty saloon namely
“Beauty & Beyond” in the Shop No.2. Defendant No.2 has already
parted possession of Shop No.2 to the third party for conducting
business and he has committed the breach of the order. Therefore,
plaintiffs want to restrain the third party from conducting their
business. The plaintiffs also want to take possession of Shop No.2 by
appointing the Court Receiver.
5. It is contentions of defendant No.2 that defendant No.2 has
been carrying out business of the beauty saloon since 20162017.
Defendant No.2 purchased Shop No. 2 from defendant No.1 as per Sale
Agreement dtd.07.07.2005. Defendant No.1 is claiming rights in the
suit premises on the basis of agreement for sale. Share certificate of
Shop No.2 is also transferred in the name of defendant No.2, as per
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N/m No. 1095/2020 in S.C.Suit No.4326/2009. 3 Order.
order of Dy. Registrar dtd. 04.10.2008. In short, possession of
defendant No.2 over the Shop No.2 is admitted.
6. Learned Counsel Shri Durgesh Kulkarni for the plaintiffs
submitted that business of beauty parlor is no longer in operation and
there is possibility of creation of the third party rights. If prayers in the
notice of motion are considered in the context of rival submissions, the
plaintiffs have not sought relief of restraining defendant No.2 from
creating third party rights in the suit premises. The plaintiffs want to
restrain defendant No.2 as well as anybody else on his behalf from
conducting business in Shop No.2. Ultimate effect of such relief would
be stalling or stopping utilization and operation of business activities
from Shop No.2 by defendant No.2. When defendant No.2 has prima
facie title documents in his favour, it is not just to prevent him from
enjoying possession of Shop No.2 till adjudication of the present suit.
Considering wording of the prayer Clause (a) in the present notice of
motion, such relief cannot be granted. Hence, I proceed to pass
following order :
ORDER
1. Notice of Motion No. 1095 of 2020 is dismissed
2. Proceeding of N/M No. 1095 of 2020 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 06/05/2023. Mumbai.
1. Dictated on : 06/05/2023.
2. Transcribed on : 08/05/2023
3. Checked and Signed on : 08/05/2023
4. Delivered to Certified :
Copy Section on
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N/m No. 1095/2020 in S.C.Suit No.4326/2009. 4 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
08/05/2023 4.15 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 06/05/2023
Judgment/Order signed by P.O. on 08/05/2023
Judgment/Order uploaded on 08/05/2023
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