Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 1309 of 2019, in Suit no.2888 of 2018
MHCC010033732019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
NOTICE OF MOTION NO.1309 OF 2019
IN
S.C. SUIT NO.2888 OF 2018
Rakesh Avinashiram Dhodi & Anr. Plaintiffs.
V/s
Deven S/o Rakesh Dhodi & Anr. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 16TH DAY OF DECEMBER, 2022
: Appearances:
The learned Adv. Mr. Omprakash Pandey for plaintiffs.
None appeared for defendants.
ORAL ORDER
This Notice of Motion is taken out by plaintiffs for
claiming reliefs inter alia;
(a) To restrain defendants, by an order of temporary
injunction, from preventing plaintiffs' entry in suit business place i.e.
Sai Palace Restaurant and Banquet hall;
(b) To restrain defendants, by an order of temporary
injunction, from preventing and/or obstructing plaintiffs from
participating and looking after the management of the suit business
place.
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2. In short, it is contention of plaintiffs that defendant
Nos.1 & 2 are their sons. Plaintiffs are owners of the property being
block No.1 having ground + 1st floor; block No.2 having ground + 1st
floor; block No.3 having ground + two floors and block No.4 having
ground + two floor situated at Plot No.290A, Anand Nagar, Flank
Road, GTB Nagar, Sion Koliwada, Sion (E), Mumbai 400 037. (Herein
after referred to as “suit premises”).
3. It is further contention of plaintiffs that, they are carrying
business of restaurant and banquet hall under the name and style as
“M/s. Sai Palace Party Hall” and obtained license from Municipal
Corporation of Greater Mumbai, F/North Ward stands in the name of
plaintiff No.1. It is further contended that, ground floor and first floor
of block Nos.1, 2 and 3 are used for restaurant and banquet hall and
block No.4 having ground + two floor is used for residential purpose
of plaintiffs and defendants.
4. It is further contended that, as plaintiffs became old they
allowed their sons/defendants to look after the management and
business affairs of restaurant and banquet hall. Defendant No.2 is also
carrying on business under the name and style of “Bhavani Sales
Corporation” and having office at block No.3 on first floor in the suit
property.
5. It is further contended that, defendants are taking undue
advantage of their own wrong stopped to give account of the fetching
income deriving from business of restaurant as well as banquet hall of
‘M/s. Sai Palace’ since month of January 2018 to plaintiffs.
Defendants also stopped to pay to plaintiffs remuneration charges.
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Thus defendants deprived plaintiffs from their two times bread and
butter. Defendants also not giving pocket expenses to plaintiffs
though plaintiffs are absolute owner of suit premises.
6. It is further contended that, on 15.01.2018 when
plaintiffs enquired about the account of the income deriving from said
‘M/s. Sai Palace’ business of restaurant and banquet hall then
defendants promised and assured to plaintiffs that they will provide
all accounts to them. However defendants failed to do so. Therefore
again on 10.03.2018 plaintiffs again approached to defendants with
same demand. At that time defendants again sought for some time.
Thereafter again on 05.05.2018 plaintiffs approached to defendants
but of no use. Thereafter again on 22.10.2018 plaintiff approached to
defendants but this time defendants refused to give accounts of
business and threatened the plaintiffs of dire consequences.
7. It is further contended that, thereafter plaintiffs have
filed present suit and taken out Notice of Motion No.4209/2018
against defendants. In said notice of motion defendants undertook to
pay Rs.15000/ p.m., to each plaintiff on or before 15 th day of each
succeeding month. Accordingly consent terms came to be executed in
between plaintiffs and defendants on 17.12.2018 and thus Notice of
Motion came to be disposed off. However, defendants neither
complied with consent terms nor allowed plaintiffs to participate in
the business of restaurant and banquet hall known as ‘M/s. Sai
Palace’. Thus the present Notice of Motion.
8. Defendant No.1 opposed Notice of Motion by filing reply
on affidavit. It is contended that plaintiffs did not approach to court
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with clean hands and hence not entitled for the relief claimed. It is
further contended that defendant No.1 is the owner of block No.4,
Plot No.290 and 290A, Anand Nagar, Sion Koliwada, Sion (East),
Mumbai 400 037 vide registered Sale Agreement dated 16.08.2006.
Thus plaintiffs have no right, title and interest to claim any share in
the suit property. It is further contended that they never stopped
giving accounts of income derived from the said business to the
plaintiffs. Defendants denied all the adverse allegations.
9. Plaintiffs filed rejoinder and denied all the adverse
contents of reply filed by defendant No.1. It is contended that inspite
of entering into consent terms defendants did not pay a single pie to
plaintiffs and therefore it became very difficult for them to survive.
Thus Notice of Motion may kindly be allowed.
10. Heard learned advocate for plaintiffs. None appeared for
defendants when called. Perused the record.
11. Following points arises for my determination to which, I
record my finding with reasons as follows:
Sr.No Points Findings
1. Whether plaintiffs are entitled for the
reliefs claimed in Notice of Motion? Yes
2 What order? As per final order.
REASONS
AS TO POINT No.1:
12. At the outset I want to mention that, relationship in
between plaintiffs and defendants are not denied. It is to be seen that,
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plaintiffs are aged bout 60 years and 56 years respectively at the time
of institution of the suit in the year 2018. It is further to be seen that
in Notice of Motion No.4209/2018 taken out by plaintiffs, defendants
entered into a consent terms with plaintiffs thereby agreed to pay
Rs.15000/ p.m., to each plaintiff on or before 15 days of each
succeeding months from the date of the suit till the hearing and final
disposal of the suit. However, nothing on record to suggest that
defendants have complied with said consent terms. Defendant No.1 in
para 3(a) of reply to Notice of Motion admitted that plaintiffs are
owner of suit property. Though defendant No.1 claimed that he has
purchased block No.4, Plot No.290 and 290A of suit property vide
registered Sale Agreement dated 16.08.2006, but upon perusal of
said document it reveals that at that time defendant No.1 was hardly
aged about 21 to 22 years. Thus it prima faice casts doubt on the
independent income of defendant No.1 so as to purchase suit
property.
13. Here it is to be seen that plaintiffs are old aged persons.
They are owner of suit property. Now defendants are running
business of plaintiffs being their sons. Plaintiffs having no other
source of income and they are totally dependent upon defendants for
their survival. Even after executing the consent terms defendants
failed to pay Rs.15000/ p.m., each to plaintiffs. Therefore plaintiffs
have made out a prima facie case in their favour. Balance of
convenience also lies in favour of plaintiffs. If temporary injunction is
refused then naturally it is plaintiffs, who will suffer irreparable loss.
Hence my answer to Point No.1 is in affirmative.
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AS TO POINT NO.2:
14. In view of my above discussion, I pass following order.
ORDER
1. Notice of Motion no.1309/2019 stands allowed and
made absolute in terms of prayer clause (a) and (b).
2. Notice of Motion stands disposed off.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date: 16.12.2022 (C.R. No.1)
Dictated on : 16.12.2022
Transcribed on : 17.12.2022
checked and Signed on : 21.12.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 22.12.2022 NAME OF STENOGRAPHER(GI)
Mr. V.S. Shinde
TIME: 3.30 p.m.
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 16.12.2022
JUDGMENT/ORDER signed by P.O. on 22.12.2022
JUDGEMENT/ORDER uploaded on 22.12.2022
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