Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1212/22(Stamp 3391/22)
MHCC010035382022
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1212/2022
IN
S. C. SUIT (STAMP) NO. 3391/2022
Ajay Damodar Shinde ..Plaintiff
V/s.
1. Amol Shamrao Shinde
2. Sunanda Ramchandra Shinde .. Defendants.
Appearances :
Adv. V. B. Ghorpade for plaintiff.
Adv. Deepak Devkar for defendant.
Coram : His Honour Judge
Shri. A.H.Laddhad
CR No. : 03.
Date : 13.04.2022.
ORDER
1. Plaintiff filed instant notice of motion seeking following
reliefs :
(a) pending the hearing and final disposal of the present suit
defendant nos. 1 and 2, their servants, workers, authorized
officer of office, his relatives temporarily be restrained by an
order of injunction from taking any steps of evicting,
removing, threatening , disturbing peaceful enjoyment of suit
property i.e. gala no.1 and open space covered by iron shed
admeasuring 1200 sq.ft. lying and being at survey no. 141,
CTS No.191, at Village Bhandup, Taluka Kurla, Mumbai
Dist. Suburban at Govind Nagar, Gavdevi Road,
Bhandup(W), Mumbai 400 078.
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(b) pending the hearing and final disposal of the present notice of
motion, defendant nos. 1 and 2, their servants, workers,
authorized officer of office, his relatives temporarily be
restrained by an order of injunction from taking any steps of
evicting, removing, threatening, disturbing peaceful
enjoyment of suit property i.e. gala no.1 and open space
covered by iron shed admeasuring 1200 sq.ft. lying and being
at survey no. 141, CTS No.191, at Village Bhandup, Taluka
Kurla, Mumbai Dist. Suburban at Govind Nagar, Gavdevi
Road, Bhandup(W), Mumbai 400 078.
(c) Adinterim relief in terms of prayer clause(b) be granted.
(d) Any other or further order be passed looking to the facts and
circumstances of the case.
(e) Present suit be decreed in favour of plaintiff with costs.
2. It is the contention of the plaintiff that, the plaintiff is
carrying on business of wooden box in the name and style as "Supreme
Timber Trading Co." from gala no.1, survey no.141 on CTS No.191 with
shed at open space of 1200 sq.ft., situated at Govind Nagar, Gamdevi
Road, Bhandup, Mumbai.
3. It is contended that, one M/s. Walchand and Company Pvt.
Ltd. were owner of agricultural land bearing survey no.141, CTS 191.
Out of the aforesaid land, about 6 Gunthas were occupied by four
brothers, including the father of the plaintiff and defendant no.1. In the
year 1960, the father of the defendant no.1 i.e. Shamrao Madhav Shinde
was carrying on business of manufacturing wooden packing cases under
the name and style as 'M/s. Supreme Wood Works' on the aforesaid 6
guntha land. However, as Shamrao Shinde was not keeping well to look
after the business, therefore, his remaining brothers namely Haribhav
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Madhav Shinde, Nivruti Madhav Shinde and Damodar Madhav Shinde
(father of the plaintiff) agreed to join as partners in the business on
certain terms and conditions. Their partnership was continued upto
25.7.1991.
4. It is further submitted that, after dissolution of the
partnership firm, the plaintiff and his father since 12.11.1979 started
business under the name and style as 'M/s. Supreme Trading Co.' from
gala no.1 with open space covered by iron shed admeasuring 1200 sq.ft
lying on Survey no.141, CTS 191 Bhandup (hereinafter shall be referred
to as "suit property").
5. It is contended that, the proprietor of Supreme Timber
Trading Co. i.e. the father of the plaintiff expired on 24.11.2020 and
since then the plaintiff had carried on the same business. However, on
14.3.2022, the defendant restrained the plaintiff and his employees
from using the suit premises. Therefore, the plaintiff constrained to file
present suit along with Motion.
6. Motion is opposed by the defendant no.1 and 2 by filing
their reply. The defendants denied the plaintiff carrying on the business
from the suit premises. It is alleged that neither plaintiff nor his father
were ever in the possession of the suit premises. It is contended that,
his father Shamrao Shinde since 1960 carrying business of wooden
packing case under the name and style as 'Supreme Wood Works' at the
suit premises along with open shed of 5000 sq.ft. The plaintiff has no
documentary evidence to show that they are carrying on business from
the suit premises. Therefore, the defendants prayed for dismissal of the
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Motion.
7. Heard both the sides. Perused Motion and reply. The
plaintiff claiming to be in occupation and possession of the suit
premises since 1960, firstly on the basis of one partnership deed of
1960 and thereafter on the basis of proprietorship business run by his
father under the name and style as 'Supreme Timber Trading Co.'
8. Ld. Advocate for the defendants pointed out from the
documents of the plaintiff itself that the alleged partnership deed does
not bear signature or even name of the father of the plaintiff.
Photograph which has been annexed by the plaintiff does not show any
iron shed on 1200 sq.ft. in front of gala no.1. The plaintiff purposefully
hide GST number from which the address of principal place of business
can be assessed. He has pointed that the information obtained by the
defendant from Internet with respect to the business of the plaintiff
which shows principal place of the business is something different than
the suit property.
9. I have perused the documents which the plaintiff has
annexed. I find substance in the contention of the defendants that, the
partnership firm M/s. Supreme Wood Works alleged to be formed in the
year 1960, there is no signature on the aforesaid deed nor the plaintiff
filed any registration certificate. Therefore, the contention of the
plaintiff that, the aforesaid business was continued by three brothers/
four brothers till 1991 cannot be accepted at all.
10. The plaintiff also filed license issued under Shop and
Establishment Act appears to be issued on 15.6.1982, in which,
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although, the name of employer is mentioned as Damodar M. Shinde
and name of the establishment is mentioned as Supreme Timber Trading
Co., but address of the establishment is not mentioned. The plaintiff
further filed receipt dated 5.1.2004 towards payment to the BMC. But,
there is no reference of the suit premises. Another certificate issued
under Maharashtra Shop and Establishment Act for the period 2017 to
2019 bears postal address of the establishment as Govind Nagar, Suind
Road Bhandup. Telephone bill also does not refer the description of the
property. Sales Tax Certificate issued on 12.11.1979 bears address as
Govind Nagar, Gavdevi Road, Bhandup. Another certificate of
professional tax, Challan dated 3/12/ issued in the name of Supreme
Timber Trading Co. located at 118, Ghorpadeo X Road, Nafizabegam
Compound, Bombay 33. The address on the aforesaid certificate is
different from the suit premises. Further sales tax certificate dated
12.11.1979 bears name of the firm as M/s. Supreme Timber Trading Co.
situated at 110, Ghodepdeo Cross Road, which is different from the suit
premises.
11. The defendants invited my attention to the GST No. of
invoice of the plaintiff, which was issued by one Sangam Stores to the
plaintiff and also to the information obtained from Internet. The
aforesaid documents shows principal place of the business of the
plaintiff as B7, Tarabai Garg Niwas, Gaondevi Road, Bhandup(W),
Mumbai.
12. Moreover, it is the case of the plaintiff that there is an iron
shed in front of Gala no.1, but photograph which has been relied upon
by the plaintiff does not depict the aforesaid position. Therefore,
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looking to the aforesaid material, I do not find any prima facie case in
favour of the plaintiff. Therefore, I do not find substance in the Motion
and same deserves to be dismissed with following order :
ORDER
1. Notice of Motion No.1212 of 2022 is dismissed with costs.
2. Notice of Motion is disposed of accordingly.
(A.H.Laddhad)
Judge,
Dated : 13.4.2022 City Civil and Sessions Court,
Dictated on : 13.4.2022 Greater Bombay (CR 03)
Typed on : 13.4.2022
Draft given to HHJ on : 13.4.2022
Signed on : 18.4.2022
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Date 18.4.2022 at 3.00 pm (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD (C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 13.4.2022
JUDGMENT/ORDER signed by P.O. on 18.4.2022
JUDGMENT/ORDER uploaded on 18.4.2022
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