Interim Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1394/22 in S.C.Suit No. 1099/2020. 1 Order.
MHCC010040652022
Presented on : 11-04-2022
Registered on : 11-04-2022
Decided on : 20-12-2022
Duration : 0 years, 8 months, 9 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1394 OF 2022
IN
COUNTER CLAIM (EXHIBIT NO. 6)
IN
SHORT CAUSE SUIT NO. 1099 OF 2020
Chandrashekhar Sitaram Joglekar and one )...Applicants/
Defendants no.1 and 2
Versus
Jayshree Vijaykumar Joglekar )...Plaintiff
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 20th DECEMBER, 2022.
Shri Sandeep Jalan, Advocate for the applicants/ defendants no.1 and
2.
Shri Rajeev Matkar, Advocate for the plaintiff.
ORDER
1. Defendants no.1 and 2 have taken out the notice of motion
to order and decree the relief claimed in clauses (a) and (b) in the
counterclaim (Exh.6) in Suit No.1099/2020 and to dismiss Suit
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N/m No. 1394/22 in S.C.Suit No. 1099/2020. 2 Order.
No.1099/2020. (Parties are referred with their nomenclatures in the
suit only.)
2. Perused notice of motion and affidavit in reply. I have also
gone through the suit proceedings and written notes of arguments filed
by the defendants. Heard learned counsel Sandeep Jalan for the
defendants and learned counsel Rajeev Matkar for the plaintiff.
3. Case of the plaintiff, in brief, is as under :
The plaintiff is wife of elder brother of defendant No.1.
Husband of the plaintiff expired on 8th August, 2019. Defendants No.1
and 2 are husband and wife. The suit premises is consisting of tenanted
two commercial units forming one shop admeasuring about 13.50
square Meters at Dadar, Mumbai standing in the name of Sitaram
Gopal Joglekar, the late father of defendant No.1 and fatherinlaw of
the plaintiff. The plaintiff has filed this suit for permanent injunction in
respect of the suit premises against the defendants. The defendants filed
written statement (Exh.5) and counterclaim (Exh.6) in respect of the
suit premises claiming carrying on business exclusively at the suit
premises by virtue of oral agreement with the plaintiff dated 11th
February, 2020.
4. The defendants have taken out the notice of motion under
Order XII Rule 6 of the CPC for judgment on admission. The defendants
have also taken out the notice of motion under Order XII Rule 6 having
Notice of Motion No. 2551 of 2021 and the same is pending for
adjudication. The grounds for praying judgment on admission in the
present notice of motion are separate and independent of earlier notice
of motion. Earlier notice of motion was founded on failure of the
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N/m No. 1394/22 in S.C.Suit No. 1099/2020. 3 Order.
plaintiff to deal with material pleadings in the counterclaim, resulting in
deemed admission of material facts. Present notice of motion is founded
on admission of facts by the plaintiff that the defendants have paid
salary to the staff at the suit premises. Categorical admission of fact
exposes the falsehood of the entire case put up by the plaintiff and
proves the case put up by the defendants in their written statement and
in counterclaim.
5. The plaintiff has come up with the case that the plaintiff's
husband was carrying on business at suit premises since 1967 – 68. The
plaintiff was all along doing business along with her husband at the suit
premises. The plaintiff's husband expired on 08th August, 2019. In
February 2020, the defendant No.1 started harassing the plaintiff by
claiming share in the new flat in Palanji Shojpal Redevelopment
Scheme which the plaintiff denied. In midFebruary, 2020, defendant
No.1 under the pretext of helping the plaintiff started coming to the suit
premises for 1 or 2 hours. Due to onslaught of Coronavirus– 19, the
lockdown was declared and the plaintiff had to close the business at the
suit demises in or around 19th March, 2020 and restarted the business
at the suit premises on or about 25th May, 2020. Defendant No.1 again
started coming and the plaintiff in good faith allowed him and she did
not suspect his evil intention. Defendant No.1 taking undue advantage
flicked various documents from the suit premises. He also sold stock
without informing plaintiff and usurped sale proceeds. The plaintiff
intended to complaint to the police, but at the request of son of
defendant No.1 and also due to strain on police department due to
Covid19, the plaintiff did not make a complaint to the police. On 10th
June, 2020, there was a theft at the suit premises. The plaintiff changed
the lock of the suit premises and defendant No.1 started bringing
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N/m No. 1394/22 in S.C.Suit No. 1099/2020. 4 Order.
defendant No.2 at the suit premises to help in the business. On 21st
July, 2020, the plaintiff received message from BEST about electricity
Bill. The plaintiff's daughter realized that defendant No.1 has changed
mobile number at BEST (Electricity supply company) records and
defendant No.1 put his mobile number in place of the plaintiff's
number. The defendant's plan to create the record was exposed and it
was revealed that the defendants fabricated business letter heads
claiming proprietor of business at the suit premises. The plaintiff
directed the defendants to stop coming forthwith at the suit premises.
On 2nd August, 2020, the defendants objected to the plaintiff's entry
into the suit premises, but the plaintiff managed to get into the suit
premises. On 3rd August 2020, at about 11.15 a.m., the defendants
tried to barge into the suit premises and the plaintiff called the police
for help.. On this premise, the plaintiff filed the suit for permanent
injunction against these defendants.
6. Case of the defendants, in belief, is that post death of the
plaintiff's husband, at the request of the plaintiff, the defendants started
the business at the suit premises from 13th August, 2019 for the next 3
months for and on behalf of the plaintiff and as a trustee of the plaintiff.
Defendants No.1 inquired with the plaintiff about the status of the new
flat to be given in a redeveloped building in lieu of the old place of the
residence. The plaintiff's and the defendants' families, their father and
mother lived together since 195253. The plaintiff did not disclose
anything in this respect. An understanding was reached between the
plaintiff and the defendant No.1 on 11th February, 2020 to the effect
that pending the amicable resolution of these property issues, defendant
No.1 shall run the business at the suit premises from 15th February,
2020 independently.
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N/m No. 1394/22 in S.C.Suit No. 1099/2020. 5 Order.
7. Pursuant to aforesaid understanding, from 15th February,
2020 these defendants were exclusively runnig the business at the suit
premises uninterruptedly and peacefully till wrongful obstruction by the
plaintiff on 3rd August, 2020. The plaintiff, under the sympathy of the
police, being an aged widow, prevented the defendants from entering
into the suit premises since 3rd August, 2020 and under the instructions
of the police, these defendants stayed away from the suit premises. The
defendants have placed on record most relevant documents concerning
the running of the business that clearly establish that they were
exclusively running the business at the suit premises since 15th
February, 2020 [exhibits D, E, F, G, H, I and J to the counterclaim].
While running the business at the suit premises, the defendants paid
salary to their staff for February, 2020 till June 2020 including salary
during lockdown period [Exhibits I and J to the counterclaim]. Among
other books of accounts, two diaries were maintained at the suit
premises recording therein daily outgo of cash and daily inward of
goods/stock and the same were recorded in respective handwriting
either by the plaintiff or defendant No.1. Post 15th February, 2020,
defendant No.1 in his handwriting, entirely recorded all these entities in
both these diaries (Exhibit F and G to the counterclaim). These
documents were also filed in the affidavit in reply to the Notice of
Motion No.1537 of 2020 taken out by the plaintiff. The plaintiff in her
rejoinder did not even remotely disputed the genuineness of any of
these documents. In fact, she admitted that defendant No.1 made salary
payment to the staff.
8. Single admission of fact by the plaintiff exposes the entire
false case put up by the plaintiff and proved the case of the defendants.
Salary payment to two Staff for the month of March 2020 and
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N/m No. 1394/22 in S.C.Suit No. 1099/2020. 6 Order.
April,2020 was directly deposited in the bank accounts on 13th April,
2020 and 18th May, 2020. The plaintiff had admitted the payment of
salary to two staff during lockdown period by the defendants. However,
the plaintiff claims that such salary payment was made by the
defendants because defendant No.1 had committed theft and the same
money was reimbursed/paid by way of salary to the staff. [Para 8 in
rejoinder dated 24th August, 2020 by the plaintiff in Notice of Motion
No.1537 of 2020]. The patent falsity in the said contention of plaintiff
can be gathered from the pleadings of the plaintiff herself. It may be
seen that the allegation of theft against defendant No.1 was made after
25.05.2020 (Paras 8 and 9 of the plaint). The Salary payment of two
Staff was made on 13.04.2020 and 18.05.2020 (Exhibits “I” and “J” to
the Counterclaim). This being the factual position, contention of the
plaintiff that such salary payment was an “adjustment” does not hold
any water. Therefore, once it is admitted that defendants made salary
payment to the staff, then, it has to be inferred that defendants were
exclusively running the business at Suit premises post 15.02.2020. By
relying upon all of these contentions, the defendants prayed to allow
the notice of motion.
9. The plaintiff has filed affidavit in reply in which she has
come up with the case as under: –
Present notice of motion is not maintainable. It is taken out
on account of misconceived notion law and is liable to be rejected. In
addition to it, the plaintiff is a senior citizen and eager to go on with her
suit finally. However, the defendants are delaying trial in the case by
filing applications after applications. Under the garb of a court receiver
(who is appointed only to take accounts), the defendant tried to place
the Court Receiver Board on the suit shop. The plaintiff filed AO with
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N/m No. 1394/22 in S.C.Suit No. 1099/2020. 7 Order.
CA in the Hon'ble High Court and have obtained adinterim injunction
(Exhibit A Colly annexed to the affidavit in reply). The defendants have
overlooked that their counterclaim is in the suit of the plaintiff and it is
not a separate suit. Counterclaim is to be tried as a suit and it is not an
independent suit in law. Therefore, there is always an interdependence
of the main suit and the counterclaim. The defendant has grossly
missunderstood the provisions of Order VIII Rule 6A to 6G of the CPC.
The defendants have not chosen to file a separate suit. The defendants
are not trying to seek separation of the counterclaim by ignoring that
the suit and the counterclaim calls for adjudication simultaneously.
Averments in the suit have to be taken as complete denial of the
defendant's case. Therefore, the defendants cannot even allege that
there is no denial to the averments in the counterclaim. It is sufficient to
appreciate that the counterclaim is filed to counter the plaint. There is
already ample of to specifically deny the claim of the defendant in the
suit of the plaintiff.
10. Averments in the plaintiff constitute a very specific denial
of the counterclaim. The defendants are not entitled to invoke provision
of Order XII Rule 6 of the CPC. The defendants have clearly admitted
factual position that they are not in possession of the suit premises at
all. As per the contention of the plaintiff in the suit that there was some
understanding between the parties on 11 February 2020. On that basis,
the defendants claims prayer clause (a) and (b) of the counterclaim and
also makes identical prayers in the Notice of Motion. As a result, the
said interim prayer cannot be granted at all. Admittedly, entire stock of
medicines in the suit premises belongs to late husband of the plaintiff
and herself. Payments including income tax and GST are made by late
husband of the plaintiff and she herself in respect of their business in
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N/m No. 1394/22 in S.C.Suit No. 1099/2020. 8 Order.
the suit premises. Admittedly, the plaintiff has been paying the rent of
the suit premises which was earlier paid by her late husband to the
landlords for more than 3 decades. (Exhibit C colly annexed with the
affidavit in a reply are copies of the latest rent payment documents and
IT returns). The plaintiff denied that there are any pending issues of
division of properties. The plaintiff has title documents to all properties.
There was no understanding that the defendants will attend the
business in the suit premises. All along from the suit staff salary and
benefit are paid by late husband of the plaintiff and she herself. The
plaintiff and her husband gave the details to their CA for IT purpose.
The solitay salary payment claimed by defendant No.1 was paid by him
undertake threat of police as it was her money flicked from the suit
shop which is pointed out in paragraph no.9 of the plaint. Even at the
time of theft, the plaintiff always told police that its her business and
the amount of shutter repairs was from her business sales. At no point
of time, there was no oral agreement between the plaintiff and the
defendants as claimed by them. The defendants had come to the suit
premises under the pretext of helping her for a few days after the death
of her husband. Thereafter, for few more days, he came to the suit shop
purely on permission and with sympathy of the plaintiff. When the
plaintiff noticed his dishonesty, she did not permit him to work in the
suit shop that resulted into the defendant stooping to a low level
which was followed by the police complaints and the suit proceeding.
She prayed for dismissal of the Notice of Motion.
11. Learned counsel Shri Sandeep Jalan for the defendants
reiterated the contents of affidavit in support. He submitted that
allegations of theft are made, but there is no question of adjustment of
theft amount for making payment of salary to staff members. Defendant
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N/m No. 1394/22 in S.C.Suit No. 1099/2020. 9 Order.
No.1 used to visit the suit premises for assisting the plaintiff. The
defendants made prayer for mandatory injunction for allowing them to
run business in the suit premises and for account. He relied upon
rejoinder (Exh.4 Para8) to show the admission of the plaintiff
regarding salary payment made by the defendants. By relying upon this
admission, he prayed to allow the Notice of Motion.
12. On the contrary, Learned counsel Shri Rajeev Matkar for
the plaintiff submitted that case of the plaintiff is very specific that her
husband was running business from 1967 to 2000. He further reiterated
contents in the plaint and submitted that defendant no.1 used to visit
the suit premises under the pretext of helping the plaintiff after demise
of her husband. The suit premises is tenanted premises. The current
account is in the name of the plaintiff's husband for 40 years. The
husband of the plaintiff paid taxes of business. Suit is for simplicitor
injunction. He referred Para15 in the counterclaim and submitted that
the defendants had given no objection to transfer license of the suit in
the name of Vijay(husband of the plaintiff). The defendants ran
business as a trustee of the plaintiff and then, the plaintiff came to the
shop. By pointing out the details in pleadings of both sides, he
submitted that notice of motion may be dismissed.
REASONS
13. On perusal of the plaint, rejoinder (Exh.04), counterclaim
(Exh.06) and written statement to counterclaim (Exh.07), it appears
that the license of the medical shop in the suit premises was transferred
in the name of plaintiff's husband. After the demise of the plaintiff's
husband, differences are developed between the plaintiff and
defendants No. 1 and 2. The plaintiff claiming rights in the shop in the
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N/m No. 1394/22 in S.C.Suit No. 1099/2020. 10 Order.
suit premises being legal heir of her husband. On the contrary, the
defendants have come with the case that they were solely running the
shop from August2019 to November2019. It is the case of the
defendants that oral understanding was reached between the parties on
11.02.2022 and defendant no.1 was allowed to run business in the suit
premises independently from 15.02.2020 and since then, the suit
premises are in possession of the defendants. Subsequent development
in the form of payment of salary to staff members from February2020
till June2020 by the defendants is relied by the defendants to
demonstrate mutual understanding between the parties. This
contention is countered by the plaintiff by pleading in para 8 of
rejoinder in Notice of Motion No.1537/2020 by stating that salary to
staff members were paid to adjust his stolen amount by the defendants.
In short, the plaintiff as well as defendants no. 1 and 2 have two
different versions of their respective cases. Both these versions are not
going in one direction. The plaintiff as well as the defendants have not
only putforth their own case but also proceeded to seek reliefs from the
court. Considering unique nature of factual aspect in the case in hand, it
is not possible to overlook contrary versions of the plaintiff and the
defendants and to proceed ahead on failures of the plaintiff to deny the
version of the defendants in written statement to counterclaim (Exh.7)
and alleged admission about payment of salary to staff by the
defendants.
14. It is pertinent to note that the plaintiff has not admitted
oral understanding asserted by the defendants. If rival pleadings of both
sides are going in opposite directions, failure of either party to
specifically deny few portions in pleadings of other side cannot be
taken as an admission under Order XII Rule 6 of the CPC. Learned
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N/m No. 1394/22 in S.C.Suit No. 1099/2020. 11 Order.
counsel Shri Sandeep Jalan has relied upon observations in para 12 in
the case of Uttam Singh Duggal and Company Private Limited V/s.
Union Bank of India 2000 LawSuit(SC) 1216 in which it is observed
that where other parties has made a plain admission entitling the
former to succeed, it should apply and also wherever there is clear
admission of facts in the case of which, it is impossible for the party
making such admission to succeed. If these observations are considered,
plain and clear admissions should be given by the party to rely upon the
same. In the case in hand, the defendants are relying upon deemed
admissions within the meaning of Order VIII Rule 5(1) of the CPC.
Therefore, contradictory stands of both sides and applicable legal
position do not permit this court to decree the counterclaim as per
Order XII Rule 6 of the CPC. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 1394 of 2022 is dismissed.
2. Proceeding of Notice of Motion No. 1394 of 2022 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 20/12/2022. Mumbai.
1. Dictated on : 19 & 20/12/2022.
2. Transcribed on : 19 & 20/12/2022.
3. Corrected on : 21/12/2022.
4. Signed on : 21/12/2022.
5. Delivered to Certified :
Copy Section on
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N/m No. 1394/22 in S.C.Suit No. 1099/2020. 12 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23/12/2022. 5.11 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 20/12/2022.
Judgment/Order signed by P.O. on 21/12/2022.
Judgment/Order uploaded on 23/12/2022.
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