Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM-1198-18 Suit 425-18
CNR NO. MHCC010038452018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO. 1198 OF 2018
IN
S.C. SUIT NO.425 of 2018
Sheth Tribhuvandas Jamnadas ]
Education Society. ].. Plaintiff.
Versus
1. Shri D.N. Samant ]
2. Smt. Vidyut Pradeep Samant. ].. Defendants.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 4).
DATE: 26th April, 2018.
Adv. Pratap Singh for the plaintiff.
Adv. C. S. Joshi for the defendants.
ORDER
The plaintiff has taken out this notice of motion for
removing unlawful lock put on the main gate of the suit premises and
restraining the defendants from interfering in the use of the suit
premises.
2. The plaintiff's case in brief is that it is duly registered
society and mainly doing charitable work in the field of Education. The
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plaintiff is in use and occupation of cultural and marriage hall i.e. the
suit premises as per the agreement dated 08/04/1999 and
04/10/2000. The defendants are Trustees of Maharashtra Vidya Vikas
Mandal. Late Pradeep D. Samant has approached the plaintiff for
financial assistance for construction of school as they were facing cash
crunch. The plaintiff agreed for financial assistance, therefore
agreement dated 08/04/1999 was executed. Inadvertently, in the same
the name of Chairman and Trustees were mentioned as Donor Trust. It
was agreed that the plaintiff would bear the cost of construction of
community hall on ground of around 4000 square feet and the plaintiff
was allowed to use the same. There was nothing about sharing of
profits by the plaintiff with the defendants for the first 30 years. The
plaintiff incurred huge expenses for construction. For avoiding the
discrepancy in the agreement dated 08/04/1999, another agreement
was executed on 04/10/2000. The clause 4(B) was amended in the
agreement after consultation with the defendants. The defendant No.1
has filed suit No.1331 of 2001 for declaration that the agreement dated
04/10/2000 be declared as null and void. Vide judgment dated
05/11/2011 the court has come to the conclusion that the agreement
dated 06/10/2000 is tampered with by the plaintiff and they were
directed to act upon the said agreement excluding the said tampered
portion. The defendants have challenged the said judgment and decree
in First Appeal No.1277 of 2001. The plaintiff is conducting the
functions in the suit premises. On 12/07/2017 as the urinals were
locked, therefore the plaintiff has filed Civil Application No.2035 of
2017 in pending First Appeal 1277 of 2011 as they have accepted the
booking for the functions. The Hon'ble High Court in order to secure
the interest of the children, dismissed the said Civil Application. The
defendants taking disadvantage of the said order are interfering with
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the use and possession of the plaintiff and they have put a lock on the
suit premises thereby obstructing use and ingress and egress of the
defendants on illegal advice of their Advocate. The reports were lodged
and the notices were issued to the defendants, but the defendants
failed to remove the lock. As acts of the defendants are causing
irreparable loss to the plaintiff by not allowing the use of the suit
premises, present notice of motion is taken out.
3. The defendants filed their written statement which is
treated as reply to the notice of motion. It is stated that the suit is
barred by principle of resjudicata. It is stated that the plaintiff is
empowered by the resolution dated 01/12/2017 of the NKT Education
Trust and the suit is filed by TJ Education Society. The agreement was
also executed by NKT Education Trust. Hence, the suit is not properly
instituted. It is stated that it is clearly mentioned in the order of the
Hon’ble High Court that the plaintiff is not entitled to hold any function
in the suit premises. There was tampering with the agreement dated
04/10/2000. It is stated that the plaintiff has not given accounts and
also not deposited 50% share of the defendants, therefore execution
application is filed and the plaintiff was directed to deposit 50% share.
The summary suit is also filed by the plaintiff against the defendants
for recovery of amount of the agreement. The present suit is filed by
playing fraud upon the court. It is stated that holding of the functions
in the hall is stayed by the Hon’ble High Court till the hearing of the
First Appeal. The plaintiff is not entitled for any relief. It is stated that
the pleadings in present suit are directly in issue in First Appeal.
4. Heard Advocate for the plaintiff and defendants. Perused
the record of the case.
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5. In view of rival pleadings of the parties following points
arise for my determination and I have recorded my findings thereon for
the reasons to follow:
POINTS FINDINGS
(1) Whether the plaintiff has made out prima
facie case ? : No.
(2) Whether balance of convenience lies in
its favour ? : No.
(3) Whether irreparable loss will be caused
to plaintiff, if no relief is granted ? : No.
(4) What order ? : As per final order.
REASONS
Point Nos.1 to 3:
6. The plaintiff has come out with a case that it is in
possession of the suit premises and their possession is admitted in view
of two agreements executed between the plaintiff and the defendants.
This court in Suit No. 1331 of 2001 has come to the conclusion that the
said agreement is binding upon the defendants and the plaintiff is
permitted to act upon the agreement excluding the portion where
interpolation were carried out. The plaintiff has submitted that the Civil
Application before the Hon’ble High Court was in respect of the use of
urinal. Further, in the present suit, they are asking for removal of lock
put on the gate by the defendants without following due procedure of
law.
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7. Per contra, the Advocate for the defendants has vehemently
submitted that the suit is filed in the wrong name. There is no proper
authorization to the plaintiff. The contention raised by the plaintiff in
the present suit was already considered by this court and now the First
Appeal is subjudice before the Hon’ble High Court and it is for the
plaintiff to approach the Hon’ble High Court as he has done earlier. It is
stated that the execution proceeding filed by the defendant herein is
pending. The plaintiff has not paid his dues as ordered by the Court.
In these circumstances, the plaintiff is not entitled for any equitable
relief. Moreover, the interest of the children was found paramount by
the Hon’ble High Court and if the plaintiffs are permitted to use the
premises, then the school children will suffer.
8. In the present case, the foremost objection by the
defendants is that the suit is filed in the wrong name. The suit is filed
by Shri TJ Education Society. However, the resolution authorising the
plaintiff to file suit annexed to the plaint shows that the resolution is
passed by NKT Thanawala Charitable Trust. In these circumstances, the
plaintiff is not properly authorised to file the suit. The agreement dated
04/10/2000 is between NKT Thanawala Charitable Trust and
defendants and hence the suit ought to have been filed by said Trust.
The plaintiffs have not filed suit against the Maharashtra Vidhya Vikas
Mandal with which it has entered in to an agreement and by whom the
earlier suit was filed. Therefore, the contention of the defendants that
suit is not properly instituted needs to be accepted.
9. In the present case, there was already litigation between
the plaintiff and defendants and the court has held that the agreement
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dated 04/10/2000 is binding upon the parties excluding the
interpolation carried out therein. Therefore, the plaintiff has submitted
that it is in possession of the suit premises and it is required to use the
same. Now, there was another part of the judgment that the plaintiff
was required to pay charges to the defendants and for that the
defendants were required to file execution proceedings. There is claim
made by the defendants on oath that the said charges are not paid by
the plaintiff till this date. The plaintiff has not come out with any
document to show that any such charges are being paid. The relief of
injunction being equitable relief, the said factual aspect about non
payment of dues weighs against the plaintiff.
10. In the earlier suit between the plaintiff and defendants the
judgment is passed and First Appeal is pending. In respect of the use of
the urinal, the plaintiff has approached the Hon’ble High Court by filing
Civil Application No.2035 of 2017 in First Appeal NO.1277 of 2011 and
the same was considered by the court and the orders were passed. In
this background, it was for the plaintiff to approach the Hon’ble High
Court, but it has not done so. In the said Civil Application, the Hon’ble
High Court has specifically held that the plaintiffs are not even entitled
for use of the urinals on the ground floor hall, while functions are going
on, as there was concern about the safety and security of the students
and slightest risk can not be allowed. It is also specifically held that the
appellants will not hold any function in the hall, until the final hearing
of the appeal. Further, that whether the plaintiff has any right or not
will be decided at the time of final hearing. It is also held that plaintiff
is at liberty to hold its functions elsewhere. Therefore, the Hon’ble High
Court has specifically held that the plaintiff is not entitled to hold any
functions in the suit hall. The plaintiff has nowhere stated that for what
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purpose it want to use the suit hall. When the suit hall is a marriage
hall, then definitely if the locks are removed, the plaintiff will be using
the same for said purpose and said use is not allowed. In these
circumstances, I find that the plaintiff has failed to make out any prima
facie case for granting of interim relief. There is no question of
irreparable loss to the plaintiff as the Hon’ble High Court has restrained
them from holding any function in the suit premises. Consequently
balance of convenience is also not in favour of the plaintiff. Therefore, I
have no hesitation to answer Point Nos. 1 to 3 in negative and proceed
to pass the following order.
ORDER
The Notice of Motion No.1198 of 2018 is dismissed,
accordingly disposed of.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 26/04/2018
Dictated on: 26/04/2018
Transcribed on: 02/05/2018
Signed on: 02/05/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
02/05/2018 at 5.35 p.m
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.4)
Date of Pronouncement of
Judgment/Order
26/04/2018
Judgment/Order signed by P.O.on 02/05/2018
Judgment/Order uploaded on 02/05/2018
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