Order 2

Order Details: Notice of Motion
Pdf Text: 1 Draft N/M in S.C.SUIT no.1109-20
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
DRAFT NOTICE OF MOTION
IN
SHORT CAUSE SUIT NO. 1109 OF 2020
(CNR no. MHCC01-004033-2020)
1. Mr. Madhukar Vishnu Talwalkar
Age : about 87 years,
residing at C-37/40, Pandurang Society,
Near Sun-N-Sand Hotel, Juhu, Mumbai-49.
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2. Mr. Girish Madhukar Talwalkar
Age : about 59 years,
residing at 101, Disha Aprts.,
Gulmohar Cross Road No.7, Opp. Costa Coffee,
JVPD Scheme, Mumbai-28.
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3. Mr. Prashant Sudhakar Talwalkar
Age : about 58 years,
residing at 26/27, Sheesh Mahal,
Pali Hill Dmonte Park Road,
Bandra, Mumbai-50.
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Plaintiffs
Versus
1. Mr. Vinayak Ratnakar Gawande
Age : about 62 years,
residing at A-231, Twin Towers,
Twin Tower Lane, Opp. Siddhivinayk Temple,
Prabhadevi, Mumbai-400025.
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2. Mr. Harsha Ramdas Bhatkal
Age : about 58 years,
residing at N-5, Prathamesh CHS,
Off Veer Savarkar Road,
Prabhadevi, Mumbai-400025.
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2 Draft N/M in S.C.SUIT no.1109-20
3. Mr. Dinesh Shriniwas Rao
Age : about 53 years,
residing at H-304, Krishna Residency,
Atmaram Compound, Behind Sunder Magar,
Malad-West, Mumbai-400064.
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4. Mr. Ananta Ratnakar Gawande
Age : about 53 years,
residing at A-173, Twin Towers,
Twin Tower Lane, Opp. Siddhivinayk Temple,
Prabhadevi, Mumbai-400025.
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5. Mrs. Monika Khatri
Age : not known,
residing at Talwalkars Better Value Fitness Ltd.,
801-813, Mahalaxmi Chambers, 22, Bhulabhai
Desai Road, Mumbai-400 026.
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6. Mrs. Geeta Tribhovandas Canabara
Age not known, Occu : Company Secretary
Geeta Canaber & Associates
405, Suchita Business Park, Behind Neelyog
Square, Near Patel Chowk, Ghatkopar (East),
Mumbai-400 077.
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7. Talwalkars Better Value Fitness Ltd.,
801-813, Mahalaxmi Chambers, 22, Bhulabhai
Desai Road, Mumbai-400 026.
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Defendants
Appearances:-
Ld. Advocate Mr. Rajeev Matkar for the Plaintiffs.
Ld. Advocate Mr. P. D. Gandhi for Defendants no.1 to 5.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 4)
DATED : 27th October, 2020.
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3 Draft N/M in S.C.SUIT no.1109-20
O R A L O R D E R
1. The plaintiffs have prayed for appointment of Court
Receiver to forthwith take possession, custody and management of
the entire record and server of the defendant no.7 Company
including but not limited to minutes, books, income tax returns,
case papers, loan procurement papers, profit and loss accounts and
balance sheet of the Company at 801-813, Mahalaxmi Chambers 22,
Bhulabhai Desai Road, Mumbai-400026 and give its possession,
custody and management to the plaintiffs as the agents of the Court
Receiver without royalty. In the affidavit in support of Notice of
Motion, it is alleged that despite order dated 11.09.2020 of this
Court, the defendants restricted the plaintiffs from access to the
above said record of the defendant no.7 Company available at the
registered office at Mahalaxmi Chambers. Ld. Advocate for the
plaintiff has argued that due to complete non co-operation of the
defendants, the plaintiffs could not take any action to assist KPMG
and SEBI appointed forensic auditor. He has requested to grant the
prayers because there would be serious repercussions not only upon
the Company but also upon individual Directors as the offences of
non-payment of GST are Non-Bailable. Ld. Advocate for defendants
has denied the allegations of non co-operation and stated that the
defendants never restricted the access to the record of defendant
no.7 Company. He has relied upon judgment of Honourable Madras
High Court in T. Krishnaswamy Chetty Vs. C. Thangavelu Chetty
and others [AIR 1955 Madras 430] wherein the Honourable Court
has given “Panch Sadachar” i.e. five principles for appointment of
Court Receiver. According to him, the remedy for plaintiff is to file
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4 Draft N/M in S.C.SUIT no.1109-20
application for breach of order of injunction against the defendants
and Court Receiver cannot be appointed if there is other adequate
remedy. However, in the instant matter, the plaintiffs have received
notices from various Government agencies such as Income Tax
Department, banks. They apprehend that the Company as well as
individual Directors would be at risk of action for non-payment of
GST. They also allege that the defendants are not granting access to
the record of the defendant no.7 Company. If the defendants had
really co-operated for giving access to the record of the Company,
there was no occasion for appointment of the Court Receiver and to
delay the matter further. Moreover, the application for breach of
injunction may result in punishing persons committing the breach
but it may not accomplish the desired object of obtaining the record
which can be used in the proceedings against the defendant no.7
Company by various Government agencies in various tribunal/
Courts/ Offices. Therefore, this is the fit case to grant the prayers in
the Notice of Motion. Hence, following Order :
ORDER
1. Draft Notice of Motion is allowed.
2. The Court Receiver, Hon’ble Bombay High Court, is appointed
to take possession, custody and management of the entire
record and server of the Defendant no.7 Company including
but not limited to minutes, books, income tax returns, case
papers, loan procurement papers, profit and loss accounts and
balance sheet of the Company at 801-813, Mahalaxmi
Chambers 22, Bhulabhai Desai Road, Mumbai-400026 and give
its possession, custody and management to the plaintiffs as the
agent of the Court Receiver without royalty.
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5 Draft N/M in S.C.SUIT no.1109-20
3. The defendants no.1 to 4 shall disclose to the plaintiffs,
passward/code of Income Tax, GST and Service Tax for
entering into e-filing site of IT, GST and Service Tax Returns
of Defendant no.7 Company.
4. The plaintiffs shall register the Notice of Motion for statistical
purpose.
5. Costs in cause.
(C. V. Marathe)
Judge,
Date : 27.10.2020. City Civil Court, Gr. Mumbai.
Dictated on : 27.10.2020
Transcribed on : 28.10.2020
Signed by HHJ on : 29.10.2020
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6 Draft N/M in S.C.SUIT no.1109-20
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 29.10.2020 at 1.30 p.m.
NAME OF STENOGRAPHER : Mrs. G. P. Acharekar
Name of the Judge (With
Court Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
27/10/2020
JUDGMENT/ORDER signed by
P.O. on
29/10/2020
JUDGMENT/ORDER uploaded
on
29/10/2020
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