Order 3

Order Details: Notice of Motion
Pdf Text: 1 DRAFT NM in S.C.SUIT no.1110-20
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
DRAFT NOTICE OF MOTION
IN
SHORT CAUSE SUIT NO. 1110 OF 2020
(CNR no. MHCC01-004034-2020)
1. 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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2. 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. 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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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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3. Mr. Girish Shriniwas Nayak
Age : about 50 years,
residing at 1303, Rustomjee Regency 11 CHS,
“B” Wing, Rustomjee Acre,
Dahisar (West), Mumbai-400068.
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4. 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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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 Healthclubs 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 : 12th November, 2020.
O R A L O R D E R
1. Perused the Notice of Motion, affidavit in support
thereof and documents annexed thereto. I have heard Ld. Advocates
for both sides at length. In the Notice of Motion there are prayers
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for action against the defendants under Order 39 Rule 2-A and
Order 39 Rule 11 of the Code of Civil Procedure, 1908. In addition
thereto following prayers at clauses (c) and (d) are also made :
(c) That pending the hearing and final disposal of the present
proceedings, this Hon’ble Court be pleased to direct the
Defendants No.1 to 4 to hand over one set of keys of the
registered office of the Defendant no.7 Company at 801-813,
Mahalaxmi Chambers, 22, Bhulabhai Desai Road, Mumbai-
400 026.
(d) That pending the hearing and final disposal of the present
proceedings, this Hon’ble Court be pleased to direct the
Senior Inspector of Police, Gamdevi Police Station,
Bhulabhai Desai Road, Breach Candy, Cumballa Hill,
Mumbai-400 026, to give protection and escort to the
plaintiffs, their Chartered Accountants, Company Secretary
and staff for accessing the registered office of the Defendant
no.7 Company at 801-813, Mahalaxmi Chambers, 22,
Bhulabhai Desai Road, Mumbai-400 026, as per the Order
dated 27-10-2020 passed on Notice of Motion no.1351 of
2020
2. Ld. Advocate for the plaintiffs submits that despite order
of this Court dated 27.10.2020 in Notice of Motion No.1351 of 2020,
the defendants are not co-operating the plaintiffs in having access to
the record in registered office at Mahalaxmi Chambers. In the
affidavit along with the Notice of Motion, it is contended that due
to complete non co-operation of defendants, the plaintiffs could not
take any action to assist KPMG-a SEBI appointed Forensic Auditor.
Ld. Advocate for the plaintiffs has taken me through various
communications between authorized person of KPMG and plaintiffs
wherein it is depicted that the individual present in the registered
office of defendant no.7 Company gave evasive answers, did not co-
operate the team at the time of their visit on 10.11.2020 and also
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stated that no records were available on 8th floor. Ld. Advocate for
the defendants has submitted that they are contemplating to prefer
appeal against order dated 27.10.2020 in Notice of Motion No.1351
of 2020 and without reply of the defendants no orders can be
passed at ad-interim stage.
3. After going through the material available on record, this
Court has granted temporary injunction restraining the defendants
from preventing plaintiffs from having access to the entire record
and servers of defendant no.7 Company. From the email dated
10.11.2020 of Poonam Thakkar, the KPMG authorized person, it can
be seen that the defendants are not co-operating the plaintiffs in
having access to the record. No responsible person of defendants is
available in the registered office to give effect to the orders of this
Court in letter and spirit. Despite that the opportunity will have to
be given to the defendants to put forth their case before taking any
action under Order 39 Rule 2-A and Order 39 Rule 11 of the Code
of Civil Procedure, 1908.
4. The plaintiffs have prayed for direction to the defendants
to hand over one set of keys of the registered office of the
Defendant no.7 Company. In this regard, the parties will have to
lead evidence about the stipulations in the contract with regard to
the possession of the keys or use thereof for functioning of the
office. Therefore, this prayer can not be granted at ad-interim stage.
5. Considering all the circumstances and to give effect to
the order of this Court dated 27.10.2020 prayer clause (d) is
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granted. Police protection be given to the plaintiffs for compliance
of order dated 27.10.2020 on payment of necessary charges.
(C. V. Marathe)
Judge,
Date : 12.11.2020. City Civil Court, Gr. Mumbai.
Dictated on : 12.11.2020
Transcribed on : 12.11.2020
Signed by HHJ on : 12.11.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 12.11.2020 at 2.00 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
12/11/2020
JUDGMENT/ORDER signed by
P.O. on
12/11/2020
JUDGMENT/ORDER uploaded
on
12/11/2020
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