Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010041182018 Presented on 27/03/2018
Registered on 27/03/2018
Decided on 30/07/2024
Duration 06Y: 04M: 3D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
NOTICE OF MOTION NO. 1293 OF 2018
IN
SUMMARY SUIT NO. 83 OF 2018
Mr. Bharat Sagarmal Rathod ]...Plaintiff
Vs.
Mr. Premlal Shobhnath Yadav ]...Defendant
Appearance:-
Ld. Advocate Rajesh Patil for plaintiff.
Ld. Advocate S. K. Balodi for defendant.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 30/07/2024
O R D E R
01] This notice of motion is taken out by the plaintiff to attach
the property i.e. Room No.207, 2nd Floor, B-Wing, Sankalp Niketan,
6/24, 2nd Carpenter Street, Mazgaon, Dockyard, Mumbai – 400010
(Hereinafter referred as 'said property') of defendant as mentioned in
the schedule as per Order 38, Rule 5 (3) r/w. Order 21, Rule 43 and 54
of Civil Procedure Code (C.P.C.).
02] This notice of motion has taken out by plaintiff on
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19/03/2018. Ld. counsel for defendant has filed affidavit in reply and
resisted the notice of motion and prayed for dismissal of notice of
motion. Plaintiff has filed rejoinder to the said reply.
03] It is submitted on behalf of the plaintiff that he has filed
suit for recovery of an amount of Rs. 35,50,174/- along with interest
from the defendant. It is further submitted that plaintiff and defendant
entered into leave and license agreement on 14/12/2013 wherein
plaintiff had gave Rs. 20,00,000/- to defendant as refundable security
deposit. Defendant had agreed by affidavit dated 14/12/2013 as well as
declaration cum acknowledgment dated 23/12/2014 that he will repay
the said amount alongwith additional amount of Rs. 4,00,000/- towards
interest. However, despite of repeated request defendant failed to repay
the said amount. After repeated request defendant issued four cheques
to refund said amount which were dishonoured. Therefore, plaintiff has
filed proceeding u/s. 138 of N. I. Act against defendant. In the said
proceeding defendant was convicted on 15/03/2017 and he has
undergone said imprisonment. The defendant has admitted his liability
by issuing the cheques. However, now defendant does not want to repay
the amount to plaintiff. It is learnt that the defendant is trying to shift
along with his family and about to dispose of the said property. If
defendant removes the said property from the jurisdiction of this Court
then it will be difficult to execute the decree. The defendant is indebted
to many persons in the market and therefore, defendant is likely to
dispose of said property. Defendant has already searched the buyer and
may dispose of the property. The plaintiff has also informed to the
MHADA Authority vide Letter dated 07/12/2017 and 14/02/2018
about the malafide intention of the defendant to dispose of property.
The defendant has sold his personal tangible and intangible articles and
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now intending to sell said property with intention to avoid the
execution of decree. Therefore, it is necessary to attach said property of
the defendant before the decree in order to protect the interest of the
plaintiff. The plaintiff has made out sufficient grounds to attach the
property of the defendant. It is also necessary to restrain defendant
from creating third party in said property. Hence, Notice of Motion may
be allowed.
04] On the other hand, it is argued on behalf of defendant that
plaintiff has filed criminal complaint against him u/s. 138 of N. I. Act.
He has been convicted and he has undergone imprisonment. He also
appeared in the present suit within limitation on 12/02/2018 and also
filed reply to the Summons for Judgment taken out by the plaintiff.
Further, plaintiff has filed present suit against him on the basis of
fraudulent and dishonestly prepared document which are void and are
not enforceable in law. The plaintiff has filed this suit on the basis of
judgment passed by the Metropolitan Magistrate which is not
maintainable. It is further submitted that defendant is a permanent
School Teacher and he is living in the said property since last 40 years
with his family. He has no other alternative accommodation. The
original allotment letter of Room No. 207 is already in possession of
plaintiff which he has taken fraudulently in the year 2014. Further,
plaintiff has contended that he has paid an amount of Rs. 20,00,000/-
in cash however, he has unable to prove the same. Even, plaintiff has
violated provisions of Income Tax Act. The plaintiff has not made out
the case to attach the property of the defendant before the judgment. It
is further submitted on behalf of the defendant that plaintiff has sought
interim relief against him ex-parte on the day of filling the notice of
motion without giving him an opportunity to hear on the notice of
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motion. During pendency of suit, defendant has not attempted to
dispose of the said property. The original allotment letter is in
possession of plaintiff. Thus, plaintiff has failed to make out case to
attach said property of defendant as contended or to restrain him from
creating third party in said property. Therefore, plaintiff is not entitled
to relief claimed. Hence, notice of motion may be dismissed with costs.
05] In rejoinder, plaintiff has submitted that defendant has
made the false allegation that plaintiff has prepared false and fabricated
agreement. Plaintiff has also denied that the documents which
defendant is disputing is duly proved before the Metropolitan
Magistrate. The present suit is maintainable under Order 37, Rule 2 of
C.P.C. There is nothing in para 10 and 14 of the judgment by the
Metropolitan Magistrate that agreement executed by the plaintiff and
defendant is false and fabricated. Plaintiff has further denied that he is
in possession of original allotment letter of Room No. 207. Thus, the
defendant has failed to bring contrary material on record. On the other
hand, it is submitted by the defendant that he is not going to dispose of
the said property. Therefore, notice of motion may be allowed.
06] Perused notice of motion, reply and rejoinder and record of
the proceedings. Heard both the parties. On perusing record, it appears
that plaintiff has filed suit against the defendant for recovery of
refundable security deposit. As per the plaintiff, he had paid an amount
of Rs. 20,00,000/- to the defendant as refundable security deposit in
pursuant to leave and license agreement dated 14/12/2013. Though,
defendant had agreed to repay the same, initially he failed to repay the
said amount. Further, after request defendant issued cheques for sum of
Rs.24,00,000/- to discharge his liability. The said cheques were
dishonoured and despite of the demand notice, defendant failed to pay
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the said amount. Therefore, plaintiff has filed proceeding under 138 of
N. I. Act against defendant wherein defendant has been convicted and
undergone imprisonment. Thereafter, present proceeding is filed.
07] It is pertinent to note that as per Order 38, Rule 5 (3) of
C.P.C., property of defendant can be attached before the judgment. In
order to attach the property, plaintiff has to satisfy that the defendant
with intend to obstruct or delay the execution of decree that may be
passed against him, is about to dispose of the whole or any part of his
property or is about to remove the whole or part of the property from
the local limits of the jurisdiction of the Court. It is pertinent to note
that plaintiff has contended that he has learnt that defendant is
intending to dispose property and he has searched for proposed buyer.
It is pertinent to note that plaintiff has not given the name of proposed
buyer. Even, the plaintiff has not brought any other circumstance to
show that defendant either prior to filing the suit or after filing the suit
and before filing the notice of motion attempted to dispose of the said
property. Even, there is nothing on record to show that after filing
notice of motion defendant has attempted to dispose of the said
property. On the contrary, it appears that defendant had participated
complaint u/s.138 of N.I.Act. Even, after conviction in the said
proceeding and undergoing imprisonment, he has appeared in the
matter within time. Further, it appears that defendant has filed reply to
the notice of motion within time. This shows that it is not the intention
of the defendant to avoid or delay decree and execution. As discussed
above, plaintiff's has not brought sufficient material on record to show
that defendant is intending to dispose of property. Thus, on bare
contention of plaintiff without any sufficient material on record he is
not entitled for relief claimed. Therefore, I am of the view that plaintiff
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has failed to satisfy that defendant attempted to dispose of his said
property with intention to obstruct or delay the proceeding. Thus, no
case made out to issue attachment before judgment against the
defendant. Hence, I proceed to pass following order.
ORDER
1. Notice of Motion No.1293/2018 is hereby dismissed.
2. Notice of Motion No.1293/2018 is disposed of accordingly.
(Sangram. S. Shinde)
Adhoc Judge,
City Civil Court, Mazgaon, Mumbai.
C.R.No.81
Date- 30/07/2024
Dictated on : 30/07/2024
Corrected & signed on : 03/08/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
05/08/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri. Sangram S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
30/07/2024
JUDGMENT/ORDER signed by P. O. on 03/08/2024
JUDGMENT/ORDER uploaded on 05/08/2024
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