Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1551/2019 in Suit 3207/2012
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1551 OF 2019
IN
SUIT NO. 3207 OF 2012
(H.C. SUIT NO. 1036 OF 2012)
CNR NO. : MHCC010041202019
Asawari Salil Pednekar & Anr. ...Plaintiffs
Versus
M/s. Zenal Constructions Pvt. Ltd. & Anr. ...Defendants
Appearance:
Mr. Makarand Bakore, Advocate for the Plaintiffs.
Mr. Kunal Rane, Advocate for Defendant No.2.
CORAM :SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 08/01/2020
ORAL ORDER
1. The notice of motion is filed by the plaintiff to discharge the
Court Receiver, High Court, Bombay appointed in respect of suit
flat no. 104, 1st Floor, BWing, Kamdhenu Building, Eksar Road,
Babhai Naka, Borivali (W), Mumbai 400 092 along with stilt
parking space no. 1 pursuant to the filling of the Consent Terms
between plaintiffs and defendant no. 2.
2. The notice of motion is supported by affidavit of Asawari
Salil Pednekar. She on oath stated that the notice of motion no.
1122 of 2012 was filed by the plaintiff in the present suit seeking
temporary relief. The defendant no. 2 society admitted that the
society has no claim on the said suit flat. The statement of
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defendant no. 2 is recorded in the order dated 24.01.2012 passed
in notice of motion no. 1122 of 2012 by the Hon'ble High Court.
3. The Court Receiver was appointed by the Hon'ble High Court
by order dated 21.02.2012, with a direction to hand over the keys
to the plaintiffs who shall hold the flat as an agents of the Court
Receiver without security or royalty. The plaintiff was granted
possession through the Court Receiver, High Court, Bombay. The
Hon'ble High Court by order dated 05.03.2015 allowed the notice
of motion no. 1122 of 2012 thereby restraining the defendants
from disturbing the plaintiffs' possession over the said suit flat and
creating third party interest over the suit flat.
4. The consent term was arrived between the plaintiff and the
defendant no. 2 and the same was taken on record on 10.01.2019.
Therefore, the plaintiff prayed to discharge the receiver. The
defendant no. 1 is disputing the consent terms arrived between the
plaintiff and the defendant no. 2. The defendant no. 2 filed reply
and stated that they leave it to the Court to decide the notice of
motion and appropriate order may be passed.
5. Heard advocate for the plaintiff and advocate for defendant
no. 2. Perused the notice of motion on record.
6. The consent terms are arrived between the plaintiff and
defendant no.2 society. The defendant no. 1 is contesting the suit.
The defendant no. 1 is a builder, who has executed agreement for
sale dated 04.04.2008 with the plaintiff. The plaintiff has sought
relief against the defendant no. 1 directing him to comply his
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statutory obligation under the Maharashtra Ownership of Flats Act,
1963 and permit the plaintiff to use and occupy the suit premises.
7. I have gone through the order of the Hon'ble High Court in
Notice of Motion No. ... of 2012 in Suit (Lodg.) No. 3398 of 2011
dated 21.02.2012. Para no. 5 of the order states that, “In the
circumstances, the Court Receiver, High Court, Bombay is
appointed as a receiver of the suit flat with a direction to hand
over the keys thereof to the plaintiffs, who shall hold the flat
as agents of the Court Receiver but without security or royalty.
It is the plaintiffs' responsibility to occupy the same in
accordance with law”.
8. The receiver is appointed to hand over the possession of the
suit flat to the plaintiff. The plaintiff has to hold the said
possession as an agent of the Court Receiver. Therefore, unless the
suit is disposed of between the parties, the Court Receiver cannot
be discharged. The prayer of the plaintiff to discharge the Court
Receiver on the ground that there is consent terms between the
plaintiff and the defendant no. 2 society. The Court Receiver
cannot be discharged as defendant no. 1 is contesting the suit,
which could be gathered from para 6 of the affidavit in support of
notice of motion. The defendant no. 1 filed reply to the consent
terms and objected the consent terms. Hence, pass the following
order:
ORDER
1. The notice of motion is rejected.
2. No order as to cost.
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3. Accordingly, notice of motion is disposed of.
(Smt. S.S. Nagur)
Adhoc Assistant Sessions Judge
Gr. Mumbai.
Dictated on : 08/01/2020.
Typed on : 08/01/2020.
Sign on : 08/01/2020.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
10/01/2020 3.00 p.m. Prachi Y. Potdar (H.G.)
Name of the Judge HHJ Smt. S.S. Nagur
(CR No.13)
Date of Pronouncement of
Judgment/Order.
08/01/2020
Judgment/order signed by P.O on 08/01/2020
Judgment/order uploaded on 10/01/2020
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