Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1367-20 in Suit no.8253-1996
H.C.Suit No. 4579 of 1996
1 Date :01.10.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1367 OF 2020
IN
SUIT NO. 8253 OF 1996
H.C.SUIT NO. 4579 OF 1996
(CNR MHCC01-004228-2020)
Jagdish Umeshchandra Joshi .. Plaintiff
Versus
Dr. Niranjan Umeshchandra Joshi & Anr. .. Defendants
Appearances :-
Adv. Durgesh M. Kulkarni for Defendant no. 1.
Adv. Balkrishna S. Shetty for defendant no. 2.
Adv. Shakeeb Shaikh for defendant no. 7.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 01.10.2020
ORDER
1. The defendant no. 7 has filed instant Notice of Motion for
review of order dated 17.09.2020 passed below Exh. 12 filed by
the defendant no. 2. The defendant no. 7 also prayed several
reliefs which are enumerated in the prayer clause of the Notice of
Motion.
-- 1 of 8 --
NM 1367-20 in Suit no.8253-1996
H.C.Suit No. 4579 of 1996
2 Date :01.10.2020
2. It is the contention of the defendant no. 7 that defendant no.
2 filed application seeking appropriate direction from this Court
for withdrawal of Royalty. The defendant no. 2 ought to have filed
proper Notice of Motion as per the City Civil Rule. Therefore, the
said application is not maintainable. Moreover, the said
application was not served upon any of the parties and thus, none
of the parties were granted opportunity of filing reply.
3. It is submission of the defendant no. 7 that the defendant no.
2 is not entitled for withdrawal of the amount of royalty and
defendant no. 2 did not pointed out the material facts and thus, by
misleading the Court he has obtained the order of withdrawal. It
is submitted that, as per order dated 15.06.1999, the withdrawal
of royalty was only with respect to Factory Building and it was an
interim arrangement subject to establishing the entitlement of the
defendant no. 2 before the Court Receiver. However, the
defendant no. 2 failed to produce documentary evidence to show
his entitlement of the properties which he claimed to be purchased
by himself. Hence, defendant no. 2 cannot be allowed to withdraw
the royalty amount.
4. It is further submitted that predecessor of this Court vide, its
order dated 20.10.2018, fixed royalty amount of Rs. 35,000/- p.m.
with respect to the Immovable Property and Rs. 5,000/- with
respect to Plant and Machinery. However, the Court did not fix
separate royalty amount for Trade Mark (Business). Hence,
-- 2 of 8 --
NM 1367-20 in Suit no.8253-1996
H.C.Suit No. 4579 of 1996
3 Date :01.10.2020
clarification is also required. The defendant no. 7 has challenged
the said order before Hon’ble High Court which is still pending.
Hence, the defendant no. 7 would submit that the order passed by
this Court is without considering the aforesaid facts and thus,
there is a prima-facie error on the face of record. Hence, he
prayed for recalling of order.
5. The application is opposed by the Advocate Shri. Balkrishna
S. Shetty for defendant no. 2 and Advocate Mr. Durgesh M.
Kulkarni for defendant no. 1. I have perused the Notice of Motion
as well as earlier orders passed by Hon’ble High Court as well as
by my predecessor. The advocate for defendant no. 2 filed an
application for directing Court Receiver for payment of royalty to
defendant no. 2, in view of the order dated 15.06.1999 and order
dated 20.10.2018. The Section Officer of Court Receiver was also
present on that day. In fact, the Court Receiver was seeking
clarification in respect of withdrawal of amount of royalty. This
Court, after perusing the order dated 15.06.1999 and 20.10.2018
allowed defendant no. 2 to withdraw the amount of royalty which
is fixed by my predecessor vide, order dated 20.10.2018.
6. It is pertaining to note that, the Hon’ble High Court vide,
order dated 15.06.1999 passed in Notice of Motion No. 1645 of
1999, which was filed by the present plaintiff for appointing him
as an agent of Court Receiver for Factory Premises, the Hon’ble
High Court in its Para No. 6 of the order has allowed defendant no.
-- 3 of 8 --
NM 1367-20 in Suit no.8253-1996
H.C.Suit No. 4579 of 1996
4 Date :01.10.2020
2 to withdraw the royalty amount which was directed to be
deposited by the plaintiff and the said arrangement was interim
arrangement. Thereafter, the Court Receiver called upon the
defendant no. 2 to produce documentary evidence to show
ownership of the firms which defendant no. 2 was claiming to be
his self acquired entity. However, the defendant no. 2 did not
produce any documentary evidence to that effect and accordingly,
the Court Receiver submitted itself report.
7. The aforesaid report was challenged by the defendant no. 2
before Hon’ble High Court by way of Notice of Motion No. 408 of
2006. The Hon’ble High Court vide, its order dated 23.06.2008
dismissed the said Notice of Motion and refused to release the
properties from receivership. Thus, from the aforesaid facts, it is
clear that, the defendant no. 7 nor the plaintiff or any other parties
have applied for modification of order dated 15.06.1999 by which
the defendant no. 2 was allowed to withdraw the royalty amount.
The royalty amount was fixed by my Predecessor vide, its order
dated 20.10.2018 which is challenged by the defendant no. 7.
However, as there was no stay to the aforesaid order nor there is a
challenge to the order dated 15.06.1999, hence, this Court
clarified that defendant no. 2 is allowed to withdraw the royalty
amount as fixed by my predecessor vide, order dated 20.10.2018.
-- 4 of 8 --
NM 1367-20 in Suit no.8253-1996
H.C.Suit No. 4579 of 1996
5 Date :01.10.2020
8. The defendant no. 7 filed instant Notice of Motion for review
of order dated 17.09.2020. As per Order 47 Rule 1 of Code of
Civil Procedure, the review of order is permissible only if, the
aggrieved party discover new and important material or evidence
which, after the exercise of due diligence, was not within his
knowledge or could not be produce by him at the time of passing
of the order or on account of some mistake or error apparent on
the face of the record, or for any other sufficient reasons. In my
view, there is no error apparent on the face of record. Hence,
present review application has no substance and same needs to be
dismissed.
9. As far as regarding other prayers sought by the defendant
no. 7, in my view, those are out of the purview of the Order 47 of
Code of Civil Procedure. Hence, can not be considered in this
application. The defendant no. 7 is at liberty to file appropriate
proceeding in respect of those prayers. Thus, in view of the above
discussion, I proceed to pass the following order :
ORDER
1. Notice of Motion No. 1367 of 2020 is dismissed with cost of
Rs. 1,000/- to be payable by the defendant to the DLSA
within a period of 15 days from the date of order or within a
period of 15 days from the date of regularization of the
Court.
-- 5 of 8 --
NM 1367-20 in Suit no.8253-1996
H.C.Suit No. 4579 of 1996
6 Date :01.10.2020
2. Notice of Motion No. 1367 of 2020 is disposed off
accordingly.
3. Parties to act on an authenticated copy.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 01.10.2020 Greater Bombay.
Dictated on : 01.10.2020
Typed on : 01.10.2020
Draft Submitted on : 01.10.2020
Checked on : 01.10.2020
Signed on : 01.10.2020
Uploaded on : 03.10.2020
-- 6 of 8 --
NM 1367-20 in Suit no.8253-1996
H.C.Suit No. 4579 of 1996
7 Date :01.10.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
03/10/2020 at 12.30 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
01/10/2020
JUDGMENT/ORDER signed by P.O.
on
01/10/2020
JUDGMENT/ORDER uploaded on 03/10/2020
-- 7 of 8 --
NM 1367-20 in Suit no.8253-1996
H.C.Suit No. 4579 of 1996
8 Date :01.10.2020
-- 8 of 8 --