Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010042762019 Presented on 16/04/2019
Registered on 16/04/2019
Decided on 12/11/2024
Duration 05Y: 06M: 26 D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
NOTICE OF MOTION NO. 1582 OF 2019
IN
SUMMARY SUIT NO. 172 OF 2019
Mr. Rajeshwar Laxmanrao Gadge, ]...Plaintiff
V/s. ]
Mr. Sanjay Katyarsingh Patil, ]...Defendant
Appearance :
Ld. advocate B. S. Patil for the plaintiff.
Ld. advocate B. S. Balla for defendant.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 12/11/2024
O R D E R
01] This notice of motion is taken out by the plaintiff to direct
defendant to furnish security to the satisfaction of Rs. 5,52,500/- i.e.
decreetal amount or on failure issue attachment warrant before
judgment under Order XXXVIII, Rule 5 (3) of Civil Procedure Code and
also attachment of warrant before judgment under XXI, Rule 46 of
C.P.C. by attaching all amounts which is lying with the Maharashtra
State Co-operative Bank Ltd., Bennet House, 2nd Floor, Shahid Bhagat
Singh Road, Opp. Lion Gate after Share Market, Fort, Mumbai-400001
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(said bank) and all other retirement dues from said Bank to the extent
of Rs. 5,52,500/-.
02] This notice of motion has taken out by plaintiff on
24/07/2019. The defendant has filed reply on affidavit and resisted the
notice of motion and prayed for dismissal of it.
03] It is submitted on behalf of the plaintiff that he has filed
suit for recovery of an amount of Rs.5,52,500/- along with interest from
the defendant. It is further submitted that plaintiff has lent an amount
of Rs.5,00,000/- to defendant on 15/04/2018 and defendant has
executed demand promissory note of said amount in favour of plaintiff.
Further, as defendant failed to repay said amount demand notice dated
10/10/2018 was issued however, defendant failed to repay said
amount. Defendant is retired from said Bank on 31/03/2019 and said
Bank will pay retirement dues to the defendant. Further, after
retirement defendant will run away with all his retirement benefits. It is
learnt that after retirement the defendant is going to settle at his native
place. Defendant has no other property in Mumbai except amount
pending with said Bank. Therefore, it is necessary to attach said
retirement amount 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. Hence, notice of
motion may be allowed.
04] On the other hand, it is submitted on behalf of the
defendant that the notice of motion filed by the plaintiff is not tenable
and he has not come before the Court with clean hands. The plaintiff
has suppressed material facts from the Court. It is further submitted
that when he was posted at Fort Branch of said Bank, he was in need of
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money i.e. Rs. 30,000/- to pay School fees of his son. Plaintiff agreed to
pay an amount of Rs.30,000/- and on believing him defendant had
signed paper to return the said amount. Defendant tried to return the
said amount in the month of May 2018. However, plaintiff avoided to
accept the said amount as he was intending to get interest on the said
amount. Plaintiff is doing business of money lending illegally. Defendant
has never borrowed an amount of Rs. 5,00,000/- from plaintiff and he
has prepared false promissory note alleging that defendant had
borrowed amount of Rs. 5,00,000/- and agreed to return it with interest
@ 18% p.a. It is further submitted that he is retired from said Bank on
31/03/2019. Further, he is entitled for his retirement dues and he is
having permanent resident at Mumbai. It is denied by the defendant
that he is going to run away with his retirement benefit to his native
place. It is further submitted that plaintiff has not made out case to
grant relief as claimed by the plaintiff in this notice of motion. Hence,
notice of motion may be dismissed.
05] Perused notice of motion, reply 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 loan
from defendant. As per the plaintiff, he had advanced loan of
Rs. 5,00,000/- to defendant and defendant had agreed to refund it with
interest at the rate of 18% p.a. in view of execution of Demand
Promissory Note. However, defendant failed to repay said loan amount.
Therefore, plaintiff had issued demand notice to call upon defendant to
repay outstanding amount, as he failed plaintiff has filed present
proceeding to recover said amount. Further, defendant is retired on
31/03/2019. As per contention of plaintiff, after retirement defendant
will run away with retirement benefits to his native place as he does not
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have any property in the Mumbai. However, defendant has submitted
that he has permanent resident at Mumbai and it is stated on affidavit.
It is also the contention of plaintiff that except retirement dues
defendant has no other property. However, as discussed above,
defendant has stated that he has property in the Mumbai.
06] As per Order XXXVIII, 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 settle at his
native place after retirement. Plaintiff has not given the name of native
place of defendant. Thus, except 'after retirement defendant is going to
settle at his native place' there is no any other reason as per plaintiff to
give direction to defendant to deposit security. Further, contended that
if defendant fails to deposit security then attachment warrant may be
issued to attach retirement dues. It is well-settled that merely having a
just or valid claim or a prima facie case, will not entitle the plaintiff to
an order of attachment before the Judgment, unless he also establishes
that the defendant is attempting to remove or dispose of his assets with
the intention of defeating the decree that may be passed. There is
nothing on record that defendant is removing or disposing of his
property that to with intention to defeat the decree.
07] Thus, I am of the view that plaintiff has not brought
sufficient material on record to show that defendant is intending to
dispose of property or going to settle at his native place to defeat the
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decree. Thus, on bare contention of plaintiff without any sufficient
material on record, he is not entitled for reliefs claimed. Therefore, I am
of the view that plaintiff has failed to satisfy that defendant intending to
dispose of his said property with intention to obstruct or delay the
proceeding. Thus, no case made out either to give direction to deposit
security or to issue attachment before judgment against the defendant.
Hence, I proceed to pass following order.
ORDER
1. Notice of Motion No. 1582/2019 is hereby dismissed.
2. Notice of Motion No. 1582/2019 is disposed of accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court, Mazgaon, Mumbai.
C.R.No.81
Date- 12/11/2024
Dictated on : 12/11/2024
Corrected & signed on : 13/11/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
14/11/2024 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
13/11/2024
JUDGMENT/ORDER signed by P. O. on 13/11/2024
JUDGMENT/ORDER uploaded on 14/11/2024
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