Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.135018
CNR No. MHCC010042862018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1350 OF 2018
IN
L.C. SUIT NO.8253 OF 1996
(HIGH COURT SUIT NO.4579 OF 1996)
Jagdish Umeshchandra Joshi ]
Indian Inhabitants, Residing at 27, ]
Umesh Dham, Street No.2, Vincent ]
Square, Dadar, Mumbai 400 014. ]...Plaintiff.
V/s.
1. Dr. Niranjan Umeshcandra Joshi, ]
Indian Inhabitants, Residing at Parel ]
Hospital, Narmada Niwas, Pardmar ]
Gunji Marg, Parel, Mumbai. ]
2. Sudarshan Umeshchandra Joshi, ]
Indian Inhabitants, 4, Atharva, Hindu ]
Colony Road No.4, Dadar, Mumbai 14. ]
3. Arvind Umeshchandra Joshi, ]
Indian Inhabitants, Residing at ]
27, Umesh Dham, Street No.2, Vincent ]
Square, Dadar, Mumbai 400 014. ]
4. Sunil Umeshchandra Joshi, ]
Indian Inhabitants, Residing at Atma ]
Shakti Vidyalaya, Koramangalam, ]
Bangalore. ]
5. Purnima Sharad Bhanvalikar, ]
Indian Inhabitants, Residing at 1/A, ]
10 Amaya Society, Behind YMCA, ]
D.N. Nagar, Andheri (W), ]
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Mumbai 58. ]
6. Shehnaz Kapadia, ]
Indian Inhabitants, Residing at ]
27/A, Mazgaon Terrace Cooperative ]
Housing Society Ltd., 3rd Floor, ]
Nesbit Road, Mazgaon, Bombay 10. ]
7. Mridula Jyoti Rao, ]
Indian Inhabitants, Residing at ]
Flat No.10, 2nd Floor, Central Bank ]
Society Building, Dadabhai Road, ]
Vile Parle (W), Mumbai 56. ]
8. Pravin Umeshchandra Joshi, ]
Indian Inhabitants, Residing at ]
Tarabaug, Gauri Mutt Street, ]
Bangalore S.K. 575 001. ]
9. Dr. Vishnu Umeshchandra Joshi, ]
Indian Inhabitants, Residing at 27, ]
Umesh Dham, Street No.2, Vincent ]
Square, Dadar, Mumbai 400 014. ]...Defendants.
Appearances:
Ld. Adv. Manoj Angre for plaintiff.
Ld. Adv. Bhatiya for defendant no.2
Ld. Adv. Shaikh for the defendant no.7.
Ld. Adv. Jayesh Shah for the proposed defendant.
CORAM : HER HONOUR JUDGE
SMT. KALPANA S. HORE
COURT ROOM NO.14
DATED : 10th OCTOBER, 2018.
ORDER
1. This is notice of motion taken by defendant no.2 for taking
contempt action against defendant no.7.
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In short, facts of the case is that :
2. Plaintiff and defendant nos.1 to 10 are sons and daughters of
deceased Umeshchandra Joshi. Suit is for administration of estate of
deceased Umeshchandra Joshi. Plaintiff claiming property Exh.A and
Exh.C are the properties of deceased Umeshcahndra Joshi and claiming
his 1/10th shares. Probated Proceedings about Will of Umeshcandra
Joshi was dismissed and hold that Will is not genuine. Exh.A property
is owned by the deceased Umeshchandra Joshi. Defendant no.2 is
claiming property Exh.C is self acquired property.
3. It is the contention of defendant no.2 that defendant nos.4, 5, 6
and 9 have executed affidavits confirming the properties mentioned in
Exh.C are properties solely belonging to the defendant no.2. Plaintiff
no.1 also by letter dated 28.01.2004 confirming the properties at Exh.C
belong to defendant no.2. It further contended that in three
Administrative Suits filed by the parties including the present suit, the
Hon'ble High Court by order dated 16.12.1996 read with order dated
20.01.1998 has appointed a Court Receiver with respect to properties
mentioned in Exh.A. It further contended that Advocate for plaintiff by
letter dated 27.10.2013 had informed the Court Receiver that
defendant nos.5, 7 and 8 have dealt with the immovable property at
serial no.13 of Exh.A. Defendant no.7 has received part consideration
amount from one Shri. Purvesh Dilip Bhanushali of Phalgar. Court
Receiver has not taken action on the basis of letter of plaintiff.
4. Defendant's contention is that defendant no.7 has herself
breached the orders of Hon'ble High Court and she dealt with the
property at serial no.13 of Exh.A and received the amounts for the
same. She has committed Contempt of Court order. Defendant no.7
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should be ordered and directed to deposit the amount of Rs.2,00,000/
and all amounts received by her. Defendant's further contention is that
defendant no.7 is fully aware that the Court Receiver is appointed in the
matter for properties and have taken formal possession of the said
property since 1996. It itself clearly shows that defendant no.7 has
committed Contempt of court order dated 16.12.1996 read with order
dated 20.01.1998. With this, prayed for directing the defendant no.7 to
deposit an amount of Rs.2,00,000/ and amount received by defendant
no.7 alongwith interest from Shri. Purvesh Dilip Bhanushali for
negotiating for the immovable property viz Agricultural Lands
admeasuring about 25 acres together with a bungalow admeasuring
3000 sq. ft. situated at Nandgaon, Manor, Palghar Taluka. It be
declared that defendant no.7 has violated the order dated 16.12.1996.
5. Defendant no.7 by filing say objected notice of motion and
contending that present notice of motion is nothing but counter claim to
the Notice of Motion no.3246 of 2015, which has taken by defendant
no.7 for issuance of contempt proceedings against defendant no.2. It
further contended that applicant is relying upon the letter dated
27.10.2013 purportedly issued by the plaintiff's Advocate to the Court
Receiver and annexed a copy of plaint in Suit No.44 of 2013 filed before
Civil Judge at Palghar. On bare perusal of said suit, it revealed that
there is absolutely no allegation against defendant no.7 and in fact
there are no reliefs claimed against defendant no.7. Defendant no.7 is
not a beneficiary under the Agreement dated 12.03.2010. After perusal
of the said suit, it appeared that defendant no.5 has attempted to sell
her 1/10th share to one Purvesh D. Bhanushali and defendant no.5
alone who has received the amount and executed the contract. It is
contended that it is pertinent to note that if the Suit No.44 of 2013
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deals with 1/10th shares of defendant no.5 only, then why would the
said Purvesh D. Bhanushali pay even a single rupee to defendant no.7.
The defendant no.7 denied that she has received any amount as alleged
in the affidavit. Defendant no.7 denied purportedly affidavit executed
by defendant nos.4, 5, 6 and 9 inter alia confirming the properties
mentioned in Exh.C belongs to defendant no.2 and do not form part of
the estate of deceased. Defendant no.7 has not received any
consideration as alleged therefore, question of violating any order of the
Hon'ble Court does not arise. With this, prayed dismissal of notice of
motion.
6. I have heard Advocate for both the parties. Advocate fo
defendant no.2 submitted that Court Receiver is appointed, defendant
no.7 cannot entered into transaction and defendant no.7 had received
the consideration from Shri. Purvesh Dilip Bhanushali. She pointed out
statement of account page no.81 of notice of motion amount of
Rs.2,00,000/ was withdrawn from account of Purvesh Dilip Bhanushali
and credited in the account of Jyotindra Rao. Jyotindra Rao is husband
of defendant no.7 then under which capacity he accepted amount so,
she submitted that it clearly shows that defendant no.7 entered into
agreement with Purvesh Bhanushali and accepted amount so, she
violated order of Hon'ble High Court.
7. Advocate for defendant no.7 submitted that if the copy of plaint
produced by defendant no.2 alongwith notice of motion i.e., a special
Suit 44 of 2013 filed before Civil Judge at Palghar, it shows that said
Purvesh Bhanushali, not claimed any relief against the present plaintiff
and defendant no.7 who is defendant no.6 in that suit. He submitted
that if plaint is perused it shows present defendant no.5 Purnima had
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entered into agreement dated 12.03.2010 in respect of her share and
thereafter, she terminated agreement to sale so, suit was filed for relief
that it be declared that defendant no.1 has no right to terminate the
said agreement dated 12.03.2010 by her notice dated 23.03.213 and
defendant no.1 be directed to specifically perform the said agreement
for sale dated 12.03.2010 and put into the actual physical possession of
the defendant no.1. He further pointed out that in plaint para no.35 it
is specifically mentioned that defendant nos.2 to 10 are not party to the
said agreement, however, in view of the facts and circumstances,
defendant nos.2 to 10 are necessary and proper parties to the suit so, no
relief is claimed against present defendant no.7 so, it cannot be said
that defendant no.7 has committed breach of order. He further
submitted that defendant no.2 has taken present notice of motion
against defendant no.7 as a counter blast to her Notice of Motion
No.3246 of 2015.
8. I have gone through order of Hon'ble High Court for
appointing Court Receiver. The defendant no.2 has not produced any
documents to show that defendant no.7 has entered into any
transaction. On the contrary, it shows that defendant no.2 himself
produced copy of plaint in Suit No.44 of 2013 filed before Civil Judge,
Palghar, which shows that present defendant no.5 Purnima entered into
agreement to sale and she terminated said agreement which in that suit
also possession was sought from the defendant no.5 and it specifically
mentioned that there are no reliefs claimed against defendant nos.2 to
10 i.e., present plaintiff, defendant nos.1 to 4 and 6 to 10, so, I find that
defendant no.7 has not entered into any agreement of sale. So far as
amount of debiting in the name of Jyotindra Rao, husband of defendant
no.7 is concerned, Agarwal has not filed affidavit that amount was
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debited in the account of Jyotindra Rao, husband of defendant no.7 for
any transaction in respect of suit property therefore, defendant no.2
cannot made capital of statement of account. On the contrary, it shows
as defendant no.7 has taken Notice of Motion No.3246 of 2015 against
defendant no.2 so, present notice of motion is taken only as a counter
blast. Therefore, I find that this notice of motion is liable to be
dismissed. Accordingly, I proceed to pass the following order :
O R D E R
1. Notice of Motion No.1350 of 2018 is hereby dismissed.
2. Notice of Motion No.1350 of 2018 stands disposed of accordingly.
( KALPANA S. HORE )
Judge,
Dated : 10/10/2018 City Civil Court, Gr. MUMBAI
Dictated on : 10/10/2018
Transcribed on : 10/10/2018
Signed on : 10/10/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
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11.10.2018 4.54 p.m. ARUN ANNAMALAI MUDALIYAR
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HHJ Smt. K. S. HORE (CR 14)
Date of Pronouncement of
JUDGEMENT /ORDER
10.10.2018
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