Final Order 1

Order Details: Notice of Motion
Pdf Text: N.M.No.1585/19 in Commercial Suit No.04/19 1
CNR.NO.MHCC01 0043002019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1585 of 2019
IN
COMMERCIAL SUIT NO. 04 of 2019
Mansukhlal Umarshi Shah .... Plaintiff
Versus
Mr. Rajiv Kantilal Gogri. …. Defendants
Adv. Gada for plaintiff.
Adv. Niranjan Lapasiya for defendant.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Judge
CR no. : 32
Dated : 02nd May, 2019
ORDER
Plaintiff taken out this motion for pending the hearing and final
disposal of the suit
(a) The Defendant be directed to disclose on oath all the estates and
assets owned or inherited by him including all the movables and
immovables including (I) Shop No.12, Ground Floor, Paras Niketnan,
Chheda Nagar, Chembur, Mumbai400 089, (ii) Shop No.13 Ground
Floor, Paras Niketan, Chheda Nagar, Chembur, Mumbai 400 089 and
(iii) Shop No.14, Ground Floor, Paras Niketan, Chheda Nagar,
Chembur, Mumbai 400 089 and (iv) Block/Flat No.2, CWing, Paras
Niketan, Chheda Nagar, Mumbai89 all standing on Plot bearing City
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N.M.No.1585/19 in Commercial Suit No.04/19 2
Survey No.661 of Chembur Division.
(b) To order the defendant to furnish security sufficient to satisfy to
claim of plaintiff in this suit.
(c) To issue order and direction for attachment before judgment in
respect of (I) Shop No.12, Ground Floor, Paras Niketnan, Chheda
Nagar, Chembur, Mumbai400 089, (ii) Shop No.13 Ground Floor,
Paras Niketan, Chheda Nagar, Chembur, Mumbai 400 089 and (iii)
Shop No.14, Ground Floor, Paras Niketan, Chheda Nagar, Chembur,
Mumbai 400 089 and (iv) Block/Flat No.2, CWing, Paras Niketan,
Chheda Nagar, Mumbai89 all standing on Plot bearing City Survey
No.661 of Chembur Division and Flat no.2 C wing Paras Niketan
Chheda Nagar, Mumbai89.
(d) To restrain defendants their agent, servant, employees or any
other person claiming through them for under it from creating third
party rights in favour any other person or part with possession in
respect of hop No.12, Ground Floor, Paras Niketnan, Chheda Nagar,
Chembur, Mumbai400 089, (ii) Shop No.13 Ground Floor, Paras
Niketan, Chheda Nagar, Chembur, Mumbai 400 089 and (iii) Shop
No.14, Ground Floor, Paras Niketan, Chheda Nagar, Chembur, Mumbai
400 089 and (iv) Block/Flat No.2, CWing, Paras Niketan, Chheda
Nagar, Mumbai89 all standing on Plot bearing City Survey No.661 of
Chembur Division.
2. Plaintiff came to know that Flat No.9 was mortgage with
the State Bank of India but on 18.04.2018 Shri. Kantilal Gorgri
released his 50% share in Flat No.9 to Rajiv Gogri and Rajiv Gogri
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N.M.No.1585/19 in Commercial Suit No.04/19 3
had sold his share in Flat No.9 to Shri. Sameer Menon on
25.04.2018. The contention of the plaintiff is that defendants are
intending to sell or dispose of Shop No.12 standing in the name Priti
Rajiv Gogri, Shop No.13 standing in the name of Kantilal Gogri, Shop
No.14 standing in the name of Rajiv Kantilal Gogri. The intension of
defendant to disposed the property is to cause obstruction or delay in
execution of decree that may be passed against them in the matter.
Hence prays that motion be made absolute in terms of prayer clause.
3. Heard Ld. Adv. Gada for plaintiff and Adv. Niranjan
Lapasiya for defendant.
4. The writ of summons and motion is yet not served on the
defendants. Then also Ld. Adv.Shri. Lapasiya appeared in the matter
and tendered vakalatnama and argued the motion.
5. Flat No.9 which was mortgaged with State Bank of India.
Flat No.9 was released to Kantilal Gogri and Rajiv Kantilal Gorgri the
patterns of M/s Amrut Marketing. On 18.04.2018 Kantilal released his
50% undevided share to Rajiv Gogri by released deed (Exh4) and
thereafter Rajiv Gogri sold his 50% share in Flat No.9 to Shri. Sameer
Menon on 25.04.2018 by registered sale deed (Exh5).
6. Defendant is Rajiv Kantilal Gogri karta of Rajiv Kantilal
Gogri(HUF). HUF consists all members of the family of Gogri and not
individual. Ld. Adv.Shri.Gada for the plaintiff submitted that
defendants are intending to sell Shop No.12 to 14 but Shop No. 12 to
14 are standing in the name of different persons. Shop No.12 and 14
are standing in the name of Priti Gogri and Kantilal Gogri respectively.
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N.M.No.1585/19 in Commercial Suit No.04/19 4
No particulars are stated by the plaintiff to whom defendants are
intending to sell the above mention shops. A mere allegation that
defendants are selling of their properties are not sufficient to show a
fraudulent intention. A mere fact of transfer of property is not enough
to show a fraudulent intention as nobody can be prevented from
dealing with their property simply because a suit has been filed. It is
not the case of the plaintiff that after service of summons on
defendants, they have transferred a major portion of properties and
they are an embarrassed financial position on the other hand it appears
that defendants had sold 50% share in Flat No.9 in the year 2018.
7. From the averment of the plaintiff in the plaint as well as
motion no body can legitimately be drawn that object of the defendant
was to delay and defeat the plaintiff's claim. As such there are no
requisite circumstances exist to pass an order of ad interimreliefs of
attachment before judgment in respect of the premises as mention in
para(a)(b)(c)(d) of the motion. Hence I pass the following order.
ORDER
1. Notice of Motion No.1585/2019 is dismissed with cost.
Date : 02/05/2019 (Pushpa N. Rao)
Ad hoc Judge
Bombay City Civil Court
Greater Mumbai.
Dictation Direct typed on computer : 02.05.2019
Signed by HHJ on : 02.05.2019
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N.M.No.1585/19 in Commercial Suit No.04/19 5
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
UPLOAD DATE AND TIME : 02.05.2019 at 5.33 P.M.
NAME OF THE STOP GAP STENOGRAPHER : Mrs. P.S.Mahale
Name of the Judge (With Court room
No.)
HHJ Smt.Pushpa N Rao
C.R.No.32
Date of Pronouncement of
JUDGMENT/ORDER
02.05.2019
JUDGMENT/ORDER signed by
P.O.on
02.05.2019
JUDGMENT/ ORDER uploaded on 02.05.2019
.
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