Order 1

Order Details: Notice of Motion
Pdf Text: NM 1361-18 in Suit no.2297-2015
1 Date :29.01.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1361 OF 2018
IN
SUIT NO. 2297 OF 2015
(CNR MHCC01 0043142018 )
Smt. Manjula Yeshwant Mohite .. Plaintiff
Versus
Smt. Sadhana Raju Mohite & Anr. .. Defendants
Appearances :
Adv. Shashank Chaudhari for plaintiff.
Adv. Mr. P.G. Sawant for defendant no. 1 and 2.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 29.01.2020
ORDER
1. The defendant no. 1 has filed instant Notice of Motion
praying following reliefs.
(a) This Hon’ble Court may be pleased to call for record
and proceedings from the Hon’ble Court Receiver and
after perusing the records and proceedings and hearing
both the sides cancel / modify the order dated
05.02.2018 passed by Hon’ble Court Receiver, Bombay.
(b) Pending the hearing and final disposal of this Notice of
Motion this Hon’ble Court be pleased to stay the
operation of the order dated 05.02.2018 passed by the
Hon’ble Court Receiver, Bombay High Court.
(c) Adinterim relief in terms of prayer clause (b) above be
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granted.
(d) Any such other and further reliefs as in the nature and
circumstances of the case may require be granted.
2. It is contended by the defendant no. 1 that plaintiff who is
her mother in law filed present suit under section 6 of Specific
Relief Act for recovery of possession of suit premises. This Court
vide, order dated 23.08.2017 passed in Notice of Motion no. 4075
of 2015 thereby appointed Court Receiver and she has been
appointed as an agent of Court Receiver. At the same time, this
Court directed the Court Receiver to fix monthly royalty as per
market rate after making preliminary inquiry.
3. It is contended by the defendant no. 1 that she is residing in
the suit premises alongwith her two children and defendant no. 2
frequently visiting the suit premises. The plaintiff in collusion with
the defendant no. 2 filed instant suit. She is working as maid
servant for her livelihood. In view of the order dated 27.08.2017,
the Court Receiver passed an order on 05.02.2018 fixing royalty of
Rs. 20,500/ per month which is exorbitant, unfair and illegal.
The defendant no. 1 is not a position to pay such exorbitant
royalty amount. The valuation made by the valuer M/s. Nadkarni
& Co. is incorrect and improper with intention to help the plaintiff.
The report prepared by the Valuer is not as per factual aspect and
real situation. The suit premises is surrounded by the slum and
polluted. There is no Commercial area nearby, inspite of the that
the Valuer find locality as commercial. In fact the suit flat is
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situated in the building consisting of 23 floors constructed prior to
10 to 15 years. The carpet area of the suit flat is taken as 309 sq.
ft. In fact, the suit flat is in SRA Scheme having 259 sq. ft. area.
The building does not have parking place and regular water
supply. The suit flat situated in SRA Scheme and as per Section
33(10) DCR Guidelines issued by the Government of Maharashtra,
and Slum Act, no person can give a tenament on leave and license
basis. The valuer consider only single sale instance and on the
basis of which exorbitant royalty amount has been fixed by the
Court Receiver vide order dated 05.02.2018 and therefore, the
order dated 05.02.2018 needs to be modified / cancelled.
Therefore, the defendant no. 1 prayed for allowing th present
Notice of Motion.
4. The Notice of Motion is opposed by the plaintiff by filing say.
The plaintiff supported the order dated 05.02.2018 passed by the
Court Receiver. Hence, the plaintiff prayed for dismissal of Notice
of Motion.
5. Heard both the sides. Perused Notice of Motion and reply.
The defendant no. 1 filed instant Notice of Motion for setting aside
or modifying order dated 05.02.2018 whereby, Court Receiver
accepted the report of valuer and fixed royalty of suit premises as
Rs. 20,500/ per month to be payable by the defendant no.1 from
August 2015.
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6. I have perused the Order dated 05.02.2018. It appears that
defendant no. 1 have participated in the proceedings for fixation of
royalty. The Court Receiver after considering the report prepared
by the valuer and after considering the 3 sale instances came to
the conclusion that the suit flat can fetch royalty @ 55/ per sq. ft.
The defendant no. 1 did no challenge the order appointing Court
Receiver and also participated in the proceedings. Moreover, the
defendant no. 1 failed to point out rate by which the royalty can be
fixed as fair and reasonable. Therefore, in my view, I do not find
any substance in the contention of the defendant no. 1 that the
royalty fixed by the Court Receiver is exorbitant.
7. Ld. Advocate for the defendant no. 1 contended that during
pendency of the trial, the aforesaid order dated 05.02.2018 be
stayed till the decision of the suit. I do not find any substance in
the aforesaid request as there is no basis for seeking such relief. If
the defendant no. 1 is aggrieved by the order appointing Court
Receiver, she could have challenged the same. The defendant no.
1 not only participated in the royalty fixing proceeding but her
advocate on her behalf also made statement that he will furnish
the draft agency agreement. In my view, the Notice of Motion is
after thought and misconceived. Hence, Notice of Motion needs to
be dismissed.
ORDER
1. Notice of Motion No. 1361 of 2018 is hereby dismissed with
cost.
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2. Notice of Motion No. 1361 of 2018 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 29.01.2020 Greater Bombay.
Dictated on : 29.01.2020
Typed on : 31.01.2020
Draft Submitted on : 31.01.2020
Checked on : 03.02.2020
Signed on : 03.02.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
05/02/2020 at 11.30 a.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
29/01/2020
JUDGMENT/ORDER signed by P.O.
on
03/02/2020
JUDGMENT/ORDER uploaded on 05/02/2020
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