Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1415/20, 1537/20 in S.C.SUIT no.1099/20
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 1415 OF 2020
(CNR no. MHCC01-004393-2020)
AND
NOTICE OF MOTION NO. 1537 OF 2020
(CNR no. MHCC01-004640-2020)
IN
SHORT CAUSE SUIT NO. 1099 OF 2020
(CNR no. MHCC01-003693-2020)
Jayashree Vijaykumar Joglekar
Age : about 66 years,
residing at Flat no.B-3, First Floor,
Sahakar Niwas, V. S. Agashe Path,
Behind Portuguese Church,
Dadar (West), Mumbai-400028.
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Plaintiff
Versus
1. Chandrashekhar Sitaram Joglekar
Age : about 65 years,
residing at 8/28, Ashirwad, Opposite
Vidhyabhavan School, Ghatkopar (East),
Mumbai-400077.
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2. Nutan Chandrashekhar Joglekar
Age : about 62 years,
residing at 8/28, Ashirwad, Opposite
Vidhyabhavan School, Ghatkopar (East),
Mumbai-400077.
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Defendants
Appearances:-
Ld. Advocate Mr. Rajeev Matkar for the Plaintiff.
Ld. Advocate Mr. Sandip Jalan for Defendants
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 4)
DATED : 9th November, 2020.
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2 N/M 1415/20, 1537/20 in S.C.SUIT no.1099/20
O R A L O R D E R
1. In the instant suit, the defendants have filed counter
claim and also filed Notice of Motion for temporary injunction. For
clarity the parties herein are referred to as ‘plaintiff’ and
‘defendants’ as per their status in the plaint. The subject matter of
the plaint and counter claim is “twin commercial units forming
single Shop No.15 and 16, Ram Niwas, Ranade Road, Dadar,
Mumbai-400028” (hereinafter “Suit Shop”). According to the
plaintiff, the suit shop was run by her husband late Vijaykumar
since 1999-2000 and after his death the plaintiff continued the
business in the suit shop. The defendant no.1 is brother of late
Vijaykumar and defendant no.2 is a wife of defendant no.1. after
death of late Vijaykumar, the defendant no.1 helped the plaintiff in
running the business for few days but the defendants are now
claiming share in the suit shop and they are obstructing peaceful
possession of the plaintiff over the suit shop & business. Therefore,
the plaintiff has prayed for temporary injunction restraining the
defendants from entering upon the suit shop till final disposal of the
suit.
2. The defendants have also filed Notice of Motion no.1415
of 2020 claiming their possession over the suit shop and they have
prayed for mandatory injunction allowing them to run the business
in suit shop as per the oral understanding between the plaintiff and
defendants dated 11.02.2020. They have also prayed for appointment
of Court Receiver, Court Commissioner and direction to the plaintiff
to deposit the entire amount of the sales effected in the months of
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3 N/M 1415/20, 1537/20 in S.C.SUIT no.1099/20
August and September 2020 and thereafter. They have also prayed
for temporary injunction restraining the plaintiff from creating third
party right in the suit shop.
3. After going through pleadings of both sides, it can be
seen that late Vijaykumar took over business in the suit shop after
the death of mother Pramila S. Joglekar on 28.09.1998. The
defendants have produced on record Affidavit-cum-Declaration
executed by Smt. Sushma Suresh Patankar, the present defendant
no.1 and the husband of plaintiff wherein the earlier two persons
have granted no objection to transfer the registration certificate of
the suit shop in the name of late Vijaykumar. In that Affidavit, it is
clearly mentioned that prior to the death the business in the suit
shop was run by the late Pramila, the mother of late Vijaykumar
and defendant no.1. All the certificates, licences depict name of late
Vijaykumar thereafter till his death in the in the year 2019. The
defendants have come up with the case that after the death of late
Vijaykumar they have paid electricity bill, they have given
intimation to enter the name of defendant no.1 in the licence under
The Maharashtra Shops and Establishments (Regulation and
Employment and Condition of Service) Act, 2017 and they have also
claimed that they paid salary of the employees of the suit shop.
According to them, the plaintiff prevented them from entering the
shop on 03.08.2020. From the above contentions and material
available on record, the suit shop as well as the business appears to
be joint family property of the plaintiff and defendants. The
defendants have share in the suit shop. The plaintiff claims that the
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4 N/M 1415/20, 1537/20 in S.C.SUIT no.1099/20
defendants have no interest in the business does not hold any water
in the backdrop that the business was run in the suit shop by
parents of defendant no.1 and late Vijaykumar. Even though, the
defendants have share in the suit shop, if they are permitted to
enter in the suit shop, there will be chaotic situation which will no
be beneficial to either parties. Therefore, to protect the interest of
the parties in the suit shop following order is passed :
ORDER
1. The Notice of Motion no. 1415 of 2020 and Notice of Motion
no.1537 of 2020 are partly allowed.
2. The Court Receiver, Honourable Bombay High Court, is
appointed to keep the accounts of the suit shop with all the
powers under Order 40 Rule 1 of Code of Civil Procedure,
1908 by appointing the present plaintiff namely Jayashree
Vijaykumar Joglekar as an agent of the Court Receiver to
carry on the business in the suit shop till final disposal of the
suit.
3. Other prayers are rejected
4. Costs in cause.
sd/-
(C. V. Marathe)
Judge,
Date : 09.11.2020. City Civil Court, Gr. Mumbai.
Dictated on : 09.11.2020
Transcribed on : 09.11.2020
Signed by HHJ on : 10.11.2020
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5 N/M 1415/20, 1537/20 in S.C.SUIT no.1099/20
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 10.11.2020 at 12.41 p.m.
NAME OF STENOGRAPHER : Mrs. G. P. Acharekar
Name of the Judge (With
Court Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
09/11/2020
JUDGMENT/ORDER signed by
P.O. on
10/11/2020
JUDGMENT/ORDER uploaded
on
10/11/2020
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