Final Order 1

Order Details: Other
Pdf Text: Noting : 18.12.2020 1 C. R. No. 01
18/12/2020
SU- 7577/81
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is 40 years old. The parties to argue the
matter on next date without fail.
The matter is adjd for arguments to 08.01.2021.
Judge
18/12/2020
SU- 6336/04
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is adjd for dismissal to 27.01.2021.
Judge
18/12/2020
SU- 7757/85
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is adjd for dismissal to 29.01.2021.
Judge
18/12/2020
SU- 9797/82
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
Matter is 30 years old. Parties to argue the matter on
next date without fail.
The matter is adjd for arguments to 13.01.2021.
Judge
18/12/2020
SU- 7464/01
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Kohli for plaintiff present.
Adv. Yasmin Sarang for deft. present.
Ld. counsel for plaintiff seeks time for arguments.
Granted.
The matter is adjd for arguments to 11.01.2021.
Judge
-- 1 of 12 --
Noting : 18.12.2020 2 C. R. No. 01
18/12/2020
SU- 327/90
Exh.34
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is 30 years old. The parties were directed to
canvass the arguments but it seems that the parties are
not proceeding with the arguments in the matter. In the
interest of justice, the matter is adjourned. Parties to
canvass the arguments on next date.
The matter is adjd for arguments to 19.01.2021.
L.O.
Adv. Sumandevi Yadav for deft. no.3(d) present.
Adv. for deft. no.3(d) filed application for setting aside
order dated 02.03.2020.
O. - Read application. Heard the learned counsel for
defendant no.3(D). Considering the reason in the
application and interest of justice, the order closing
evidence of defendant no.3(D) on 02.03.2020 is called
back subject to deposit of cost Rs.500/- with the Legal Aid
Department of this City Civil Court.
Adv. for deft. no.3(d) filed affidavit of examination in
chief but it is not read and recorded as the deft. no.3(d)
has to comply the order below Exh.34.
The matter is adjd for compliance to 19.01.2021.
Judge
18/12/2020
SU- 242/15
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is adjd for arguments to 20.01.2021.
Judge
18/12/2020
SU- 721/16
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is adjd for evidence of plaintiff to 22.02.2021.
Judge
-- 2 of 12 --
Noting : 18.12.2020 3 C. R. No. 01
18/12/2020
SU- 2408/16
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is adjd for evidence to 02.03.2021.
Judge
18/12/2020
SU- 3463/14
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is adjd for evidence to 02.03.2021.
Judge
18/12/2020
SU- 91/16
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is adjd for evidence to 03.03.2021.
Judge
18/12/2020
SU- 8811/95
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is adjd for hearing on admission and denial to
12.02.2021.
Judge
18/12/2020
SU- 1203/20
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Singh for plaintiff present.
Adv. C.K. Tripathi for deft. present.
Ld. counsel for deft. submitted that written statement is
ready but due to non-availability of deft. for health
reason, the same could not be filed on record. He submits
that unaffirmed copy of the written statement and reply
to N/M are supplied to the counsel for plaintiff.
Ld. counsel for plaintiff confirms the same.
The matter is adjd for written statement and reply to
05.01.2021.
Judge
18/12/2020
SU- 3099/19
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Mohsin Panjwani for plaintiff present.
None for deft.
Adv. for plaintiff tendered registered N/M No.1697/20
and also the affidavit of service. T.O.R.
The matter is adjd for further order to 21.01.2021.
Judge
-- 3 of 12 --
Noting : 18.12.2020 4 C. R. No. 01
18/12/2020
SU- 1394/16
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is adjd for evidence to 22.02.2021.
L.O.
Adv. S. Ahmed for deft. present.
The matter is already adjd for evidence to 22.02.2021.
Judge
18/12/2020
SU- 7449/80
(disp. of)
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Amendment carried out in the operative part of the
judgment and decree as per the order dated 16.12.2020
in Review Petition No.24/2020.
Judge
-- 4 of 12 --
Noting : 18.12.2020 5 C. R. No. 01
18/12/2020
SU- 500/14
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
ORDER BELOW EXH.4
Heard. Plaintiff has tendered documents along with the
list Exh.4. Deft. has filed reply (Exh.4-A) to it. The deft.
objected that the document at Sr. no.1 is not properly
stamped and registered as per law. Document at Sr. no.1
is titled as loan agreement. The objection is two fold i.e.
it is not properly stamped and registered. The Ld.
Counsel for plaintiff argued that the agreement is simple
agreement and it does not require registration. The same
is governed by Article 5(b)(iv) of the Bombay Stamp Act
and therefore, proper stamp duty is affixed. She
submitted that even the document of loan agreement is
not required to be registered. She placed reliance upon
the judgment of Hon'ble Bombay High Court (1)
Hirachand Himatlal Marwari V/s. Kashinath Thakurji
Jadhav, AIR (29) 1942 Bombay 339 (2) Keshavlal Harilal
V/s. Pratapsing Moholalbhai and others, AIR 1932
Bombay 168.
The document is titled as loan agreement. Mere
nomenclature of the document is not sufficient to take
into consideration but the contents of the documents are
necessary to be looked in for ascertaining the nature of
the document. The recitals in the document shows that
defendant is one of the borrower along with her husband.
She along with her husband has taken a loan of
Rs.40 lakhs from the plaintiff and have given their
properties as a security for the due payment of the loan
amount. The plaintiff in the suit has prayed for
redemption of the mortgage amount and upon failure of
the defendant, for a decree of foreclosure and the sale of
the security premises and for payment of sale proceeds to
the plaintiff to the extent of Rs.40 lakhs along with
interest. The recital in the document of loan agreement
coupled with the pleadings shows that it is a document of
simple mortgage. As per section 59 of the Transfer of
Property Act, the mortgages of the value of Rs.100/- or
upwards to be effected by registered and attested
instrument. Section 59 of the Transfer of Property Act is
reproduced :-
“
59. Mortgage when to be by assurance. - Where the
principal money secured is one hundred rupees or
upwards, a mortgage [other than a mortgage by deposit
-- 5 of 12 --
Noting : 18.12.2020 6 C. R. No. 01
contd...
SU- 500/14
of title-deeds] can be effected only by a registered
instrument signed by the mortgagor and attested by at
least two witnesses.
Where the principal money secured is less than one
hundred rupees, a mortgage may be effected either by [ a
registered instrument] signed and attested as aforesaid,
or (except in the case of a simple mortgage) by delivery
of the property.”
Admittedly, the document at Sr. no.1 is not a registered
document. The amount in the document is more than
Rs.100/-. Section 17 of the Registration Act and 59 of the
Transfer of Property Act require such document to be
registered. The reliance of the plaintiff on the judgment
of Hirachand (Supra) is misplaced. In the case of
Hirachand, an agreement for mortgage does not give rise
to a charge over the property and therefore, it was held
that it is not compulsorily registrable. In the case of
Keshavlal (Supra), the question was altogether different.
The issue was relating to the subsequent agreement by
which, certain change in earlier contract was sought. It
was held that an agreement to make certain change in
earlier contract can be admitted in evidence without
registration. Therefore, with greatest of respect, above
judgments are not applicable in the case in hand. So far
as the stamp duty is concerned, the mortgage deed are
governed by Article 40 of the Bombay Stamp Act. In this
case, where the possession is not given, Article 40 (b) of
the Act would be applicable. The Article 40(b) of the Act
existing at the time of agreement i.e. before the
amendment is reproduced.
“
40. MORTGAGE DEED, not being an agreement relating
to Deposit of Title Deeds, Pawn or Pledge of
Hypothecation (Article 6), Bottomry Bond (Article 14),
Mortgage of a Crop (Article 41), Respondentia Bond
(Article 53), or Security Bond or Mortgage Deed (Article
54) -
(b) when possession is not given or agreed to be given as
aforesaid. [Ten rupees for every rupees five hundred or
part thereof for the amount secured by such deed, subject
to the maximum of 2,00,000 rupees.]”
After considering the above provision, it is clear that
the stamp duty of Rs.4,000/- was required to be affixed
on the document at Sr. no.1. Thus, on the count of
insufficient stamp duty and for want of registration, the
-- 6 of 12 --
Noting : 18.12.2020 7 C. R. No. 01
contd...
SU- 500/14
Exh.6
Exh.7 colly.
Exh.8
Exh.9 colly.
document at Sr. no.1 cannot be marked as exhibit.
Document at Sr. no.2 is an acknowledgment of debt.
The defendant has taken the objection on the count that it
is a forged document. The document is on a plain paper.
As per Article 1 of the Bombay Stamp Act, there should
have been the payment of proper stamp duty. In absence
of the same, the document cannot be marked as exhibit.
Document at Sr. no.3 is also an acknowledgement
of debt on Rs.100/- stamp. It is duly stamped as per
Article 1 of the Bombay Stamp Act, hence the document is
marked as exhibit.
Document at Sr. no.4 is office copy of letter sent
by the plaintiff through his advocate along with postal
receipts, courier receipt and courier acknowledgment.
There is sufficient evidence to that effect and there is no
impediment in marking this document as exhibit.
Document at Sr. no.5 is admitted by defendant,
hence there is no impediment in marking that document
as exhibit.
Document at Sr. no.6 is the office copy of the letter
issued by the advocate of the plaintiff along with courier
receipt. There is evidence to that effect and the same is
not seriously disputed by defendant. Therefore, that
document is marked as exhibit.
Copy of acknowledgment cum confirmation of debt.
Copy of letter along with original postal and courier
receipts and original acknowledgment cards.
Copy of the letter.
Copy of the letter.
The matter is adjd for cross examination to 11.02.2021.
Judge
18/12/2020
SU- 1094/18
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is adjd for framing issues to 22.02.2021.
Judge
18/12/2020
SU- 1181/18
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is adjd for framing issues to 22.02.2021.
-- 7 of 12 --
Noting : 18.12.2020 8 C. R. No. 01
Judge
18/12/2020
SU- 1376/18
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is adjd for framing issues to 23.02.2021.
Judge
18/12/2020
SU- 2097/18
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is adjd for framing issues to 23.02.2021.
Judge
18/12/2020
Exe. Apln.
19/18
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
Issue reminder to Court receiver for filing the report.
The matter is adjd for report to 01.02.2021.
Judge
18/12/2020
SU- 2882/18
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Sameer Sawant for plaintiff present.
Adv. Anand Pai along with Adv. Deepak Sharma i/b. DMS
Legal for deft. nos.1 to 9 present.
Heard argument of Ld. Counsel for plaintiff and deft.
nos.1 to 9 on N/M No.4434/18 and N/M no.3479/19.
The matter is adjd for order on N/M No.4434/18 and N/
M no.3479/19 to 08.01.2021.
Judge
18/12/2020
SU- 2883/18
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. Sameer Sawant for plaintiff present.
Adv. Anand Pai along with Adv. Deepak Sharma i/b. DMS
Legal for deft. nos.1 to 9 present.
Heard argument of Ld. Counsel for plaintiff and deft.
nos.1 to 9 on N/M No.4435/18 and N/M no.3458/19 .
The matter is adjd for order on N/M No.4435/18 and N/
M no.3458/19 to 08.01.2021.
Judge
-- 8 of 12 --
Noting : 18.12.2020 9 C. R. No. 01
18/12/2020
SU- 3293/14
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is adjd for Ch/sum hearing to 22.02.2021.
Judge
18/12/2020
SU- 153/18
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
The matter is adjd for Ch/sum hearing to 24.02.2021.
Judge
18/12/2020
Stamp No.
5164/20
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
Adv. M. Dudhani along with Adv. Babita Kesarwani for
plaintiff present.
Adv. Ekta Tripathi for deft. nos.1 and 2 present.
Adv. Khare for deft. no.3 present.
Ld. counsel for plaintiff seeks time for hearing and for
filing written statement to counter claim. Granted.
The matter is adjd for N/M hearing and for filing written
statement to counter claim to 08.01.2021.
Judge
18/12/2020
Stamp No.
6908/19
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
Plaintiff to remove office objection and get the suit
registered by next date.
The matter is adjd for compliance to 22.02.2021.
Judge
18/12/2020
Stamp No.
7391/19
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
Plaintiff to remove office objection and get the suit
registered by next date.
The matter is adjd for compliance to 22.02.2021.
Judge
-- 9 of 12 --
Noting : 18.12.2020 10 C. R. No. 01
18/12/2020
Stamp No.
7545/19
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
Plaintiff to remove office objection and get the suit
registered by next date.
The matter is adjd for compliance to 22.02.2021.
Judge
18/12/2020
Stamp No.
9332/19
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
Plaintiff to remove office objection and get the suit
registered by next date.
The matter is adjd for compliance to 22.02.2021.
Judge
18/12/2020
Stamp No.
9333/19
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
Plaintiff to remove office objection and get the suit
registered by next date.
The matter is adjd for compliance to 22.02.2021.
Judge
18/12/2020
Stamp No.
9334/19
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
Plaintiff to remove office objection and get the suit
registered by next date.
The matter is adjd for compliance to 22.02.2021.
Judge
18/12/2020
Stamp No.
5161/20
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None present.
Plaintiff to take steps to register the suit.
The matter is adjd for steps to 24.02.2021.
Judge
-- 10 of 12 --
Noting : 18.12.2020 11 C. R. No. 01
18/12/2020
Session Case
983/04
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
APP for State absent.
Accused on bail absent.
Adv. Bhanushali for accused present.
The matter is adjd for arguments to 21.12.2020.
Judge
18/12/2020
Session Case
984/04
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
APP for State absent.
Accused on bail absent.
Adv. Pasbola for accused present.
The matter is adjd for arguments to 21.12.2020.
Judge
-- 11 of 12 --
Noting : 18.12.2020 12 C. R. No. 01
18/12/2020
SU- 1111/20
CORAM : H.H.J.SHRI M. S. AZMI (C. R. NO. 01)
None for plaintiff.
Adv. Chavhan for deft. present.
F.R.S.R. following order is passed -
ORDER
1. N/M No.1429/20 is made absolute in terms of prayer
clause (a).
2. Costs in the cause.
The matter is adjd for framing issues to 12.02.2021.
Judge
Completed.
-- 12 of 12 --