Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.1473/2020 in Sum. Suit No.181/2020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1473 OF 2020
CNR NO.: MHCC010044352020
IN
SUMMARY SUIT NO. 181 OF 2020
Yallapa Pochchapa Jadhav ...Plaintiff
Versus
Rohini Ramakant Chavan ...Defendant
Appearances:-
Advocate Mr. Rajesh Patil for the plaintiff.
Advocate Mr. Avinash Zodge for the defendant.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 9th NOVEMBER, 2020.
ORAL ORDER
This Notice of Motion filed by plaintiff to direct defendant to
deposit security for a sum of Rs.2,99,000/- or issue warrant of
attachment before judgment against her immovable property or restrain
defendant from creating any third party right in her property.
2. Plaintiff has stated that defendant has signed and executed
Demand Promissory Note of Rs.2,00,000/- in favour of plaintiff and
declined to make payment for the Demand Promissory Note. Plaintiff
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has further stated that even after receipt of legal notice, defendant
neglected to pay for the Demand Promissory Note. Plaintiff has further
stated that defendant may intentionally sell her all properties and assets
and likely to take the moneys away outside the jurisdiction of the Court
and defendant has no intention to repay the legitimate claims of
plaintiff. Plaintiff has further stated that the defendant’s sole intention is
to avoid the execution of decree. Plaintiff has further stated that
plaintiff is apprehending and sensing danger that defendant in all
probabilities will make attempts to fabricate documents or transfer the
suit properties in favour of third party. Plaintiff has further stated that
defendant is so desperate to sell the said flat and may dispose of her
furniture, fixtures in her possession of that flat. Plaintiff has further
stated that if defendant succeeds to dispose of the only room then it will
not be possible to execute the decree and prayed to allow Notice of
Motion.
3. Defendant has filed reply to this Notice of Motion and stated that
her Advocate had sent reply to plaintiff’s notice dated 16.01.2020 by
post and has filed written complaint against plaintiff in Vishnu Nagar
Police Station, Dombivali. Defendant has further stated that she has
made complaint against the investigation officer of Vishnu Nagar Police
Station in the Commissioner of Police Office, at Thane. Defendant has
stated that she has taken criminal legal action against plaintiff in the
criminal appropriate Court under Sections 420 and 406 of the Indian
Penal Code and under other Sections of IPC. Defendant has further
stated that summons copy for the suit was also not sent to defendant
and department’s concerned officer intentionally doing illegal work with
the defendant. Defendant has further stated that when plaintiff is
claiming 18% interest then where is his certificate under Money
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Lender’s Act. Defendant has further stated that the expert report must
be necessary for the writing, overwriting, date and signature on the
promissory note. Defendant has further stated that plaintiff’s promissory
note is bogus. Defendant has further stated that plaintiff is liable to be
prosecuted under various other Acts and prayed for rejection of the
Notice of Motion.
4. It appears, plaintiff has filed the present Summary Suit claiming
amount of Rs.2,99,000/- along with interest from defendant. Plaintiff
has stated that defendant may intentionally sell her movable and
immovable properties. Merely because plaintiff feel that defendant may
sell her properties, her properties cannot be attached. Plaintiff has to
show sufficient circumstances which show that defendant is about to
dispose of her property. Plaintiff has stated that defendant was working
with Deputy Chief Electrical, Engineer’s Office, at Matunga and residing
at Dombivali. Plaintiff has stated there is room in the name of
defendant. Plaintiff has not given any descriptions of any such room nor
any documents showing that any room is standing in the name of
defendant. No circumstances are brought on record which show that
defendant is going to dispose of her property. There are no affidavits of
any third party filed on record supporting case of plaintiff that
defendant is about to dispose of her property. There are no additional
circumstances brought on record to show that defendant is about to
transfer her property and such transfer is with an intention to delay or
defeat plaintiff’s claim. Therefore, there are no reasonable grounds to
attach or pass injunction order against alleged property of defendant for
a decree which may in future can be passed of Rs.2,99,000/-.
5. Ld. Counsel for the defendant has cited judgment of Hon’ble
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Andhra High Court in case of Y. Kesavulu vs. T. Kalavathi in Civil
Revision Petition Nos. 4915 of 2015 decided on 1 June, 2016, in which
it is held that,
“it is well-settled that merely having a just or valid claim
or a prima facie case, will not entitle the plaintiff to an order of
attachment before judgment, unless he also establishes that the
defendant is attempting to remove or dispose of his assets with the
intention of defeating the decree that may be passed.” In the case in
hand also, plaintiff has failed to establish that defendant is attempting
to remove or dispose of her assets with the intention of defeating the
decree that may be passed against her.
6. As discussed above, plaintiff has failed to show and satisfy that
defendant is about to remove or dispose whole or part of her properties
with an intention of obstructing or delaying the execution of any decree
that may be passed against her. Therefore, there are no reasonable
grounds to pass any order of attachment before judgment and grant
other reliefs claimed in the Motion. Hence, following order :
ORDER
Notice of Motion No.1473 of 2020 is rejected.
(SONALI P. AGARWAL)
Judge,
Date: 09.11.2020. City Civil Court,
Gr. Bombay.
Dictated on : 09.11.2020
Transcribed on : 09.11.2020
Signed on : 09.11.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11.11.2020 At 12:42 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ SONALI P. AGARWAL
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
09.11.2020
Judgment/Order signed by P.O. on 09.11.2020
Judgment/Order uploaded on 11.11.2020
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