Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1455-2020 in Suit no.8253-1996
H.C.Suit No. 4579 of 1996
1 Date :19.10.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1455 OF 2020
IN
SUIT NO. 8253 OF 1996
(H.C.SUIT NO. 4579 OF 1996)
(CNR MHCC01-004436-2020)
Jagdish Umeshchandra Joshi .. Plaintiff
Versus
Dr. Niranjan Umeshchandra Joshi & Ors. .. Defendants
Appearances :-
Ld. Adv. Durgesh Kulkarni I/b D.S. Sabnis for defendant no.1.
Ld. Adv. Balkrishna S. Shetty for defendant no.2.
Mr. Shakeeb Shaikh, Counsel i/b. Ld. Adv. Mangesh Nalawade for
defendant No.7.
Mr.Vitthal Dudhani representative of Court Receiver High Court,
Bombay.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 19.10.2020
ORDER
1. The defendant no. 7 has filed instant Notice of Motion
seeking following reliefs :
a) That pending the hearing and final disposal of this
suit, this Hon’ble court be pleased to revoke / cancel
the liberty of withdrawing royalty amount given to the
defendant no. 2 (Mr. Sudarshan u. Joshi) vide, order
dated 15.06.1999 passed in this suit.
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b) That pending the hearing and final disposal of this
suit, this Court be pleased to restrain by an order of
temporary injunction the Respondent viz. The Ld.
Court Receiver from paying royalty amount in relation
the factory premises or under any other name to
Defendant No. 2 (Mr. Sudarshan U. Joshi).
c) That pending the hearing and final disposal of this
suit, this Hon’ble Court be pleased to restrain
Defendant No. 2 (Mr. Sudarshan U. Joshi) from
withdrawing payment of royalty amount from the Ld.
Court Receiver in relation to the factory premises or
under any other name.
d) That pending the hearing and final disposal of this
suit, this Hon’ble Court be pleased to direct the
respondent viz. The Ld. Court Receiver to invest the
royalty amount in relation to the factory premises or
under any other name.
e) That pending the hearing and final disposal of this
suit, this Hon’ble Court be pleased to direct defendant
no. 2 (Mr. Sudarshan U. Joshi) to re-deposit royalty
amounts so withdrawn by him till date as per
undertaking given to the Court in terms of Order dated
15.06.1999.
f) For ad-interim and interim reliefs in terms of prayer
clause (a) to (e) above.
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g) Costs of the Notice of Motion and order to be made
thereon be provided for.
h) For such further and other reliefs as the nature and
circumstances of the case may require.
2. It is contended by the defendant no. 7 that, the plaintiff and
defendant no. 1 to 9 are the siblings. Initially, defendant no. 7
filed Suit No. 222 of 1988 (High Court Suit No. 2623 of 1988) for
administration of the estate of her father late Umeshchandra
Madhav Joshi
(hereinafter called as “the deceased”). Thereafter,
the defendant no. 6 filed Suit No. 336 of 1988 (High Court Suit
No. 137 of 1988). Thereafter, present plaintiff and defendant no.
8 and 9 filed another Civil Suit No. 8253 of 1996 (High Court Suit
No. 4579 of 1996) for administration and partition of the estate of
the deceased. Subsequently, the other 2 plaintiffs were added as
defendant no. 8 and 9 in Suit No. 8253 of 1996. In view of the
order dated 16.11.2020 passed by the Division Bench of Hon’ble
Bombay High Court, all the three suits were clubbed together and
the matter was expedited.
3. It is submitted that the deceased died on 23.11.1983, leaving
behind him various properties mentioned in Exh. A as well as Exh.
C. of schedule annexed with the plaint. It is submitted that, there
is no dispute that the properties mentioned in Exh. A were
ancestral properties. However, the properties mentioned in Exh. C
of the schedule, defendant no. 2 claimed to be acquired by his own
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funds. Thereafter, in view of order dated 16.12.1996 passed in
Suit No. 8253 of 1996, the Court Receiver was appointed in
respect of estate of the deceased described in Exh. A and Exh.C to
the plaint. Under the said order, defendant no. 2, who was in
possession of the factory premises situated at Village Aliyali,
Palghar was allowed to act as an agent of Court Receiver, subject
to the payment of royalty and compensation. At the same time,
the Court Receiver was directed to hold an inquiry as regards the
status of properties mentioned in Exh.C, with a direction to release
the said properties, in the event, the defendant no. 2 succeeds in
establishing that these properties are purchased by him from his
own funds.
4. It is submitted that, the aforesaid order dated 16.12.1996
was challenged by the defendant no. 1 and defendant no. 2 by
preferring an Appeal No. 30 of 1997. The Hon’ble High Court
maintained order dated 16.12.1996 with modification to the
extent that defendant no. 2 is allowed to act as an Agent of the
Court Receiver with respect to assets of ‘Ramtirth International’,
‘Ramtirth Export’ and the property set out in Exh.C to the plaint of
Suit No. 8253 of 1996, without payment of the royalty and
compensation. The aforesaid order dated 16.12.1996 was
modified by order dated 05.02.1997. The Notice of Motion No.
103 of 1997 was made absolute vide, order dated 20.01.1998 with
specific liberty to the parties to take out fresh proceedings after the
Court Receiver submits his report.
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5. It is submitted that, the defendant no. 2 vide, his letter dated
11.03.1997 informed to the Court Receiver that, he is not willing
to act as an Agent of the Court Receiver and requested the Court
Receiver to take physical possession of the factory premises
including the plant and machinery. Thereafter, the present plaintiff
took out Notice of Motion No. 1645 of 1999 seeking necessary
orders and direction for allowing him to act as an Agent of the
Court Receiver to run the said factory.
6. The Hon’ble High Court vide, its order dated 15.06.1999,
appointed the plaintiff as an Agent of the Court Receiver in respect
of factory premises with the plant and machinery and the business
of ‘Ramtirth Yogashram’ on payment of royalty. In the said order,
the defendant no. 2 was claiming to be owner of properties
mentioned in Exh.C. Therefore, the Hon’ble High Court allowed
the present defendant no. 2 to withdraw the royalty amount with
respect to the factory building only as fixed by the Court Receiver.
The aforesaid withdrawal of royalty amount was subject to the
defendant no. 2, giving written undertaking that he would bring
back money with interest if so, ordered by the Court.
7. In the meantime, around 2005, the Court Receiver,
concluded his inquiry and prepared his report wherein the Court
Receiver arrived at a decision that the properties mentioned in
Exh.C can not be released from receivership as they are not bought
from the personal funds of the defendant no. 2. Being aggrieved
by the aforesaid inquiry report, the defendant no. 2 took out
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Notice of Motion No. 408 of 2006 seeking revocation of
appointment of the Receiver with respect to properties mentioned
in Exh.C.
8. The Hon’ble High Court vide, its order dated 23.06.2008
rejected the said Notice of Motion No. 408 of 2006 on the ground
that, the defendant no. 2 failed to prove that, the properties
mentioned in Exh. C are acquired through his personal income.
The order dated 23.06.2008 was challenged by the defendant no.
2 by preferring Appeal No. 87 of 2009, which was subsequently
withdrawn in terms of order dated 05.10.2009.
9. It is submitted that, in the meantime, the matter was
proceeded and the evidence of the parties was going on. On
17.09.2020, Advocate for the defendant no. 2 filed an application
dated 15.09.2020 (Exh.12) seeking directions from this Court
against the Court Receiver to make payment of royalty to the
defendant no. 2, as per order dated 15.06.1999 and 20.10.2018.
This Court allowed the defendant no. 2 to withdraw the royalty
amount as fixed by order dated 20.10.2018. The defendant no. 7
being aggrieved by the said order, preferred revision vide, Notice
of Motion No. 1367 of 2020. However, the said revision was
dismissed by this Court vide, order dated 01.10.2020. In the
aforesaid order, this Court granted liberty to file an appropriate
application for agitating issue of modification of order dated
15.06.1999. Therefore, in view of said liberty, the defendant no. 7
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filed instant Notice of Motion with reliefs as mentioned in the
prayer clause.
10. It is argued by Ld. Counsel, Shri. Shakeeb Shaikh for
defendant no. 7 that, the withdrawal of royalty amount was
subject to the defendant no. 2 proving his entitlement over the
properties mentioned in Exh.C of the plaint. However, he failed to
prove the same. Hence, in view of the subsequent event, the order
dated 15.06.1999 needs to be revoked, cancelled and modified.
11. It is further contended that, the Hon’ble High Court vide, its
order dated 23.06.2008, specifically rejected the prayer of
defendant no. 2 from releasing the properties mentioned in Exh.C
from receivership on the ground that, the defendant no. 2 failed to
prove his ownership qua Factory premises. Therefore, the question
of paying royalty amount with respect to factory premises does not
arise at all and the defendant no. 2 is no more entitled to
withdraw the royalty amount with respect to factory premises.
Therefore, the order dated 15.06.1999 needs to be alter to that
extent.
12. It is further submitted that, admittedly, the defendant no. 2
failed to prove his ownership on the factory premises and
therefore, the factory premises would fall under estate of the
deceased and thus, all heirs and representatives of the deceased
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are equally entitled to the royalty amount. Thus, the royalty
amount withdrawn by the defendant no. 2 till February 2018 is
illegal and in order to save the interest of all the parties, the
defendant no. 2 should be directed to deposit the amount so
withdrawn with interest.
13. It is further submitted that, inspite of properties of the
deceased were
custodia legis and it was the duty of Court Receiver
to protect the same. As soon as the Court Receiver came to the
conclusion that, the defendant no. 2 is not the owner of the factory
premises, immediate steps ought to have been taken by the Court
Receiver to stop the payment of royalty with respect to factory
premises. However, neither Court Receiver nor any of the parties
to the suit takes action in this regard. Nevertheless, it is the time
to protect the estate of the deceased.
14. It is further submitted that although the properties
mentioned in Exh.C was
custodia legis, the defendant no. 2
without permission of the Court, created third party interest with
respect to flat at Atharva Building which was the part of Exh.C.
and sold the same to the newly added defendant no. 10. Thus,
prima-facie, irreparable harm has been done by the defendant no.
2 to estate of the deceased. Therefore, the defendant no. 7 prayed
for allowing the present Notice of Motion.
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15. Ld. Advocate Shri. Balkrishna Shetty for defendant no. 2
opposed the Notice of Motion by filing Affidavit in reply. It is
contended by the defendant no. 2 that, the instant proceeding is
nothing but contempt of order dated 15.06.1999 and 20.10.2018.
The order dated 15.06.1999 has attained finality which has been
accepted and acted upon and since 1999 till February 2018, the
defendant no. 2 has been allowed to withdraw the royalty amount.
Hence, on this count itself, the Notice of Motion needs to be
dismissed with compensatory cost.
16. It is further contended that, the properties mentioned in Exh.
C were subsequently added by the defendant no. 7 in her suit by
way of amendment. The aforesaid properties mentioned in Exh.C
were belonging to him and same were unnecessarily drag in the
suit by the defendant no. 7. It is further submitted that the
plaintiff himself consented vide, order dated 28.01.2004 for
releasing the property mentioned in Exh.C, then, there is no
question of objecting by the defendant no. 7. The properties with
Court Receiver which is self-acquired properties and he is in need
of royalty amount for survival. The deceased never had any export
business which was done by him and he has expanded his business
with his hard work and acquired the property mentioned in Exh.C.
Hence, he is entitled for the withdrawal of royalty amount with
respect to factory premises.
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17. It has been urged by the defendant no. 2 that, the present
Notice of Motion filed by defendant no. 7 indirectly seeking an
order from this Court as if, sitting in the Appeal. The order dated
15.06.1999 has attained finality and prayer of Notice of Motion
amounts to contempt of the Court, hence, defendant no. 2 prayed
for dismissal of the Notice of Motion.
18. I have heard both the parties. It is the matter of fact that,
the defendant no. 7 has filed Suit No. 222 of 1988 for
administration of estate of her father. The defendant no. 6 also
filed Suit No. 336 of 1988 and present plaintiff alongwith
defendant no. 8 and 9, have filed Suit No. 8253 of 1996 for
administration and partition of the properties mentioned in Exh. A
and C of the plaint.
19. It is not in dispute that, initially the defendant no. 2 claimed
that the properties mentioned in Exh. C were purchased by him
out of the income derived by him from ‘Ramtirth International’ and
‘Ramtirth Export’ which is his self acquired property. It is also not
in dispute that, the Hon’ble High Court vide, its order dated
16.12.1996 has appointed the Court Receiver and the defendant
no. 2 was appointed as an Agent of the Court Receiver with respect
to the factory premises situated at Village Aliyali, Palghar.
However, as the defendant no. 2 showed his unwillingness to
continue as an Agent of the Court Receiver, therefore, application
made by the plaintiff by way of Notice of Motion No. 1645 of 1999
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and thus, the plaintiff was appointed as an Agent of Court Receiver
with direction to deposit the royalty amount as fixed by the Court
Receiver. The ad-hoc royalty was fixed by the Court Receiver,
which was allowed to be withdraw by the Hon’ble High Court vide,
its order dated 15.06.1999 and in view of the aforesaid order, the
defendant no. 2 was allowed to withdraw the royalty amount.
20. I have perused the order dated 15.06.1999 passed in Notice
of Motion No. 1645 of 1999. The Prayers in the said Notice of
Motion were as under :
a) Plaintiff no. 1 should allowed to carry on business as an
Agent alongwith factory premises including the Plant and
Machinery and raw materials lying and situated at Village Aliyali,
Palghar.
b) Plaintiff no. 1 should be permitted to carry on business on
‘Ramtirth Yogashram’ on payment of royalty and compensation to
the Receiver.
c) The order of injunction against the defendant no. 2 from
using trademark and brand name belonging to the deceased i.e.
‘Ramtirth Yogashram’ or on the brand name deceptively similar
thereof.
21. The Hon’ble High Court while granting the prayer clause (a)
of the plaintiff, it has been held in para no. 6 of the said order
which is reproduced her as under :
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Para 6 : Now turning to prayer (a), it is the case of the
plaintiffs that the factory premises, plant and machinery
are lying idle at Palghar and therefore, the plaintiffs
should be allowed to use the same on conditions of the
security and license as fixed by the receiver. The prayer
is contested by defendant no. 2 on the ground that the
factory premises were purchased by him by raising a loan
and most of the machinery belong to him which he
acquired with the help of the Bank loan. It seems that
the bank has filed a suit against defendant no. 2 for
recovery of the said amount and the suit is pending. On
the other hand, the plaintiffs contend that the factory
was acquired by the 2nd defendant with the money
siphoned of from the estate of the deceased. It is their
case that the plant and machinery belong to the firm of
the deceased i.e. Shri. Ramtirth Yogashram’. In view of
these contentions, I feel that ends of justice would be
served, if the royalty amount as fixed by the receiver in
respect of the factory building is allowed to be
withdrawn by the 2nd defendant by way of interim
arrangement subject to filing a written undertaking that
he would bring back the money with interest, if so
ordered by the Court. As regards the amount of royalty
in respect of the plant and machinery, business etc. same
to be invested by the Court Receiver. Prayer (a) is
accordingly granted subject to above modification”.
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22. It is further not in dispute that, the Hon’ble High Court vide,
its order dated 16.12.1996 directed the Court Receiver to hold an
inquiry whether the properties mentioned in Exh.C were acquired
by the defendant no. 2 from his firm viz. ‘Ramtirth Yogashram’ or
‘Ramtirth International’ or ‘Ramtirth Export’. Thus, in view of both
the above orders, the defendant no. 2 was allowed to withdraw the
royalty amount with respect to factory premises only by way of
interim arrangement and, till defendant no. 2 establishes his claim
with respect to the properties mentioned in Exh.C.
23. It is also not in dispute that the Court Receiver conducted
inquiry and submitted his report in the year 2005, wherein, the
Court Receiver came to conclusion that the defendant no. 2 failed
to establish his claim with respect to properties mentioned in
Exh.C. Thus, in view of the above, it is clear that, since submission
of Court Receiver report, the defendant no. 2 was not authorized
or allowed to withdraw the royalty amount. Unfortunately, neither
Court Receiver nor any of the parties filed any application for
modification of the aforesaid interim arrangement. Even, after
passing of order dated 23.06.2008, in Notice of Motion No. 408 of
2006, whereby the properties mentioned in Exh.C. were
specifically rejected from releasing from the receivership,
thereafter also, the defendant no. 2 was allowed to withdraw the
royalty amount and none of the parties have objected for the same.
Be that as it may be but, at the same time it is necessary to protect
the property of deceased till the decision of the suit. As the
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defendant no. 2 failed to prove his entitlement to the factory
premises. Hence, the royalty amount with respect to factory
premises is an amount to which all the legal heirs of the deceased
are entitled. Therefore, I am of the view that, it is necessary to
alter the order dated 15.06.1999.
24. The contentions of defendant no. 2 that, the order dated
15.06.1999 attained finality can not be accepted in view of the
specific observation of the Hon’ble High Court in its para no. 6.
The Contention of the defendant no. 2 that properties mentioned
in Exh.C including factory building, are his self acquired property,
cannot be allowed to raise as said issue was already concluded by
the Court Receiver’s report.
25. It is the matter of record that, although the entire property is
custodia legis, the defendant no. 2 without consent of the Court
have sold the flat at Atharva Building to defendant no. 10 and
appropriated the sale proceeds. The aforesaid attitude of the
defendant no. 2 shows that he has no regards to the orders of the
Court. In view of the fact that, the defendant no. 2 failed to prove
his entitlement over the factory premises and he has withdrawn
the royalty amount in respect of factory premises till February
2018. In my view, it is necessary to direct him to deposit the
amount which has been withdrawn by him together with interest
at the rate 12% p.a., so that the interest of all the parties would be
safe guarded. Thus, in view of the aforesaid discussion, I proceed
to pass the following order :
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ORDER
1. Notice of Motion No. 1455 of 2020 is hereby allowed in
terms of prayer clause “a”, “b”, “c” and “e”.
2. The defendant no. 2 is directed to re-deposit the Royalty
amount as withdrawn by him, together with the interest @
12% p.a. within a period of 3 months from the date of
order or from the regularization of the Court.
3. The defendant no. 2 to deposit the aforesaid amount with
Court Receiver and after deposit, the Court Receiver to
invest the same as done with respect to royalty of other
heads.
4. Parties to bear their own cost.
5. Notice of Motion No. 1455 of 2020 is disposed of
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 19.10.2020 Greater Bombay.
Dictated on : 19.10.2020
Typed on : 22.10.2020
Draft Submitted on : 23.10.2020
Checked on : 23.10.2020
Signed on : 23.10.2020
Uploaded on : 23.10.2020
Corrected on : 29.10.2020
Corrected copy uploaded on : 29.10.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
29/10/2020 at 1.00 p.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
19/10/2020
JUDGMENT/ORDER signed by P.O.
on
23/10/2020
JUDGMENT/ORDER uploaded on 29/10/2020
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