Order 1

Order Details: Notice of Motion
Pdf Text: NM NO.140818 IN SUM. SUIT NO.653405
CNR : MHCC010044412018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1408 OF 2018
IN
SUMMARY SUIT NO.6534 OF 2005
(H.C.SUIT NO.1729 OF 2005)
Dhanjibhai N. Babaria
of Bombay, an adult, Indian Inhabitant,
having his address at Karanjia building,
3rd floor, flat no.4, Moulana Shukat Ali
Road, Gnat Road, Mumbai 400 007 .. Plaintiff
Versus
1. Vishwas Kisan Zende
of Mumbai, an adult, Indian Inhabitant,
was residing at Room No.3, Municipal
Building No.A1, Opp. Bhawani Nagar,
Marol Maroshi Road, Andheri East,
Mumbai400059 and at present native
place
2. Ajay Shankar Pawar
of Mumbai, an adult, Indian Inhabitant
residing at Room No.9, Municipal Bldg.
No.A1, Opp. Bhawani Nagar, Marol
Maroshi Road, Andheri East,
Mumbai 400 059. .. Defendants
Appearances:
Mr. Dubey, Advocate for defendant.
CORAM : SMT. S.S. NAGUR,
ADHOC JUDGE &
ASST. SESSIONS
JUDGE,
(C.R.NO.13)
DATE : 20/12/2018
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NM NO.140818 IN SUM. SUIT NO.653405
ORDER
1) This Notice of Motion is filed by applicant
(defendant No.1) to refund the amount deposited by him in the
court. He also prayed that as the balance amount is deposited is
of defendant No.1. Therefore, to pay him and not to defendant
No.2. The defendant No.1 has also affirmed affidavit in support
of Notice of Motion. He stated that from his salary the BMC has
deducted amount of Rs. 3,667/ per month from December
2007 till February 2010. The total amount of Rs.99,009 / is
deducted from the salary of defendant No.1 which has
deposited in the account of Sheriff of the Mumbai. The plaintiff
has withdrawn Rs.33,003/ from total amount of Rs.95,342/
which is lying with the defendant No.1 from office of Sheriff,
Mumbai and the remaining amount of Rs.66,006/ is pending in
the office of Sheriff.
2) The Hon'ble High Court was pleased to set aside
the decree after the deposit of Rs. 1 Lac by defendant No.1. The
said amount was deposited by defendant by way of pay order
drawn on Jankalyan Sahakari Bank Ltd in favour of
Prothonotary and Senior Master drawn on Sakinaka branch
bearing No.170852 dated 06.07.2010. The plaintiff has no
objection for entire balance amount after receiving an amount
of Rs.1,40,000/. Hence, prayed to allow the application.
3) The report of Registrar and the Sheriff office was
called. The report of Sherrif office dated 09.03.2018 shows that
the balance amount of Rs.62,339/ is lying with the office till
date after payment of Rs.33,003/ to the plaintiff. The notice
was issued to the plaintiff. The report of service of notice shows
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that the plaintiffs are not residing in the given address since last
six to seven years.
4) The suit was restored after order was set aside as
per the order of Hon'ble High Court. The consent terms arrived
between the parties. The plaintiff in para no.4 (i & ii) of the
consent terms agreed that
“(i) further an amount of Rs.1,40,000/
towards balance decreetal amount be
paid over to the plaintiff immediately
and for which the defendants has no
objection towards balance decree;
(ii) the plaintiff has no objection for
entire balance amount after receiving an
amount of Rs.1,40,000/ as set out
herein above reaming amount along
with accrued interest, if any, after
encashment of the fixed deposit
immediately be paid over to the
defendants.”
5) The report of Sheriff clearly shows that the amount
of Rs.95,342/ was deposited by BMC by deducting the salary of
defendant No.1 and the balance amount of Rs.62,339/ is lying
with them. The Registrar of City Civil Court, Mumbai has
reported that the amount of Rs.1,40,000/ is paid to the
plaintiff Mr. Dhanjibhai N. Babaria, D758 on 30.1.2018. The
applicant /defendant No.1 is claiming the amount which is
lying with the Sheriff office i.e. 62,339/. The said amount
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belongs to the defendant No.1. Hence, he is entitled for the
withdrawal of the said amount. Hence, pass following order:
O R D E R
a) Notice of Motion No.1408/18 is allowed.
b) The Sheriff office of City Civil Court is directed to
refund the balance amount of Rs.62,339/
deducted by BMC from the salary of defendant
No.1 on proper verification.
( S.S.NAGUR )
AdHoc & Asst.
Sessions Judge
Dt.: 20/12/2018 City Civil Court,
Gr. Mumbai
Dictated on : 20/12/2018
Transcribed on : 21/12/2018
Signed on : 21/12/2018
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NM NO.140818 IN SUM. SUIT NO.653405
(As per office circular no.25 of 2016 and 20 of 2016, dated 20.12.2016 issued by
IC Registrar)
“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : 21.12.2018 & 3.24 p.m.
Name of Steno with Post. : Mrs. Shobha Ashok Shekade,
Stenographer (LG)
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur (CR no. 13)
Date of pronouncement of Judgment/order : 20.12.2018
Judgment /order signed by the P.O. on : 21.12.2018
Judgment /order uploaded on : 21.12.2018
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