Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.1465-2020
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.1465 OF 2020
in
L.C. SUIT NO.402 OF 2018
MCGM ]...Applicant i.e.
original defendant No.1
Versus
M/s. Venus Rubber Works ]..Non applicant
i.e. original plaintiff
Appearance:
Advocate Mr. Rajan Yadav for the applicant i.e. MCGM.
Advocate Mr. Holambe Patil for Non applicant i.e. plaintiff.
Non applicant No.2 means original defendant No.2 in person.
CORAM : S.C. Pathare, Judge
(Court Room no.5)
DATED : 7th December, 2020
ORAL ORDER
1. On behalf of MCGM i.e. original defendant No.1 this
Notice of Motion has been moved under Order 39 Rule 4 of C.P.C. for
the purpose of setting aside earlier order passed by this court under
Order 39 Rule 1 and 2 of the CPC in favour of original plaintiff i.e. non
applicant No.1 M/s. Venus Rubber Works.
2. That, original defendant (BMC) issued license u/s. 394 of
the Act to the owners of M/s. Venus Rubber Works, Shri. Suresh
Hariprasad Oza and Hariprasad Keshavlal Oza for storage of rubber
products. After death of both the said licensee Mr. Nilesh Oza applied
on 14/3/16 for transfer of said license on the name of Jyoti Oza, Rita
Oza and Nilesh Oza himself. Thereafter, the concern inspector of
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license vide letter dated 7/7/16 and 19/9/16 asked to submit
registered partnership deeds of the both outgoing and incoming
partners within 7 days. However, there was failure to produce
requisite documents within the stipulated period. Then Venus Rubber
Works informed to the officer vide letter dated 29/9/16 that
partnership deeds have been submitted to the Registrar’s office on
8/7/15 for registration in the concerned office of Registrar, it is still
pending at their end.
3. Due to said non compliance defendant issued show cause
notice dated 20/10/16. Thereafter, vide letter dated 2/1/16 Venus
Rubber Works stated that they had applied for registration of
partnership deeds on 10/10/16. However, it was understood by
defendant that no such any partnership deed was filed on 8/7/15, but
it was actually filed on 10/10/16. According to BMC Venus Rubber
Works earlier misguided in that regard to the concern officers. Due to
said misrepresentation the license of said rubber works has been
cancelled and accordingly it was informed to Venus Rubber Works vide
letter dated 9/11/16.
4. It is contended that thereafter the concerned officer
received complaint from Jitendra Ghadge (defendant No.2) regarding
reporting business in their premises without obtaining NOC of the
landlord. The litigation between Venus Rubbers vs. Parekh Estate is
pending before the Small Causes court, regarding ownership etc.
5. It is contended that after production of registered
partnership deed Venus Rubbers was directed to produce rent receipt
for showing ownership on the premises. However, Nilesh Oza denied,
as the rent was being deposited in the Small Causes court. Thereafter,
the concern inspector of D Ward again directed to produce NOC of
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Small Causes court in respect of change in constitution, as rent was
being paid in the said court. Venus Rubbers failed to submit rent
receipt as well as NOC of the said court within stipulated period.
Hence, prosecution was started against Venus Rubbers u/s. 394(1)(b)/
471 of the Act before MM Court No.42 at Shindewadi (Dadar) for
carrying business without valid license.
6. Thereafter, plaintiff instituted present suit before this
court challenging MMC order dated 10/11/16 in which injunction
order was passed dated 3/9/2018. Defendant corporation was
restrained from interfering or disturbing the permitted trade activity in
the suit shop till decision of the main suit. Further, in the said order
this court had also directed corporation to decide the issue relating to
cancellation of order of revocation and renewal of trade license of the
plaintiff by adopting due process of law.
7. After said directions corporation issued a letter to Venus
Rubbers on 25/9/18 and directed to produce documents for
restoration of said license.The Venus Rubbers neither produced any
document nor replied said letter. Thereafter, BMC issued letter on
4/10/18. By the said letter the plaintiff was informed that no reply
filed by plaintiff to letter dated 25/9/18 therefore the said license
cannot be restored by MCGM.
8. It is further contended that original plaintiff himself is not
interested in restoration of said license which is already cancelled by
MCGM. That, corporation followed the order of the court but, original
plaintiff i.e. non applicant has not followed said order as he wants
only to enjoy the fruits of the injunction order dated 03/9/18. As per
said order dated 3/9/18 the court has restrained defendant from
disturbing the permitted trade activity in the suit shop till decision of
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the suit. According to corporation the said case became different now,
due to failure on the part of plaintiff in the compliance.
9. Thereafter on 10/10/18 corporation submitted affidavit
and informed court about compliance of said due process of law. Then
on 29/11/19 corporation issued fresh notice against original plaintiff
for running business without license required u/s.394 of the Act. This
notice is in operative and the same is not challenged by plaintiff yet.
On 25/11/16 the concern officer inspected said place. Plaintiff is
dealing in hazardous rubber which is harmful to the people around
and to the said place. Storage of such dangerous rubber is illegal. The
business of plaintiff is without license. Therefore, according to
corporation the same has to be closed.
10. Thereafter, on 10/10/18 plaintiff filed application Exh.7
in court stating that he received letter from corporation dated 6/10/18
by RPAD. On 3/9/18 court had passed order to consider the
application of plaintiff for renewal of licence within 30 days. Then,
defendant corporation demanded NOC of landlord, property UID
Number and latest property tax bill. However, those documents are in
the custody of defendant No.2, therefore, plaintiff was not able to
produce those documents to the corporation. Hence, in Exh.7 plaintiff
prayed to grant 15 days time to make appropriate application to the
corporation with directions to not to call upon plaintiff to submit said
three documents. On 16/9/19 court held that such application is not
tenable because plaintiff is having appropriate remedy before MCGM.
The said order dated 16/9/19 has been challenged before Hon’ble
High Court however, till today there is no any stay. Therefore,
defendant corporation prayed that due to said non compliance on the
part of plaintiff the injunction order dated 3/9/18 be set aside, and to
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dispose of the suit. It is further prayed to strike out defence of the
plaintiff. Alongwith Notice of Motion the corporation produced
nearabout 6 documents.
11. Plaintiff submitted reply affidavit and strongly denied the
above allegations. Plaintiff prayed to reject the Notice of Motion of
corporation.
12. Defendant No.2 on 21/10/20 requested to treat his earlier
reply submiited to be Notice of Motion of plaintiff as his reply to this
Notice of Motion.
13. Heard arguments advanced by both the Ld Counsels. I
have also heard defendant No.2 in person. It is admitted position that
there is no any stay from Hon’ble High Court to this proceeding.
14. Advocate of BMC argued that it had started compliance of
the directions of the court, but original plaintiff neither submitted
reply nor submitted requisite documents. Plaintiff failed to comply the
order of the court. Therefore, he is requesting to invoke provisions of
Order 39 Rule 4 of the CPC. On the other hand, on behalf of original
plaintiff it is argued that plaintiff got injunction, however, MCGM
again demanded the same documents, those are not in the custody of
plaintiff. Therefore, according to advocate of original plaintiff
corporation is acting unlawfully and ignoring the principles of law. He
prayed to reject Notice of Motion. Original defendant No.2 (in person)
supported action taken by the corporation against the original
plaintiff. I have gone through the record.
15. Perusal of record it shows that Shri. Prakash Estate is the
landord whereas defendant No.2 is the tenant. Further, plaintiff is the
sub tenant of defendant No.2 on the basis of leave and license.
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16. So far as the provisions of Order 39 Rule 4 of the CPC is
concern, the same does not appear mandatory. Said provision is
discretionary and such discretion has to be exercised by the settled
judicial principles. Said provisions cannot be invoked when Notice of
Motion is heard by giving opportunity to the parties and then decided
by the court. Said provision may be invoked in exceptional
circumstances i.e. change in the circumstances or satisfaction of the
court that such order caused hardship to the party.
17. Perusal of order of injunction dated 3/9/18 it shows that
temporary injunction is passed till decision of the suit. In the said
order it is observed that MCGM was demanding documents from
plaintiff for renewal of his license, those were not in his custody. The
court has directed MCGM to decide the issue relating to cancellation
of order of revocation and renewal of license of plaintiff by adopting
due process of law. Now question arises whether MCGM adopted such
due process of law.
18. Perusal of letter dated 25/9/18 shows that MCGM
demanded nearabout 10 documents from plaintiff. Thereafter,
according to MCGM the plaintiff neither replied nor submitted
requisite documents hence on 4/10/18 by letter MCGM informed
plaintiff that his license could not be restored due to said reason. On
behalf of plaintiff firm (Venus Rubbers) it is argued that MCGM was
well aware about guidelines laid down in the case of M G Sarsappa
Kurup Vs MCGM (H.C. Bom.)dated 28/2/2001 wherein it is laid down
that authority cannot demand documents except proof of physical
possession for such license. Admittedly, plaintiff firm committed
mistake by not replying letter dated 25/9/18. However, fact remains
that whether MCGM considered physical possession of plaintiff over
said shop. Furthermore, nothing has come on the record whether any
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officer of said section inspected said shop for ascertaining physical
possession of plaintiff etc. over said shop.
19. Perusal of application Exh.7 it shows that it was filed by
plaintiff. On Exh.7 it was held that such application is not tenable
because plaintiff is having appropriate remedy before MCGM.
Thereafter, plaintiff filed writ petition No.13068/19 which is pending
before Hon’ble High Court. Therefore, the point whether MCGM can
demand same documents from plaintiff which are not within his
custody or power is yet to be decided by Hon’ble High Court. Under
such circumstances it would be improper at this stage to disturb
longstanding possession of the plaintiff over the said shop.
20. Admittedly, defendant No.2 Mr. Jitendra is appearing
interested in obtaining possession of said shop from the plaintiff.
However, for the reasons discussed above at this stage powers
provided under Order 39 Rule 4 of CPC cannot be invoked,
particularly when one of the material issue is pending for
consideration before the Hon’ble High Court.
21. Considering peculiar facts and circumstances, I proceed to
pass following order in the interest of justice:-
ORDER
1) Notice of Motion No.1465 of 2020 stands dismissed
and disposed of with liberty to file afresh after
disposal of w.p. No.13068/19 if required, subject to
provisions of law.
2) Plaintiff shall take care that no any untoward incident
occurs in the said shop due to his goods, otherwise he
shall be held responsible in that regard.
3) Keep suit for written statement (if any).
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4) Parties to avoid delay in the main suit.
(S.C. Pathare)
Ad-hoc Judge
City Civil Court
Typed on : 07/12/2020
Checked by PO : 07/12/2020
Signed by HHJ on : 07/12/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16/12/2020 Mrs. S.A. Shekade.
Name of the Judge (With Court
room no.)
SHRI S.C. Pathare (Court Room
No.05)
Date of Pronouncement of
JUDGEMENT/ORDER
07/12/2020
JUDGEMENT/ORDER signed by
P.O. on
07/12/2020
JUDGEMENT/ORDER uploaded on 16/12/2020
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