Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010044612018
CNR NO. MHCC010044612018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1412 OF 2018
IN
SUIT NO.7644 OF 1996
(HIGH COURT SUIT NO.1623 OF 1996)
1. Mrs. Banoo Merwan Aref & Ors. ]… Plaintiffs.
V/s.
Boman Diniyar Faramarzi & Ors. ]... Defendants.
Appearances :
Ld. Adv. Mr. Vishal Shah for plaintiff.
Ld.Adv. Mr. Hardik Desai for defendant No.1(b)
Ld. Adv. Mr. Dave for defendant No.3(a) to 3(d).
CORAM : HER HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 18th January, 2023
ORAL ORDER
1. The present Notice of Motion is taken out by the plaintiffs for
directing the Registrar, Accounts to release 50% payment for royalty
amount alongwith accrued interest in favour of plaintiff No.2, 3 and 4
being 1/4 share each in pursuance of the orders dated 30.01.1999 and
11.03.2010.
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2. It was submitted by the plaintiff that the present suit is
filed for dissolution of the partnership firm and further reliefs. The
plaintiffs have filed the present Notice of Motion for recalling the order
dated 31.03.2016 and permitting the plaintiffs to file affidavit of
evidence. It was submitted that the suit was earlier filed before the
Hon'ble High Court in the year 1996 and later on due to change in
pecuniary jurisdiction the matter was transferred to this Court. Pending
the suit before the Hon'ble High Court, the plaintiffs took Notice of
Motion No.1867 of 1996 before the Hon'ble High Court. As per the ad
interim order dated 07.05.1997 the Court directed the Court Receiver
to appoint an agent and to pay the royalty to the extent of 27% to the
plaintiffs and the remaining 73% to the defendant No.1 and 2. The said
order was challenged by the defendant No.1 and 2 by filing an Appeal
and as per the order dated 11.03.2010 instead of appointing an agent
defendant No.1 and 2 were directed to conduct the suit business and to
pay the 20% share in the royalty to the plaintiffs alongwith the arrears.
It was also directed that the plaintiffs can withdraw 50% of the amount
deposited without furnishing security and remaining 50% by furnishing
security till the outcome of the suit. It was further submitted that the
defendant No.1 and 2 continued to pay the Rs.1,00,000/ per month
towards the royalty. Out of the same 27% of amount i.e. 27,000/ was
deposited in the Accounts Department and out of that 50% of the
amount was released in favour of plaintiff No.1 to 4 i.e. the amount of
Rs.13,500/ jointly to plaintiff No.1 to 4. However, since the death of
plaintiff No.1 on 16.03.2008, the Registrar has not released the amount
as the share of plaintiff No.1 was not quantified and therefore, it is
necessary to direct the Accounts Department to release the 50% royalty
amount alongwith accrrued interest in the ratio of 1/4 each to plaintiff
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No.1 to 4 and to retain the share of plaintiff No.1. It was submitted that
if the royalty amount is not released in favour of plaintiff No.1 to 4 they
will suffer irreperable loss, prejudice and hence Notice of Motion be
allowed.
3. The defendant No.1(d) filed fileld reply to the Notice of
Motion and opposed the same. It was submitted that the defendant
No.1(a) and 2 being the daughter of deceased plaintiff No.1 is also
having share in the said royalty and therefore, the plaintiffs No.2 to 4
are not entitled for 1/4 share and hence the Notice of Motion be
dismissed.
4. Heard the Learned Advocate for both the parties at length.
The contents are not reproduced.
5. Admittedly, the suit bing filed by the plaintiff for
dissolution of partnership firm, as per the order in Notice of Motion
No.1876 of 1996 passed by the Hon'ble High Court dated 16.12.1998,
30.01.1999, and order dated 11.03.2010 the defendant No.1 and 2
were directed to pay the royalty amount at the rate of Rs.1,00,000/ per
month and out of the same 27% was to be released in the name of
present plaintiffs. Accordingly, it was also directed that the plaintiffs
can withdraw 50% of the amount without furnishing security and
remaining 50% of the amount by furnishing the security to the
satisfaction of the Court. Thus out of the amount of Rs.27,000/ per
month Rs.13,500/ was permitted to be withdrawn by the present
plaintiffs. It was submitted by the plaintiffs that till the death of
plaintiff No.1 they were withdrawing the amount. However, further
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amount could not be realesed by the Registrar Accounts as the quantum
of share of plaintiff No.1 was not mentioned. As such after the death of
the plaintiff No.1, the defendant No.1(a) and 2 also sought their share
in the said amount of royalty and therefore, the amount to the extent of
share of the deceased plaintiff No.1 has to be quantified on merits.
However, till that time the remaining plaintiff No.2 to 4 would be
entitled to withdraw the deposit amount alongwith accrued interest.
The contention of the defendant regarding the share can be decided on
merit. However, at this stage the plaintiff Nos.2 to 4 are being
deprived of the amount of royalty since the death of plaintiff No.1. No
harm or prejudice will cause to the defendant No.1(a) and 2, if the
plaintiffs No.2 to 4 are allowed to withdraw the amount and therefore, I
proceed to pass the following order:
ORDER
1. The Notice of Motion No.1412 of 2018 is allowed
2. The Registrar, Accounts is directed to release the ¾ amount from
the 50 percent of the amount deposited by the deft no.1 and 2
towards royalty alongwith accrued interest till date in favour of
plaintiff no.2 to 4 as per rules until further orders.
3. Parties to bear their own costs.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 18012023 City Civil Court, Gr. MUMBAI
Dictated on : 18012023
Transcribed on : 23012023
checked on : 23012023
Signed on : 23012023
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
25.01.2023 at 12.15 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of
judgment/order
18.01.2023
Judgment/order signed by P.O. on 23.01.2023
Judgment/order uploaded on 25.01.2023
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