Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1692 OF 2019
IN
S.C.SUIT NO.680 OF 2017
Maljibhai Khimji Boricha ... Plaintiff
Versus
1. Shilpa Kishore Rathod and Ors. ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 21st JUNE, 2019
Advocate Ms.Sanjukta Dey with adv.Mr.Redekar for Plaintiff.
Advocate Mr.P.D.Gandhi for Defendant no.16.
O R D E R
1. This notice of motion is taken out by plaintiff praying that
this Court should hold that defendant no.16, its director, agents have
committed act under the Contempt of Courts Act for removal of board
of Court Receiver from the suit property and further they should be
benefited for said in accordance with law. Plaintiff has further prayed
for direction to Court Receiver to visit suit property with the assistance
of concerned police station and to make report to the Court about
present status of suit property.
2. Divaliben Naresh Rathod, C.A. of plaintiff, has filed
affidavit in support of notice of motion that in Notice of Motion
No.1206/2017 Court passed order dated 20/02/2018 for appointment
of the Court Receiver. Said order is challenged by defendant nos.1 to 8
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before the Hon'ble High Court by filing Appeal from Order bearing
Stamp No.7887/2018. Thereafter the defendant no.16 has taken out the
chamber Summons and got impleaded as party to the suit. Hence,
defendant no.16 is aware of the order dated 20/02/2018 passed by the
Court. Defendant no.16 has also filed AO Stamp No.35886/2018 before
Hon'ble High Court and same is pending. Meanwhile plaintiff came to
know that the board of Court Receiver from suit property has been
removed by defendant no.16 and thereafter as requested by plaintiff
Court Receiver visited the suit premises on 21st March, 2018, 19th July,
2018 and 16th February, 2019. However, representatives of defendant
no.16 are not allowing Court Receiver to enter into suit property.
Therefore, this notice of motion is taken out as plaintiff intends that
defendants should not take law in their hands.
3. Defendant no.16 has filed reply and resisted the notice of
motion contending that allegations made in notice of motion are false
and it is further contended that Court Receiver was never possessing
suit property. Measurements of suit property are given and the very
maintainability of notice of motion is challenged by filing detail
affidavit of reply by defendant no.16.
4. Heard the plaintiffs' advocate Mr.Redekar and defendants'
advocate Mr.P.D.Gandhi. Perused plaint and order dated 20th February,
2018 passed by my learned predecessor and documents annexed to the
plaint. It was submitted by advocate Mr.Redekar on behalf of plaintiff
that defendant no.16 has removed the board of Court Receiver and
representatives of defendant no.16 are not allowing Court Receiver to
visit suit premises therefore notice of motion is necessary to be made
absolute.
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5. In reply, advocate Mr.Gandhi submitted that this notice of
motion is the notice of motion taken out for contempt of Court order,
however this is not the notice of motion filed under Order39 of CPC. It
is argued that only Hon'ble High Court can take cognizance of the
alleged criminal contempt committed under contempt of Courts Act.
Hence, according to Mr.Gandhi present notice of motion is not
maintainable. It is pointed out that two proceedings in respect of appeal
against order filed by defendant nos.1 to 8 and 16 against order dated
20th February, 2018 passed by this Court are pending before the Hon'ble
High Court and if at all plaintiffs are having any grievance about alleged
contempt they may knock the doors of the Hon'ble High Court in
respect of their grievance so that said Court directly can take cognizance
of allegations made by the plaintiff if said Court will notice any truth in
such allegations. I have given serious consideration to the arguments
advanced. Technically and legally this Court cannot take cognizance of
criminal contempt which is allegedly committed under contempt of
Courts Act, merely by deciding this notice of motion on considering the
allegations made in affidavit and only on hearing the lawyers. The
contempt under Contempts of Court Act is a serious contempt and
therefore, it is to be dealt with the manner provided by the Contempt of
Courts Act. If this court will make absolute this notice of motion by
ignoring the procedure laid down by said specific Act it would amount
to commit illegality by this Court. On this ground, I find that this notice
of motion is not maintainable. I have already made it clear that
plaintiffs may knock the doors of Hon'ble High Court for alleged
criminal contempt or plaintiffs may bring it to the notice to the Hon'ble
High Court that defendant no.16 or any defendant has committed any
such alleged contempt under Contempt of Courts Act. Hence, I find that
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this notice of motion is necessary to be dismissed. Hence, I proceed to
pass the following order.
O R D E R
Notice of Motion no.1692 of 2019 from suit no.680 of 2017
stands dismissed/disposed off.
Sd/
(K.P.NANDEDKAR)
21/06/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 21/06/2019
Transcribed on : 26/06/2019
Signed by HHJ on : 01/07/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
03/07/2019 2.50PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgement/Order. 21/06/2019
Judgement/order signed by P.O on 01/07/2019
Judgement/order uploaded on 03/07/2019
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