Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1477-18 in S.C. Suit No.391 of 2013
1 Date : 26.08.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1477 OF 2018
IN
S.C.SUIT NO.391 OF 2013
(CNR NO.MHCC010046322018)
Bhanumati w/o. Laxmichand Savla & Anr. ..Plaintiffs
Versus
Hemchand Lalji Shah & Ars. .. Defendants
Appearances :
Adv. for plaintiff present.
Adv. for defendant present.
Coram : His Honour Judge
A.H.Laddhad
Additional Judge
CR No. : 7
Date : 26.08.2019
1. The plaintiff has filed instant Notice of Motion praying for
following reliefs :
(a) That pending the hearing and final disposal of the suit,
the Court Receiver, High Court Bombay be directed to
auction the articles found in the suit premises i.e. Shop
No. 8, Ground Floor, bearing C.S. No. 597/B of TPS IV
G/South Ward, situated at – J.B.Marg, elphiston,
Mumbai – 400 025 as mentioned in Court Receiver
Reports dated 23.09.2015, 15.02.2016 in compliance
of Order dated 04.03.2015 passed in Notice of Motion
No. 407 of 2013 in above S.C. Suit No. 391 of 2013
and to deposit the sale proceed with the Registrar
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NM 1477-18 in S.C. Suit No.391 of 2013
2 Date : 26.08.2019
(Civil) of this Court and Registrar shall deposit the said
proceed in Nationalised Bank and produce its receipts
before the Court.
(b) This Hon’ble Court may be pleased to appoint Architect
in the panel of BMC to visit the suit premises Shop No.
8, Ground Floor, bearing C.S. No. 597/B of TPS IV
G/South Ward, situated at – J.B. Marg, Elphiston,
Mumbai – 400 025 and to submit the report about
nature of repair and to submit the same before this
Hon’ble Court, so that suit premises to be given to third
party on monthly compensation for every eleven
months in compliance of order dated 04.03.2015
passed in Notice of Motion No. 407 of 2013 in S.C. Suit
No. 391 of 2013.
(c) That this Hon’ble Court may be pleased to direct the
Court Receiver, High Court, Bombay to submit 19
diaries of deceased Vasanji Lalji Shah to Plaintiffs for
the year 1983 to the year 2012 as mentioned in site
report of Court Receiver dated 16.01.2017.
(d) This Hon’ble Court may be pleased to direct Plaintiff
and Defendant No. 1 both will be equally distributed
and to be deposited in equal ratio with the Court
Receiver their charges as well as Architect’s inspection
charges in respect of suit premises.
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NM 1477-18 in S.C. Suit No.391 of 2013
3 Date : 26.08.2019
2. It is contended by the plaintiff that this Court vide order
dated 04.03.2015 passed in Notice of Motion No. 407 of 2013,
appointed Court Receiver in respect of suit property and
possession of the suit premises is handed over to the Court
Receiver. At the same time, the Court Receiver is directed to make
an inventory of articles found in the suit premises. This Court also
directed the Court Receiver to auction those articles found in the
suit premises and to deposit the sale proceeds with the Registrar of
this Court. It is further directed that, the Court Receiver to put
suit premises on rent to a person who is ready to provide
maximum monthly compensation for every eleven months and
shall renewed the same from time to time.
3. It is submitted by the plaintiff that accordingly, Court
Receiver conducted joint inspection and found several items as per
list which consist of golden and silver ornaments, Household
utensils, cash, 19 diaries of deceased Vasanji Lalji Shah for the
year 1984 to the year 2012. Hence, the plaintiff contended that
the Court Receiver to auction the other properties and hand over
19 diaries of the deceased to the plaintiff.
4. It is contended by the plaintiff that in order to let the
premises on rental, it requires repair of the suit premises. The
plaintiff submitted that the Architect be appointed in respect of the
suit premises and estimated cost of repair be submitted before this
Court. The plaintiff is ready to bear half of the expenses of such
repair. Therefore, the plaintiff seeks to allow the present Notice of
Motion.
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NM 1477-18 in S.C. Suit No.391 of 2013
4 Date : 26.08.2019
5. Per contra defendant no. 1 denied the right, title, interest of
the plaintiff in the suit premises. Hence, the defendant no. 1
prayed for rejection of the Notice of Motion.
6. Heard both the sides. Perused Notice of Motion, reply as
well as Court Receiver Report. It is not in dispute that by order
dated 04.03.2015, the Court Receiver is appointed and possession
of the suit premises is taken by the Court Receiver. At the same
time, this Court also directed the Court Receiver to prepare
Inventory of Articles found in the Suit Premises. The Court
Receiver prepared list which consist of Gold, Silver, household
articles including domestic appliances. Thus, looking to the
aforesaid order, in my view, the Court receiver to proceed to sale
the other articles except Gold and Silver which are kept in safe
deposit. At the time of passing of order dated 04.03.2015, it was
not revealed that the suit premises would also have valuables. At
present they are lying in the safe custody. Therefore, in my view,
instead of auctioning the valuable, it should be remain in costody
till disposal of the suit. In the event, in the auction, the household
articles and domestic use articles are not auctioned, the plaintiff
or defendant is having right to bid in the proposed auction and to
purchase the same.
7. As far as regarding 19 diaries of the deceased are concerned,
the plaintiff claimed custody of the same. In my view, instead of
granting the original diaries, the Court Receiver shall provide
photocopies of those diaries at the cost of the plaintiff.
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NM 1477-18 in S.C. Suit No.391 of 2013
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8. On perusal of the photocopies annexed alongwith the
Notice of Motion, it appears that the suit premises required repairs
and maintenance, therefore, the Court Receiver is directed to
appoint any BMC Panelled Architect and to obtained the estimated
cost of repair and submit the same to this Court. So that the order
dated 04.03.2015 can be given into effect in true sense and the
suit property can be let on hire. Thus, I proceed to pass the
following order.
ORDER
1. Notice of Motion No. 1477 of 2018 is hereby allowed.
2. The Court Receiver is hereby directed to hand over the
photocopies of 19 diaries to the plaintiff at his cost.
3. The Court Receiver is directed to auction the household and
domestic use articles found in the suit premises except
valuables i.e. Gold and Silver.
4. The plaintiff and defendant are also entitled to participate in
the said auction and bid.
5. The Court Receiver is hereby directed to appoint BMC
Panelled Architect and take estimated cost of repair and
submit the report to this Court immediately as far as possible
within a period of one month from the receipt of present
order.
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NM 1477-18 in S.C. Suit No.391 of 2013
6 Date : 26.08.2019
6. Notice of Motion No. 1477 of 2018 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 26.08.2019 Greater Mumbai
Dictated on : 26.08.2019
Typed on : 26.08.2019
Draft Submitted on : 26.08.2019
Checked on : 26.08.2019
Signed on : 28.08.2019
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NM 1477-18 in S.C. Suit No.391 of 2013
7 Date : 26.08.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNE
JUDGMENT/ORDER.”
28/08/2019 at 3.00 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
26/08/2019
JUDGMENT/ORDER signed by P.O.
on
28/08/2019
JUDGMENT/ORDER uploaded on 28/08/2019
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