Order 1

Order Details: Notice of Motion
Pdf Text: 1 Common Order-NM1482-18 in SU2783-14
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
COMMON ORDER
ON
NOTICE OF MOTION NO.1482 OF 2018
(CNR no. MHCC010046452018)
AND
COURT RECEIVER'S REPORT NO. 314 OF 2018
IN
L.C. SUIT NO. 2783 OF 2014
(CNR no. MHCC010103832014)
Mr. Aziz Esmail Dhariwala ]..Plaintiff
Versus
Mohd. Kaunian Mohd. Ayub Shaikh ]... Defendant
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 13th March, 2019.
Ms. J.P. Thakkar, advocate for plaintiff.
Mr. G. V. Mhatre, advocate for defendant.
Mr. D. K. Patil, Section officer, Court Receiver's office,
High Court Bombay.
ORDER
1. The plaintiff has taken out this motion seeking direction to
the Ld. Court Receiver, High Court Bombay to remove the defendant –
agent from the flat no. 304 admeasuring about 225 sq. ft. area (suit
premises) C wing, Amatulla – “C” Cooperative Housing Society (said
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society), 12, Mohammed Taher Ansari Marg, Arab Lane, Grant Road,
Mumbai 400 008, on failure of the defendant to pay monthly royalty
and execute agency agreement and further to appoint plaintiff as an
agent of the Court Receiver without any royalty etc.
2. The Ld. Court Receiver submitted the report seeking
directions to take back physical possession of the suit premises on
failure of the defendant to pay royalty and execute agency agreement
etc.
3. Heard, respective advocates. Perused the affidavits filed in
support of motion and in reply as well as the Court Receiver's report
and the copies of documents placed on record.
4. The learned advocate for the plaintiff submitted that
though the defendant was appointed as an agent of the Court Receiver
in respect of the suit premises, he has not yet paid amount of royalty
and executed an agency agreement and therefore, he is not entitled to
use, occupy and enjoy the suit premises. On the other hand, the learned
advocate for the defendant submitted that the defendant is in
possession of the suit premises on the basis of an agreement to sell the
suit premises executed by the plaintiff. According to him, the plaintiff
has filed affidavit of evidence and therefore, there is no need to take
back the possession from the defendant.
5. The plaintiff has instituted a suit seeking declaration that
the defendant has no rights in the suit premises and further the alleged
documents dated 16.11.2007 i.e. agreement for sale, power of attorney,
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receipt, affidavit etc. are forged, fabricated, illegal and therefore, not
enforceable and binding on the plaintiff. The plaintiff has also prayed
for consequential reliefs for injunction that the defendant should not
transfer the suit premises or part with possession thereof pendente lite.
6. On this premise, it is necessary to look into the copies of
documents placed on record by the respective parties. The plaintiff
claims his right, title and interests in the suit premises on the basis of
registered agreement for an alternate accommodation dated
13.10.2005. The copy of share certificates prima facie shows that the
plaintiff is the member of the said society in respect of the suit premises.
It is the case of the plaintiff that on the basis of leave and license
agreement dated 01.03.2009 the defendant was permitted to use and
occupy the suit premises for a period of 11 months for license fees at
the rate of Rs.4,000/ per month. The defendant did not vacate the suit
premises and therefore, L.E. & C Suit no. 179/220 of 2012 for ejectment
of the defendant was filed. The defendant contested the said suit on the
basis of the aforesaid agreement for sale dated 16.11.2007 and other
documents. On 26.08.2014, the plaintiff was permitted to withdraw the
said suit with liberty to institute a fresh suit before the Competent
Authority.
7. Accordingly, plaintiff filed an application no. 94 of 2014
before the Competent Authority for eviction of the defendant, which
was allowed by order dated 02.02.2018. The plaintiff also lodged an
F.I.R. against the defendant with the concerned police complaining
about the forgery and fabrication of the documents and a criminal case
is pending in that behalf.
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8. On 01.10.2014, the plaintiff filed the present suit. By order
dated 10.08.2016 passed on Notice of motion no. 3822 of 2014 the Ld.
Court Receiver, High Court Bombay was appointed in respect of the suit
premises with a direction to fix royalty and further direction to the
defendant to pay the same. On 20.09.2016, the Ld. Court Receiver took
symbolic possession of the suit premises and appointed a valuer. On
receipt of the valuation report, on 04.07.2017 in the meeting of the
parties the amount of royalty was fixed to the tune of Rs. 9000/ per
month. The defendant was directed to execute agency agreement and
pay the royalty per month from 10.08.2016 and accordingly, by letter
dated 21.09.2017 he was informed to comply with the same.
10. However, the defendant took out notice of motion no. 3544
of 2017 seeking direction to decrease the amount of royalty, however,
by order dated 16.12.2017 the said motion was dismissed. The Ld.
Court Receiver by letters dated 10.05.2018, 03.08.2018 requested the
defendant to pay the royalty amount and execute agency agreement.
However, the defendant failed, neglected and avoided to comply with
the said order. Therefore, the Ld. Court Receiver submitted the report
seeking certain directions as narrated above.
11. It appears from the aforesaid facts that considering the
undisputed position that the defendant was in possession, use and
enjoyment of the suit premises the Court Receiver was appointed with
direction to fix an authority and accordingly it was so fixed. The
defendant has not placed anything on record whether he has challenged
either of the order of appointment of Court Receiver or order fixing the
royalty or the order dismissing the notice of motion no. 3544 of 2017
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whereby his prayer to decrease the royalty amount was dismissed.
Similarly, the defendant has not placed anything on record to show
whether he has instituted any suit for specific performance of the
agreement dated 16.11.2007. It appears that the defendant is enjoying
the suit premises and using the aforesaid agreement, power of attorney
and affidavit in defence in this suit as shield to protect his possession of
the suit premises.
12. However, since the appointment of the Ld. Court Receiver
the suit premises are custodia legis and in symbolic possession of the
Court Receiver. The defendant has not paid the amount of royalty and
even executed an agency agreement. The plaintiff has filed an affidavit
of evidence and the documents in support of his claim. Under such
circumstances, in order to avoid multiplicity of proceedings, it is just
and proper to direct he defendant to pay the arrears of royalty and
execute the agency agreement before 20th April, 2019. If the defendant
fails to comply with the order the Ld. Court Receiver would be free to
take back the possession of the suit premises. Therefore, the notice of
motion and the Court Receiver's report are required to be disposed off
by issuing certain directions. At this juncture advocate Mr. Mhatre prays
for stay to this order. The advocate for plaintiff is not present. However,
considering the ratio in the case of Kranti Mohan vs. Fatehchand
reported in A.I.R. 1982 Bombay 263, in order to facilitate the
defendant to challenge this order before the Hon'ble High Court
Bombay stay is granted till 08.04.2019 by giving the following
directions :
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ORDER
1. The defendant is directed to deposit the arrears of royalty for
period with effect from 10.08.2016 till 10.04.2019 @ of Rs.
9,000/ per month and execute agency agreement with the Court
Receiver before 20th April, 2019.
2. If the defendant fails to comply with the aforesaid order within
stipulated time, the Ld. Court Receiver is directed to take back
the physical possession of the suit premises from the defendant
forcibly and if required by breaking open the lock and with the
protection of police.
3. The Ld. Court Receiver is directed to appoint the plaintiff or any
other suitable person as an agent of the Court Receiver in respect
of the suit premises on usual terms and conditions and on such
royalty as per prevailing market rates and submit report before
this Court on 30th April, 2019.
4. In the aforesaid terms the notice of motion no. 1482 of 2018 and
the Court Receiver's Report no. 314 of 2018 are disposed off with
a direction to the defendant to pay costs of the Court Receiver's
report in the office of Court Receiver before 20th April, 2019.
5. The effect and implementation of this order is stayed till 8th April
2019 with a direction that it will not be extended further on any
count.
Sd/-
(Dr. M. S. Deshpande)
Judge,
Date : 13.03.2019 City Civil Court, Mumbai.
Directly dictated & typed on dias computer : 13.03.2019
Checked by HHJ on : 14.03.2019
Signed by HHJ on : 14.03.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 14.03.2019 at 5.45 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
13/03/2019
JUDGMENT/ORDER signed by
P.O. on
14/03/2019
JUDGMENT/ORDER uploaded
on
14/03/2019
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