Interim Order 2

Order Details: Order below exhibit
Pdf Text: Order Below Exh.14 Suit No.1278/2020
MHCC010046972020
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT
BOMBAY
ORDER BELOW EXHIBIT 14
IN
SHORT CAUSE SUIT NO.1278/2020
(CNR NO. MHCC010046972020)
Mr. Tejas Kashinath Redkar … Plaintiff
Versus
Mr. Kiran Kashinath Redkar and Anr. … Defendants
CORAM : HIS HONOUR JUDGE, R. D. DESHPANDE
: COURT ROOM NO. 61
DATE : 04.03.2025
Appearances:-
Adv. Shraddha Khandhadia for plaintiff.
Adv. Mr. Harshad Inamdar for defendants No.1 and 2.
ORDER
(Dictated and pronounced in open Court)
This is an application filed by plaintiff as per Section
35-B of the Code of Civil Procedure with the prayer to impose costs
upon defendants for delaying the proceeding.
2. Heard his Adv. Shraddha Khandhadia. She submitted
that the preliminary Decree came to be passed in this Suit on
25.01.2023. Though the Suit was disposed off by the Predecessor
of this Court, it came to be restored as per Order passed by
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Order Below Exh.14 2 Suit No.1278/2020
Hon’ble High Court in Writ Petition No.3016/2023 dated
28.04.2023. The Suit was actually restored on 01.08.2023.
3. She further argued that, after restoration of Suit,
plaintiff filed Notice of Motion No.2996/2023 and by Order dated
14.09.2023, this Court appointed Mr. Anil Korgaonkar, an
empanelled Architect and Valuer as a Court Commissioner, with
direction to inspect the suit premises, to ascertain if the same can
be partitioned and divided between the real brothers i.e. plaintiff
and defendants by metes and bounds as per the Decree in the Suit,
and if not to provide valuation report of current market value of
the suit flat for further division.
4. She further submitted that on 18.11.2023, the Court
Commissioner visited the suit premises, but the defendants have
contumaciously, wilfully disregarded and not complied with
various orders passed by this Court in the past and then continued
doing the same even now. This Court by Order dated 14.09.2023
directed both the parties to pay to the Court Commissioner directly
his commission fees. But the defendants did not comply that order.
It was brought to the notice of the Court on 31.10.2023, an Order
was passed and they were directed to deposit or pay fees of the
Court Commissioner within 8 days from that date. But thereafter
also, they did not pay to the Court Commissioner his fees and it
was recorded in the roznama dated 21.11.2023.
5. She lastly argued that, despite the directions dated
14.09.2023, 31.10.2023 and undertaking dated 21.11.2023 they
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Order Below Exh.14 3 Suit No.1278/2020
did not deposit or pay entire fees of the Court Commissioner till
04.12.2023. The report submitted by the Court Commissioner
dated 04.12.2023 also confirms the said things. These acts of the
defendants are in utter disregard to the majesty and honour of this
Court. Therefore, she prayed that heavy compensatory be imposed
upon defendants No.1 and 2 for contemp of orders passed and
directions given by this Court.
6. Advocate of defendants No.1 and 2 Mr. Harshad
Inamdar by filing say overleaf resisted the application. He replied
that the defendants No.1 and 2 have utmost respect to the majesty
of this Court. The Court Commissioner was directed to measure
the premises and to submit his report, whether partition by metes
and bounds is possible. Therefore, Commissioner has to submit his
response to that effect only. The defendants have yet not received
report of the Court Commissioner. However, he directly proceeded
to value the suit property. Therefore, necessary compliance as
directed by this Court was not done. Application is not tenable as
the defendants did not want to delay the proceeding. The
directions may be given to Department to accept the balance fees
of Court Commissioner without prejudice to the rights and
contentions of defendants No.1 and 2.
7. He further replied that on 01.02.2024, both the
defendants have deposited the balance fees of Court Commissioner
of Rs.13,334/-. Therefore, he prayed for rejection of application.
8. In reply Adv. Shraddha Khandhadia for plaintiff
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Order Below Exh.14 4 Suit No.1278/2020
submitted that in the same Order, the Court Commissioner was
directed to inspect the suit property and to verify as if it can be
divided by metes and bounds to hand over possession of his 1/3
separate share to the plaintiff and if not then also to submit his
report regarding valuation. Therefore, the defendants No.1 and 2
are making false statement in their reply.
9. Upon perusal of record, it is seen that the Decree on
admission was passed as per Order XII Rule 6 of the Code of Civil
Procedure since the defendants No.1 and 2 admitted the suit
claim. As such, they did not contest the suit. In the suit as well as
in the present Notice of Motion, they have not disputed that
plaintiff is having 1/3 share in the suit premises. As per submission
made by their advocate, they are ready to give him 1/3 share to
the plaintiff.
10. It is also seen that in Notice of Motion No.2996/2023,
my Ld. Predecessor passed an Order dated 14.09.2023, thereby
appointing Mr. Anil Korgaonkar, an empanelled Architect and
Valuer as the Court Commissioner. He was directed to carry out
inspection of the suit premises and to suggest the partition by
metes and bounds without causing any harm or damage to its
intrinsic worth. He was also directed that in case the division of
the property was not possible by metes and bounds then he shall
provide valuation report as per the current market value of the suit
flat for further division. Plaintiff and defendants No.1 and 2 were
directed to pay fees of the Court Commissioner directly to him.
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Order Below Exh.14 5 Suit No.1278/2020
11. It is also seen that a Court Commissioner, Anil
Korgaonkar assessed his fees at Rs.27,000/-. Plaintiff deposited his
1/3 share of Rs.9,000/- to the Court Commissioner, but the
defendants No.1 and 2 did not pay the full amount. They paid
Rs.2323/- each only, as is mentioned by the Court Commissioner in
his report dated 04.12.2023.
12. Later on, matter was adjourned from time to time for
depositing the balance fees of the Court Commissioner by the
defendants. Finally, they deposited the remaining amount of fees
of Court Commissioner of Rs.13,334/- in this Court on 01.02.2024.
13. The valuation report of the Court Commissioner is
already placed on record before this Court. Defendants No.1 and 2
have no objection to execute the preliminary Decree as per its
terms. It is true that there is some delay on their part in
compliance with the Order passed by this Court regarding payment
of fees of Court Commissioner and for that purpose the matter was
delayed.
14. As said earlier, though belatedly the defendants No.1
and 2 have deposited the remaining fees of Court Commissioner,
so that the plaintiff can pursue the matter further for taking out
the final Decree.
15. In view of speaking Order passed by my Ld.
Predecessor in Notice of Motion No.2996/2023, it cannot lie in the
mouth of defendants that the Commissioner directly proceeded for
valuation of the property and therefore, the necessary compliance
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Order Below Exh.14 6 Suit No.1278/2020
was not made by them. Order is self-explanatory. It shows that in
spite of directions issued by this Court regarding payment of fees
to the Court Commissioner, defendants did not obey that Order
from 14.09.2023 till 01.02.2024. On 01.02.2024 only they
deposited the balance fees of the Court Commissioner of
Rs.13,334/-. The Court Commissioner in his report dated
04.12.2023 has informed this Court that though the plaintiff has
remitted his entire fees, both the defendants have paid only partial
amount of Rs.2333/- each.
16. Section 35-B of the Code of Civil Procedure speaks
about costs for causing delay. As per this provision, the Court has
power for the reasons to be recorded, to make an Order requiring
both the defendants to pay the costs to the plaintiff as would be
reasonably sufficient to reimburse the plaintiff in respect of
expenses incurred by him in attending the Court and for failing
them to deposit the fees of Court Commissioner in time, which
they were required to deposit as per Order dated 14.09.2023 in
Notice of Motion No.2996/2023.
17. Thus, plaintiff has made out the case to impose costs
under Section 35-B upon both the defendants for causing delay.
Application deserves to be allowed. Hence, the following order: -
ORDER
1. Application at (Exh.14) is allowed.
2. As per Section 35-B of the Code of Civil Procedure, both the
defendants are directed to pay the costs of Rs.2000/- (Rs.
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Order Below Exh.14 7 Suit No.1278/2020
Two Thousands Only) each i.e. Rs.4000/- (Rs. Four
Thousands Only) in total, to the plaintiff for causing delay,
on or before the next date.
3. Accordingly, application at (Exh.14) stands disposed off.
DATE: 04.03.2025 (R. D. DESHPANDE)
JUDGE, CITY CIVIL COURT
& ADDL. SESSIONS JUDGE,
GR. MUMBAI.
Dictated on : 28.02.2025
Transcribed on : 01.03.2025
Checked on : 01.03.2025
Signed on : 04.03.2025
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Order Below Exh.14 8 Suit No.1278/2020
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER"
DATE: 04.03.2025, AT 05.48 P. M. Siddhesh Shankar Shirke
STENOGRAPHER (GRADE-I)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
no.) :
SHRI R. D. DESHPANDE
C.R.NO.61.
Date of pronouncement of
Judgment/order : 04.03.2025
Judgment/order signed by the P. O.
on : 04.03.2025
Judgment/order uploaded on : 04.03.2025
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