Final Order 1

Order Details: Notice of Motion
Pdf Text: N.M.No.1643/2022 Order
MHCC010047422022 Presented on : 29.04.2022
Registered on : 29.04.2022
Decided on : 06.02.2025
Duration : 02 09 08
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT
BOMBAY
NOTICE OF MOTION NO.1643/2022
(CNR NO. MHCC010047422022)
IN
SHORT CAUSE SUIT NO.3186/2013
1 Laxmichand Ramji Gala
an adult, aged about 56 years Indian
Inhabitant of Mumbai, Occupation :
Business
2 Bharati Laxmichand Gala
an adult, aged about 54 years
Occupation: Housewife,
Both residing at: Flat No.16, Taraporewalla
Building No.1, 2nd Floor, Kemps Corner,
Mumbai 400036. ... Plaintiffs
Versus
1 Anil Shivji Haria
an adult, Indian Inhabitant of Mumbai,
Residing at: A-505, Sairaj Garden, Irani
Wadi No.3, Kandivali (West), Mumbai
400067.
2 Ramesh Shivji Haria
an adult, Indian Inhabitant of Mumbai,
residing at: Highway View Society A-3, Flat
No.18, 4th Floor, Shantaam Tadau, Kurar
Village, Malad, Mumbai 400097.
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N. M. No.1643/2022 2 Order
3 Manjula Kishore Damji
an adult, Indian Inhabitant of Mumbai,
residing at: 107, Chitde Vihar Building,
Bhawani Shankar Road, Dadar (West),
Mumbai 400028.
4 Sunderi Vasant Gangji
an adult, Indian Inhabitant of Mumbai,
residing at: 5, Laxmi Sadan, Nariman Road,
Vile Parle (East), Mumbai 400057.
5 Hemraj Hirji Gala
an adult, Indian Inhabitant of Mumbai.
6 Vasanji Harshi Gala
an adult, Indian Inhabitant of Mumbai.
Deleted as per
roznama dated
18.04.2018.
7 Hirji Kuwarji Nisar
an adult, Indian Inhabitant of Mumbai.
8 Devchand Anandji Shah
an adult, Indian Inhabitant of Mumbai.
Deleted since
deceased.
9 Rameshchandra P. Gupta
an adult, Indian Inhabitant of Mumbai.
10 Hansraj Dhanji Pasad
an adult, Indian Inhabitant of Mumbai.
Deleted as per
roznama dated
18.04.2018.
11 Chandrakant Lalji Gala
an adult, Indian Inhabitant of Mumbai.
Deleted as per
roznama dated
18.04.2018.
12 Lalit Ratanshi Gosar
an adult, Indian Inhabitant of Mumbai.
13 Lalchand Bhawanji Haria
an adult, Indian Inhabitant of Mumbai.
14 Chandrakant Hansraj Pasad
an adult, Indian Inhabitant of Mumbai.
15 Tarachand Morarji Gala
an adult, Indian Inhabitant of Mumbai.
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16 Jayantialal Shamji Haria
an adult, Indian Inhabitant of
16A Kalpana Arun Gupta
an adult, age not known,
Indian Inhabitant of Mumbai,
residing at: K-2/503, Neel Yog Residency,
Gauri Shankar Wadi - 1, Pant Nagar,
Ghatkopar (East), Mumbai 400075.
16B Atul Jadavjee Shah
an adult, age not known,
Indian Inhabitant of Mumbai,
residing at: Plot No.232, Flat No.3, 1st Floor,
Jaya Apartment, R. B. Mehta Marg,
Ghatkopar (East), Mumbai 400077.
17 Kutchi Sarvodaya Nagar
A Public Charitable Trust,
registered under the Bombay Public Trust
Act,
having its address at: P. L. Lokhande Marg,
Govandi, Mumbai 400003. ... Defendants
CORAM : HIS HONOUR JUDGE, R. D. DESHPANDE
: COURT ROOM NO. 61
DATE : 06.02.2025
Appearances: -
Adv. Mr. Rajiv Hingu i/b L. H. Hingu and Company for plaintiffs.
Adv. Mr. Anand Waradkar for defendant No.14.
ORDER
(Dictated and pronounced in open Court)
This Notice of Motion is taken out by the defendant
No.14.
2. Heard his Adv. Mr. Anand Waradkar. He submitted that
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the Suit is allegedly for claiming their rights by the plaintiffs
attached to membership No.116 of defendant No.17 Trust.
Membership No.116 admittedly stands in the name of Laxmiben
Shivaji Haria (since deceased) from the name of original member,
Vejbai Ganshi (since deceased). Plaint as a whole is constantly
referring to the membership No.116 of the defendant No.17 Trust.
This particular aspect regarding membership No.116 in the Trust is
required to be decided or dealt with by the Ld. Charity
Commissioner, Mumbai as the jurisdiction of this Court is expressly
barred under Section 80 of the Maharashtra Public Trusts Act,
1950. This aspect is required to be looked into by the Charity
Commissioner under Sections 41-A to 41-E of the said Act.
3. He further argued that, it was incumbent upon the
plaintiffs to seek prior permission of the Charity Commissioner
before institution of this Suit as per Section 51 of the Maharashtra
Public Trusts Act, 1950. But no such permission has been obtained
by them.
4. He further argued that, the plaint does not disclose any
cause of action. Plaintiffs are seeking declaration in respect of
aggregate carpet area of 750 sq. ft. of their alleged flat to their
market value rate thereof exceeds Rs.1 Crore and which is beyond
the jurisdiction of this Court therefore, this Court has no pecuniary
jurisdiction to entertain and try this Suit. On all these grounds, he
submitted that the plaint is liable to be rejected as per Order 7
Rule 11 of the Code of Civil Procedure as the plaintiffs have also
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N. M. No.1643/2022 5 Order
not paid proper Court fees of their alleged claim.
5. In support of his arguments, he relied upon following
cases.
i) “Keshav Narayan Bharti dead through his LRs.
Parvatibai Keshav Bharti and others Vs. State of Maharashtra and
others, reported in 2007 (2) Mh.L.J. 469”, in which it is held by
Hon’ble Bombay High Court that, “exclusive jurisdiction for
deciding a question whether or not a trust exists and such trust is a
public trust or particular property of such trust, is within the ambit
of Deputy or Assistant Charity Commissioner or the Authority
under the Maharashtra Public Trusts Act, 1950, as provided under
Section 79. Section 80 of the said Act bars jurisdiction of the Civil
Court to decide or deal with any question, which is by or under
this Act to be decided or dealt with by any officer or Authority
under this Act.”
ii) Secondly, on the case of “Smt. Sisir Kana Guha and
others Vs. Ayakar Grihanirman Samabaya Samity Ltd. and another,
reported in AIR 2002 Calcutta 247”, in which it is held by Hon’ble
Calcutta High Court that, “rejection of plaint can be made at any
stage of the Suit. Whether the Written Statement has been filed or
Issues have been framed is immaterial. The provisions of Order 7
Rule 11 of the Code of Civil Procedure are mandatory. If the
conditions are satisfied, plaint has to be rejected, except in case of
enhancement of pecuniary jurisdiction, in which the plaint has to
returned for presenting it to the proper Court.”
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N. M. No.1643/2022 6 Order
6. Adv. Mr. Rajiv Hingu for plaintiffs by filing affidavit in
reply strongly resisted the Notice of Motion. He replied that, the
Suit is for Declaration and Specific Performance of the Contract
and other reliefs more specifically mentioned in the plaint.
Therefore, the Notice of Motion as taken out by the defendant
No.14 is not maintainable. Defendant No.14 has suppressed and
concealed material facts and has attempted to mislead and
misguide this Court by making false statement on oath. He has
taken out this Notice of Motion belatedly and almost after the span
of more than 9 years from the filing of the suit. It shows his
malafides.
7. He further replied that, this Court has exclusive
jurisdiction to try and entertain this suit. The reliefs claimed in the
suit are not coming under the purview and ambit of Sections 41-A
to 41-E of the Maharashtra Public Trusts Act, 1950. Therefore, the
Ld. Charity Commissioner has no jurisdiction to entertain the
Issues and dispute which is involved in the present matter.
Therefore, bar under Section 80 of the Maharashtra Public Trusts
Act, 1950 would not apply.
8. He further replied that, defendant No.14 and other
trustees have cheated the plaintiffs and bonafide applicants under
the guise of transfer of membership and the benefits attached to
thereof by accepting huge amount. But later on, they refused to
comply their obligations and assurances as given by them.
Therefore, two of such applicants filed applications
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N. M. No.1643/2022 7 Order
No.DyCC/26/2013 and DyCC/4/2014 before the Ld. Charity
Commissioner. But in those applications defendant No.14 in his
written arguments took a stand that, the present application under
Section 41-A of the Act was not maintainable as the reliefs prayed
therein are beyond the scope of that provision. By relying upon the
Judgment of Hon’ble Bombay High Court the Assistant Charity
Commissioner rejected those applications by holding that said
question is required to be looked into by the Civil Court. Not only
that the Ld. Charity Commissioner has ordered an enquiry after
prima-facie holding that there is mismanagement by the trustees
including the defendant No.14. It indicates that, defendant No.14
has taken out this Notice of Motion with dishonest intention.
9. He further replied that suit is properly valued by the
plaintiffs and have paid the Court fees on the market price of the
suit property of Rs.90,00,000/-. Paragraphs No.41 to 43 of the
plaint clearly disclose the cause of action. As such, there is no force
in the present Notice of Motion taken out by defendant No.14.
Therefore, he submitted that, it may be dismissed with heavy costs.
10. He relied upon following cases: -
i) “Vidya Rajaram Bandiwadekar and Ors. Vs. State of
Maharashtra and Ors., reported in AIR 2024 Bombay 286”, in
which it is held by Hon’ble Bombay High Court that, “nature of
jurisdiction exercised under Section 41-A is purely administrative
and inter se rights of parties including issue of membership cannot
be adjudicated in an application under Section 41-A.”
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N. M. No.1643/2022 8 Order
ii) “Gram Vikas Samittee, Shahapur Vs. Darshanlal s/o
Nandlal Malhotra and others, reported in 2009(5) Mh.L.J. 457”, in
which it is held by Hon’ble Bombay High Court that, “when
Assistant Commissioner cannot direct appointment of trustees, he
would also not be able to direct to enroll members, hold elections
and submit report under Section 41-A of the Act. Any such
direction would vitiate, if challenged, for it would be illegal
exercise of jurisdiction.”
11. Following Points arise for my determination and I
record my findings against each of them for the reasons given
below: -
Sr.
No. Points Findings
1 Whether defendant No.14 has
made out the case for rejection of
plaint as per Order 7 Rule 11 of
the Code of Civil Procedure?
:: No.
2 What order? :: Notice of Motion is
dismissed as per final
order.
REASONS
Point No. 1 -
12. Admittedly the Suit is for Declaration and Specific
Performance of the Contract. There cannot be any dispute that the
Ld. Assistant Charity Commissioner while exercising his
jurisdiction under Section 41-A to 41-E of the Maharashtra Public
Trusts Act, 1950, has no jurisdiction to grant such reliefs. Because
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N. M. No.1643/2022 9 Order
Section 41-A of the Maharashtra Public Trusts Act, 1950 speaks
about power of Commissioner to issue certain directions for proper
administration of the Trust. He may from time-to-time issue
directions to any Trustee of a Public Trust or any person connected
therewith, to ensure that the Trustees properly administer and the
income thereof is properly accounted for and applied to the objects
and purposes of the Trust. He may also give directions to the
Trustees, if he finds any property of the Trust is in danger of being
wasted, damaged, alienated or wrongfully sold, removed or
disposed off.
13. Sub-section (2) of Section 41-A speaks that it shall be
the duty of every Trustee or of such person to comply with the
directions issued under Sub-section (1). Section 41-A never speaks
about his powers to pass Declaration or to grant Specific
Performance of the Contract.
14. It is the settled position of law that as per Section 9 of
the Code of Civil Procedure, the Courts shall have jurisdiction to
try all Suits of a Civil nature, excepting Suits of which their
cognizance is either expressly or impliedly barred. Advocate for
defendant No.14 could not point out a single provision in the
Maharashtra Public Trusts Act, 1950 regarding express or implied
bar to try this Suit by this Court. Moreover, it is also the settled
position of law that exclusion of the jurisdiction of the Civil Court
is not to be readily inferred. On this count alone, the Notice of
Motion taken out by the defendant No.14 deserves to be dismissed.
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N. M. No.1643/2022 10 Order
15. The defendant No.14 has not come before this Court
with clean hands in saying that this Court has no jurisdiction to try
and decide this Suit. Because it is seen from the affidavit in reply
filed by the plaintiffs to this Notice of Motion that the defendant
No.17 Trust and its Trustees including the present defendant No.14
have cheated the plaintiffs and other bonafide applicants under the
guise of transfer of membership and the benefits attached thereto
by accepting huge amount from them. But they refused to comply
their obligations and assurances. Therefore, such two persons
namely Deepak Hiralal Regar and Hiralal Puranmal Regar
approached the Office of Assistant Charity Commissioner, Gr.
Mumbai by filing applications No.DyCC/26/2013 and
DyCC/4/2014. They claimed in those applications regarding
directions for transfer of life membership of the Trust.
16. It is important to note that in the written arguments
filed on behalf of Trust, it is mentioned that those applications
were not maintainable under Section 41-A. They reproduced
Section 41-A of the said Act in their reply by submitting that the
underline ideal of Section 41-A is that those directions relate only
to the administration of the Public Trust, for proper accounting or
for appropriate application of the income to the objects of the
Trust.
17. But Assistant Charity Commissioner by relying upon
the cited case “Gram Vikas Samittee, Shahapur Vs. Darshanlal s/o
Nandlal Malhotra and others” on which Advocate of plaintiffs Mr.
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N. M. No.1643/2022 11 Order
Hingu also placed his reliance in this Notice of Motion, observed
that Assistant Charity Commissioner cannot direct the appointment
of Trustees. He would also not be able to direct to enroll members,
to hold elections and to submit change reports under Section 41-A
of the Maharashtra Public Trusts Act, 1950. Considering the law
laid down in this cited case, Ld. Assistant Charity Commissioner
has held that first Authority cannot direct to transfer the life
membership to the applicant which would amount to enrollment
of applicant’s name in the list of life membership. By making such
observations, he has rejected both the applications.
18. However, surprisingly enough in this Notice of Motion
the stand is taken by the defendant No.14 who is the Trustee of
defendant No.17 Trust that, the Civil Court has no jurisdiction to
grant the reliefs of Declaration and Specific Performance claimed
in the plaint. According to him, such jurisdiction is vested in the
Ld. Assistant Charity Commissioner by virtue of the provisions of
Section 41-A to 41-E of the Maharashtra Public Trusts Act, 1950.
19. Defendant No.14 cannot blow hot and cold at the same
time. In view of settled position of law by Hon’ble Bombay High
Court, in the above cited case, Ld. Assistant Charity Commissioner
has no power and right to transfer membership and enroll
members in the Trust. Therefore, in my humble opinion, the bar
under Section 80 of the Maharashtra Public Trusts Act, 1950
would not be applicable for the present Suit.
20. In the second cited case “Vidya Rajaram Bandiwadekar
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N. M. No.1643/2022 12 Order
and Ors. Vs. State of Maharashtra and Ors. also on which Advocate
of plaintiffs Mr. Hingu placed his reliance, similar law is laid down
by Hon’ble Bombay High Court by holding that nature of
jurisdiction exercised under Section 41-A of the Maharashtra
Public Trusts Act, 1950 is purely administrative and inter se rights
of parties including issue of membership cannot be adjudicated in
an application under Section 41-A. The law laid down in both
these cited cases on which Advocate for plaintiffs Mr. Rajiv Hingu
placed his reliance, squarely applies to the case at hands as the
facts situation is exactly similar.
21. I have also gone through facts of both the cited cases
on which Advocate of defendant No.14 Mr. Waradkar placed his
reliance. In the first cited case “Keshav Narayan Bharti dead
through his LRs. Parvatibai Keshav Bharti and others Vs. State of
Maharashtra and others”, the issue before Hon’ble High Court was
exclusive jurisdiction for deciding a question whether or not a
Trust exists and such Trust is a Public Trust or particular property
is of such Trust, is within the ambit of Deputy or Assistant Charity
Commissioner or the Authority under the Maharashtra Public
Trusts Act, 1950 as provided under Section 79 of that Act. Section
80 of the said Act bars the jurisdiction of Civil Court to decide or
deal with any question which is or by under this Act to be decided
or dealt with by any Officer or Authority under this Act and in
respect of which the decision or order of such Officer or Authority
has been made final and conclusive.
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N. M. No.1643/2022 13 Order
22. But so far as the case at hands is concerned, the
question involved is not in respect or whether the Trust exists or
such Trust is a Public Trust or particular property is of such Trust
or not. On the contrary, Suit is for Specific Performance of Contract
arising out of contractual obligations and also for the Declaration.
Such reliefs can only be granted by the Civil Court only and those
are not covered by the provisions under Section 41-A to 41-E of
the Maharashtra Public Trusts Act, 1950. Therefore, facts of this
cited case being altogether different with the case at hands, with
due respect, the Law laid down therein is not helpful to the
defendant No.14.
23. I have also gone through facts of the second cited case
“Smt. Sisir Kana Guha and others Vs. Ayakar Grihanirman
Samabaya Samity Ltd. and another” on which Adv. Mr. Waradkar
for defendant No.14 placed his reliance. In this cited case it is held
by Hon’ble Calcutta High Court that rejection of plaint under
Order 7 Rule 11 can be made at any stage of the Suit. Whether
Written Statement has been filed or Issues have been framed is
immaterial.
24. In my humble opinion the defendant No.14 might have
placed his reliance on this cited case in view of the ground of delay
raised by plaintiffs in their affidavit in reply in taking out the
Notice of Motion. Further Hon’ble Calcutta High Court has held
and pointed out the instances under which the plaint can be
rejected. Upon curing the defects, if valuation of the Suit exceeds
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N. M. No.1643/2022 14 Order
the pecuniary jurisdiction of the Court then it comes within the
ambit of Rule 10 of Order 7 i.e. return of plaint and it cannot be
rejected on that ground.
25. However, it is necessary to see as if the grounds for
rejection of plaint appearing in Order 7 Rule 11, Sub-rules (a) to
(f) are attracted from the averments in the plaint. Because it is also
the settled position of law that while deciding the Notice of Motion
regarding rejection of plaint under Order 7 Rule 11 of the Code of
Civil Procedure, averments in the plaint alone are required to be
gone through and none else. Ground No. (a) of Rule 11 speaks
that, plaint has to be rejected when it does not disclose the cause
of action. But plaintiffs have categorically mentioned in their
affidavit in reply that in Paragraphs No.43 and 44 of the plaint,
they have clearly pleaded the cause of action being arisen for the
filing of the Suit. Therefore, this particular ground goes away.
26. Sub-rule (b) speaks about undervaluation. In this
regard, it is the contention of plaintiffs that they have valued the
Suit at Rs.90,00,000/- as per the valuation on the market value at
the relevant time and have paid appropriate Court fees thereon.
Therefore, this ground also goes away. Obviously the ground in
Clause (c) also would not be applicable as there is no ground of
payment of insufficient Court fees.
27. So far as next ground in Clause (d) is concerned, I had
already reached the conclusion that from the statements in the
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N. M. No.1643/2022 15 Order
plaint, it does not appear to be barred by any Law. As held earlier,
the bar under Section 80 of the Maharashtra Public Trusts Act,
1950 would not be applicable to this Suit as the reliefs claimed can
be granted only by the Civil Court and not by the Office of
Assistant Charity Commissioner while exercising jurisdiction under
Section 41-A to 41-E of the Maharashtra Public Trusts Act, 1950.
Defendant No.14 has not raised further grounds (e) and (f) in his
Notice of Motion.
28. In short, I find no substance in the Notice of Motion
taken out by the defendant No.14. Only this Court has jurisdiction
to decide the Issues involved in the Suit as regards Declaration and
grant of Specific Performance to the plaintiffs. Issue as regards
obtaining prior consent from the Charity Commissioner under
Section 51 of the Maharashtra Public Trusts Act, 1950 is
concerned, it has to be decided on merits and at the time of
conclusion. Defendant No.14 has not made out the case for
rejection of plaint under Order 7 Rule 11 of the Code of Civil
Procedure. In the result, I answer Point No.1 in the negative.
Point No. 2 -
29. In view of my negative finding to Point No.1, Notice of
Motion taken out by defendant No.14 deserves to be dismissed and
that too with costs. Hence, the following order:-
ORDER
1. Notice of Motion is dismissed with costs.
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2. Accordingly, Notice of Motion No.1643/2022 stands
disposed off.
DATE: - 06.02.2025 (R. D. DESHPANDE)
JUDGE, CITY CIVIL COURT
& ADDL. SESSIONS JUDGE,
GR. MUMBAI.
Dictated on : 05.02.2025
Transcribed on : 05.02.2025 and 06.02.2025
Checked on : 06.02.2025
Signed on : 06.02.2025
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER"
DATE: 06.02.2025, AT 05.59 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
:
06.02.2025
Judgment/order signed by the P. O.
on
:
06.02.2025
Judgment/order uploaded on : 06.02.2025
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