Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 1593/2018 in 1 Order.
Suit No.2889/2009
MHCC010049442018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1593 OF 2018
IN
SUIT NO. 2889 OF 2009
(H.C. Suit No. 14 Of 2009)
Hema Jagdip Mehta ... Plaintiff
V/s.
1. Bharati Sharad Parab
2. Sharad Parab
3. Shrey Sharad Parab
... Defendants
CORAM : HIS HONOUR AD-HOC JUDGE &
ASSISTANT SESSIONS JUDGE
SHRI R.S. KSHIRSAGAR
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 13.04.2023
Appearance:-
Ld. Advocate Shri. Prashant Chande for the plaintiff.
Ld. Advocate Shri. Ajit Karvande for the defendant Nos. 1 and 3.
ORDER
1. The plaintiff has taken out this notice of motion to direct the
respondent i.e Court Receiver, High Court, Bombay to pay her sum of
Rs.25,04,851/- being one half of total amount of royalty/compensation
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deposited with the respondent with the interest occurred thereon or
such other amount of one half of share of total compensation with
interest on the date of payment to her within such time as may be
directed. She further prayed to direct the respondent to
redeem/withdraw the amount of such fixed deposit receipts before
maturity which are invested by the respondent in the present suit that
may be required for the purpose of payment of one half share of her.
Out of the total amount of royalty with accrued interest in the accounts
of Court Receiver. She further prayed that pending the hearing and final
disposal of the suit, the respondent be directed to pay her every quarter
of the year, one half of royalty/compensation deposited with the
respondent.
2. Defendant No.1 filed her reply to this notice of motion and
contended that present notice of motion is not maintainable in law as :
The plaintiff claim in paragraph No.10, of the affidavit in support
of Notice of Motion as “ myself and the defendant No.1 are entitle
to one half of the royalty/compensation deposited with the
respondent no.1, Court Receiver High Court Bombay.”
3. It is contended by the defendant No.1 that the above statement is
prepared on the basis of order in Notice of Motion No. 89 of 2009 in
Suit No. 14 of 2009 with Contempt Petition No. 6 of 2010 dated 19-10-
2010. In fact, the order in notice of motion may varied after trial and
she have strong submission on the basis of evidence that introduced by
her in her written statement that plaintiff suit shall be dismissed after
trial. Therefore, the money claimed by the plaintiff as her money is in-
correct statement. There are chances that she get successes in the
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litigation. Therefore, the money in hand of court receiver is safe during
the trial. Therefore, the relief claimed in notice of motion should not be
granted, in turn the notice of motion is not maintainable and she denied
the rest of the contentions of the notice of motion in toto.
4. Perused notice of motion and say on it.
5. Ld. Counsel Shri. Prashant Chande for the plaintiff argued that
this notice of motion is taken out by the plaintiff. The defendant No.1 is
the sister of plaintiff, defendant No.2 is the husband of defendant No.1,
defendant No.3 is son of defendant No.1 and 2. Court Receiver is
respondent. He further argued that there was a person by named Shri.
Mathuradas Vallabhadas Dhutia, who died intestate, leaving behind him
two daughters i.e plaintiff and defendant No.1. Defendant No.1 refused
to give plaintiff’s share, therefore present suit is filed for declaration
that plaintiff and defendant No.1 are entitled for 50% shares in estate of
the deceased and for the purpose of administration of the estate of the
deceased. Plaintiff is in dire need of money for education to her son.
Therefore, at least 50% amount be paid to her which is lying with the
Court Receiver.
6. On the contrary, Ld. Counsel Shri. Ajit Karvande for the defendant
argued that present notice of motion is prematured, if same is allowed.
It is nothing but to decree the suit and lastly prayed to reject the notice
of motion.
7. Perused record. Plaintiff has filed this suit for partition and
seeking relief that she is having one half share in the estate and
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property of her deceased father Shri. Mathuradas Vallabhadas Dhutia.
The share of the plaintiff and defendants is not yet decided. It will take
time to decide the same by way of this notice of motion. The plaintiff is
asking 50% share in the amount of royalty/compensation which is
deposited with the Court Receiver, if same is allowed, it is nothing but
to partially decreed the suit. Hence, it is not just and proper to allow the
present notice of motion. Hence, I pass following order:
ORDER
1. Notice of Motion No.1593 of 2018 is rejected.
2. Proceeding of Notice of motion No. 1593 of 2018 is hereby
closed.
(R.S.Kshirsagar)
Ad-Hoc Judge &
Assistant Sessions Judge,
City Civil Court,
Date : 13.04.2023 Gr. Bombay
1. Dictated on : 13.04.2023.
2. Checked and Signed on : 13.04.2023.
4. Delivered to Certified :
Copy Section on
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Suit No.2889/2009
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
13.04.2023. 5.30 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri R.S.Kshirsagar
(Court Room No.63).
Date of Pronouncement of Judgment/Order 13.04.2023
Judgment/Order signed by P.O. on 13.04.2023.
Judgment/Order uploaded on 13.04.2023.
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