Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.198318 in SCSU No.257316
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1983 OF 2018
(CNR No.MHCC010065072018)
IN
SC SUIT NO.2573 OF 2016.
(CNR No.MHCC010080482016
Smt. Laxmibai Krishnaji Koyalkar & Ors. }...Plaintiffs.
V/s.
Nagesh Krishnaji Koyalkar & Ors. }..Defendants.
Smt.Sonia Miskim, learned advocate for the plaintiffs.
Shri.Udaypuri, learned advocate for defendant No.1.
Shri.Agvekar, learned advocate for defendant No.2 & 3.
Shri.Satamkar, learned advocate for defendant No.4.
CORAM : HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 19/12/2018)
1. This Notice of Motion is taken out by the plaintiffs for
recalling order dtd.06/01/2018 passed by this court in Notice of Motion
No.2689/2017. Alternative prayer is made that defendant No.1 shall be
directed to deposit entire license fees in this court instead of 50% share
of the plaintiffs with liberty to the plaintiffs & all the defendants to
withdraw 1/6th share each from the said amount. Read the reply filed
by defendant No.1. Heard learned Smt.Sonia Miskim, advocate for the
plaintiffs, learned Shri. Udaypuri, advocate for defendant No.1, learned
Shri.Agvekar advocate for defendant Nos.2 & 3 and learned Shri.
Satamkar, advocate for defendant No.4. Perused the entire record.
2. It is not in dispute that as per order dtd.06/01/2018 passed
in the Notice of Motion No.2689/2017 of defendant No.1, my learned
Predecessor has permitted defendant No.1 to induct new licensee in the
suit premises with consent of the plaintiffs with further direction that
defendant No.1 & plaintiffs shall finalize the leave & license agreement
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and submit its copy in the court. Direction is given to defendant No.1 to
deposit 50% of license fees in the court as share of plaintiffs which is
permitted to be distributed amongst the plaintiffs.
3. Learned advocate for the plaintiffs argued that defendant
No.1 has violated said order of this court as defendant No.1 has not
taken consent of the plaintiffs for inducting new licensee in the suit
premises & as defendant No.1 has not got finalized the terms of Leave &
License agreement due to which, order passed on request of defendant
No.1 in that regard on 06/01/2018 needs to be recalled and vacated.
She further argued that defendant Nos.2 & 3 are also entitled for equal
shares in the license fees as like the plaintiffs and defendant No.1 yet,
this court has ordered that amount of license fees be distributed equally
amongst plaintiffs and defendant No.1 only. She argued that if court
does not find it proper to recall the said order, then defendant No.1
shall be directed to deposit the entire amount of license fees in the court
and thereafter, said amount shall be ordered to be distributed equally
amongst plaintiffs & all the defendants i.e. 1/6th share to each of them.
4. As against this, learned advocate for defendant No.1
submitted that application is not maintainable as there is no provision
in CPC for recalling the order and if the plaintiffs want that Notice of
Motion shall be treated as review petition, then there are no sufficient
grounds for accepting the prayers made in this Notice of Motion. He
further argued that this court has already considered entitlement of the
parties for having shares in the license fees hence, it is not necessary to
interfere in the said order. He further argued that Proformas for
execution of the Leave & License agreements are prescribed by the State
Government hence, there is no need to get the Leave & License
agreement finalized by consent of the plaintiffs due to which, prayer
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made in that regard can not be accepted.
5. Learned advocate for defendant Nos.2 & 3 requested to
allow the Notice of Motion.
6. As mentioned earlier, while allowing the Notice of Motion
No.2689/2017, this court directed that defendant No.1 & plaintiffs shall
finalize the Leave & License agreement and submit a copy thereof in
this court. Admittedly, defendant No.1 has not got the Leave & License
agreement finalized by consent of the plaintiffs. Learned advocate for
defendant No.1 made a statement at the bar that copy of Leave &
License agreement is produced in the court by defendant No.1 at the
time of depositing 50% amount of license fees. Apparently, direction in
that regard appears to have been complied with.
7. It is true that defendant No.1 has not got the Leave &
License agreement finalized by consent of the plaintiffs however, after
the copy of Leave & License agreement is produced in the court by the
defendant No.1, plaintiffs have not disputed that said Leave & License
agreement is as per the legal provisions hence, merely because consent
of plaintiffs is not obtained by defendant No.1 for execution of Leave &
License agreement, it does not appear to be a sufficient ground for
recalling and vacating the order dtd.06/01/2018 passed in Notice of
Motion No.2689/2017 due to which, I am not inclined to accept the
prayer made in this Notice of Motion in that regard.
8. So far as the direction issued in the said order for
depositing 50% amount of the license fees in the court towards the
share of plaintiffs is concerned, perusal of the order shows that said
direction has been given as plaintiffs have claimed that they have 50%
share in the suit premises. Even though, plaintiffs have contended that
defendant Nos.2 & 3 are also having equal shares in the license fees, it
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is a matter of record that those defendants have not raised any
challenge to the order passed in Notice of Motion no.2689/2017 by this
court on 06/01/2018 hence, I am not inclined to accept the prayer
made by the plaintiffs in the present Notice of Motion in that regard.
9. So far as the prayer made for giving the suit premises in
possession of Court Receiver is concerned, admittedly, said aspect is
considered by this court earlier while deciding Notice of Motion
No.4433/2016 of the plaintiffs. This court has not granted said relief in
favour of the plaintiffs & said order is not challenged by the plaintiffs
till date hence, said relief can not be granted in favour of the plaintiffs
while deciding the present Notice of Motion.
Thus, an order.
ORDER
Notice of Motion No.1983/2018 is dismissed.
Date:19/12/2018. (P. P. RAJVAIDYA)
Dictated on : 19/12/2018. Judge, C.R.No.12,
Transcribed on : 21/12/2018. City Civil Court,
Checked on : 21/12/2018. Gr. Bombay.
Signed on : 27/12/2018.
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5 NM No.198318 in SCSU No.257316
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
31/12/2018 at 12.15 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.12)
Date of pronouncement of Order 19/12/2018.
Order signed by P.O. on 27/12/2018.
Order uploaded on 31/12/2018.
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