Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No. 2536-2019 in
Suit No. 2705-2017
MHCC010069722019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.2536 OF 2019
IN
SUIT NO. 2705 OF 2017
1. Arshad Mansoor Shaikh ]
Adult Muslim Indian Inhabitant of ]
Mumbai, Age: 46 years, residing at ]
8th Floor, Bharat Talkies, Station ]
Road, Kurla (West), Mumbai- 400 070. ]
2. Fahim Mansoor Shaikh ]
Adult Muslim Indian Inhabitant of Mumbai ]
Age: 41 years, residing at 2, Pinaroo Road, ]
1st Floor, 16th Road, Bandra (West), ]
Mumbai- 400 050. ] … Plaintiff.
Versus
1. Darakhsha Roohi Irfan Shaikh ]
Age: 36 years, having address at A-701, ]
White Tower, Fair Deal Road, Off. S. V. Road,]
Jogeshwari (West), Mumbai- 400 102. ]
2. Dena Bank, Dena Corporate Centre, ]
C-10, G-Block, Bandra Kurla Complex, ]
Bandra (East), Mumbai- 400 051 and ]
having its branch office address at L. B. S. ]
Marg, Premier Road, Nav Pada, Kurla, ]
Mumbai, Maharashtra- 400 070. ]
3. State Bank of India, State Bank Bhavan, ]
Madame Cama Road, Nariman Point, ]
Mumbai, Maharashtra- 400 021 and having]
its branch office address at Turner Road ]
Branch, Bandra (West), Mumbai- 400 050. ] ...Defendants.
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Appearances :-
Learned advocate Chirag Bhatia for plaintiff.
Learned advocate R. Peermohideen I/b. Adv. R. R. Shaikh for defendant
No.1.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 03.05.2025
O R D E R
Perused notice of motion, affidavit in reply of defendant
No.1 and record. Heard both the sides.
2. In affidavit in support the plaintiffs have contended that
they have filed the suit for declaration of their rights in the funds of the
account No.30987463576 maintained by their father with the
defendant No.3 and also in FDR of deceased father maintained with the
defendant No.2. It is contended that their deceased father had
maintained several fixed deposit during his life time with the defendant
No.2 bank and saving account with the defendant No.3 bank. It is also
contended that father of the plaintiff and defendant No.1 died intestate
and leaving behind certain movable and immovable properties. It is the
further contention of the plaintiff that the aforesaid FDR’s and account
maintained by the defendant No.2 and 3 and the plaintiffs are not
aware of the details of the said account including the balance amount.
According to the plaintiff, defendant No.1 has approached the
defendant No.2 to encash the FDR-1 of deceased. Therefore, the
plaintiffs have apprehension that the FDR-2 has been encashed/
released in favour of the defendant No.1. The plaintiffs have also their
share in said FDR and their deceased father only for the sake of
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convenience had put the FDR-2 in the name of defendant No.1 only. It is
also contended that the defendant No.1 is housewife and she has no
independent income. The defendant No.1 is trying to encash FDR-2 in
her name therefore, the plaintiff is seeking temporary injunction
restraining the defendant No.2 from crediting the amount of FDR-1 and
FDR-2 in account of defendant No.1. Hence, this notice of motion.
3. The defendant No.1 has filed reply affidavit and opposed
the present notice of motion on the ground that the plaintiffs have filed
the suit in the nature of administration of Estate of the deceased father
and they are trying to deprive the defendant No.1 of the properties of
which she is the owner. It is submitted that apart from the properties of
which the defendant No.1 is primary holder have suppressed the
various properties including the bank accounts and FDR’S in which the
plaintiffs are nominee. It is further submission of defendant No.1 that
the plaintiffs till date have suppressed the details about rent amount
which they are accumulating from the immovable properties owned by
the deceased and defendant No.1. According to her, she is the primary
holder of the FDR bearing No.3724508 and 3725554 with the
defendant No.2. On 11.10.2016, the defendant No.1 sent letter to the
plaintiff No.2 and thereby asked to return the FDR’S but the plaintiff
failed to reply of the said letter. Therefore, the defendant No.1 had filed
a police complaint on 15.03.2017 with Amboli Police Station. It is also
submitted that the account with the defendant No.2 is the account of
defendant No.1 being operated since her childhood and after marriage
whatever the pocket money she used to receive from her husband was
handed over to her father during her annual visits to India and he
would deposit them in the Dena Bank Account. Later on the deceased
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moved to Bandra in order to ease his travel it was decided that she
would remit money directly and her father maintained the account that
is the reason why the account was opened in Bandra near her father’s
place of stay where he used to reside with the plaintiff No.2. The
deceased was handling all the accounts on behalf of defendant No.1.
Therefore, the plaintiffs are not entitled to claim any relief in respect of
the aforesaid saving account and the FDR- 1 and 2. On all these
grounds the defendant No.1 prayed to dismiss the notice of motion.
4. It appears from the record that, both the parties are
claiming their rights over the FDR-1 and FDR-2 and also the amount
lying in the saving account of the deceased. It is pertinent to note that
the FDR and amount were of deceased father of the plaintiffs and
defendant No.1 will be decided on merit only as the plaintiffs are
seeking declaration about their rights in respect of the aforesaid monies.
It is not disputed that deceased father of the plaintiffs and defendant
No.1 died instated and the plaintiffs and defendant No.1 are his legal
heirs. The documents annexed with the plaint indicate three FDR’s in
the name of the deceased father and two FDR’s are in the name of the
defendant No.1. It is also pertinent note that the email was sent by the
defendant No.2 to the plaintiffs which indicates that the plaintiffs have
to obtain order from the competent Court in respect of the FDR-1
otherwise the defendant No.2 credit the amount of FDR the account of
defendant No.1.
5. Due to the email issued to the defendant No.2 the plaintiffs
have apprehension that the amount will be credited in the account of
the defendant No.1 and such action will frustrated the very purpose of
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filing of the suit as well as notice of motion. Admittedly, all the parties
have to establish their right in respect of the aforesaid FDR and amount
lying in the saving account. The defendant No.2 and 3 are the banks
with whom the aforesaid amount are kept. During the pendency of the
suit if, the amount of FDR-1 and 2 and also in the saving account will be
released or credited in account of defendant No.1, it will cause
irreparable loss to the legal rights of the parties therefore, it is necessary
to preserve aforesaid FDR’s and the amount lying in the saving account.
6. Considering the facts and circumstances of the case and
documents filed on record, I reached to the conclusion that the plaintiffs
have established prima facie case and balance of convenience also lies
in their favour. If, the temporary injunction is not granted against the
defendant No.2 and 3, prejudice will be caused to the plaintiffs right
which cannot be compensated in terms of money. Hence, in the result,
following order is passed:-
ORDER
1. The Notice of Motion No.2536 of 2019 is hereby allowed in terms
of prayer clause (a) and (b).
2. No order as to costs.
3. The Notice of Motion No.2536 of 2019 stands disposed of
accordingly.
(Smt. Anita B. Sharma)
Judge,
City Civil Court, Greater Bombay
Date : 03.05.2025 C.R. No.03
Dictation typed on :
Checked & Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16.05.2025 at 04.20 p.m. Mrs. Vasanti Dattatray Bhosale
Name of the Judge (with Court Room no.) HHJ Smt. Anita B. Sharma
(Court Room No.03).
Date of Pronouncement of Judgment/Order 03.05.2025
Judgment/Order signed by P.O. on 16.05.2025
Judgment/Order uploaded on 16.05.2025
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