Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.2534 OF 2019
IN
SUIT NO.1342 OF 2019
Mr.Anilkumar Bramhadev Mishra ..Plaintiff
V/s
M/s. Khalsa Enterprises ..Defendant
Adv. Christina Carlos for plaintiff
None for defendant
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 12/03/2020
ORAL ORDER
1. This notice of motion is taken out by the plaintiff for
restricting the defendant to create any obstacle to the
plaintiff to carry on his day to day business of driving
his taxi being No.MH-03-AT-3156.
2. Heard Ld. Advocate for the plaintiff.
3. None present for the defendant at the time of
argument.
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4. In short the case of the plaintiff is that plaintiff has
deposited Rs.1.80 lacs against Taxi bearing No.MH-
03-AT-3156 from the defendant. Registration
certificate of this vehicle bearing No.MH-03-AT-3156
is obtained by the plaintiff. The permit of the said
vehicle is registered in the name of Sher Mohammed
Abdul Mamon. As per the agreement between
plaintiff and defendant, the plaintiff would pay
Rs.10,670/- per moth for five years to the defendant.
The plaintiff has paid the amount of Rs.10,670/- per
month for 54 months, approached the defendant to
hand over the agreement copy,but, the same was not
handed over to him. Defendant told him that plaintiff
has to pay Rs.7800/- per month for 30 months as late
payment fees. The defendant is harassing the plaintiff
and plaintiff is unable to drive his car. Hence, the
plaintiff has filed the suit with this accompanying
notice of motion.
5. Defendant no.1 has filed written statement. It is the
contention of the defendant that by a Hire purchase
agreement dated 28/11/2012, one Sher Mohammed
Abdul Memon agreed to purchase from the
defendant the taxi No.MH-03-AT-3156 on hire
purchase basis and agreed to repay the amount by 60
instalments of Rs.10,670/- per month. Sher
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Mohammed repaid part of the hire purchase amount
by making 53 instalments leaving balance amount
payable to Rs.75210/- and after calculation of agreed
interest on the defaulted amount, the total amount
payable comes to Rs.1,32,510/-. Without knowledge
of the defendant, Sher Mohammed sold the taxi to
the plaintiff and thereafter fresh hire purchase
agreement was executed between the plaintiff and
defendant on 05/03/2018 for Rs.1,70,000/-. The
said amount was agreed to be payable by 30
instalments of Rs.7800/- each. The plaintiff
committed default in making payments and therefore
the total arrears due and payable by him to
defendant became Rs.2,34,000/-. The plaintiff is
running the taxi without valid permit and license.
The plaintiff is not the owner of the taxi. Defendant
as owner of the taxi has every right to have control
and possession of the taxi. Defendant on several
occasions called upon the plaintiff to hand over
possession of the taxi as the plaintiff has committed
breach of the terms of hire purchase agreement.
Hence, defendant prayed for dismissal of notice of
motion.
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6. On the rival submissions of the parties, following
points arise for my determination and findings to it
are recorded for the reasons stated hereinafter:-
POINTS
1. Whether the plaintiff has made out
case in his favour?
2. Whether needle of balance of
convenience tilt in favour of the
plaintiff?
3. To whom the irreparable loss would be
caused?
4. What order?
FINDINGS
Point Nos.1 to 3
7. It is the contention of the plaintiff that plaintiff
repaid 54 installments of Rs.10670/- each. The
plaintiff approached Mr.Ruby Sarkar of Singh Motors
to hand over to him the agreement copy which was
duly signed by him. The defendant refused to give
the copy of the said agreement. On the contrary, the
staff of defendant abused the plaintiff. He was called
upon to pay Rs.7800/- for more 30 months stating
late payment fees etc. The plaintiff refused for the
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same and informed that he has to pay installments
only for six months. But the defendant did not pay
any attention to what the plaintiff said he also put
plaintiff into trouble by putting a false charge of
robbery.
8. It is the contention of the plaintiff that he has filed
police complaint against Ruby Sarkar of Singh
Motors Pvt. Ltd. The contention of the plaintiff is
that he was compelled to file other agreement. On
perusal of the police complaint, it appears that the
plaintiff was compelled to sign the other agreement.
The plaintiff lodged the complaint on 12/04/2018.
The contention of the plaintiff is that he was forced
to sign on the agreement by the defendant in the
year 2018 of which the complaint is lodged on
12/04/2019. The complaint does not reflect on
which date the plaintiff was threatened and forced to
sign the agreement. The plaintiff was forced to sign
the agreement in the year 2018 and he filed the suit
in the year 2019, is not acceptable. The plaintiff has
issued notice to the defendant on 04/04/2019 but
the defendant did not respond to it. In this matter as
on day the plaintiff is seeking the relief that the
defendant should not obstruct him in plying his taxi
bearing no. MH-03-AT-3156. On perusal of the
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registration certificate, the taxi bearing no. MH-03-
AT-3156 is standing in the name of one Mr.Sher
Mohammed Abdul. The plaintiff is seeking relief in
respect of vehicle which is not registered in his name.
There is no avernment to show that the plaintiff was
restrained on particular date by the defendant for
plying the taxi. The defendant admits that there is
dispute of balance amount to be paid. At present the
issue which is concerned is that whether the plaintiff
is entitled for the relief claimed and vehicle is not
registered in the name of the plaintiff. The registered
owner of the vehicle is not party to the suit and
therefore in his absence relief cannot be granted in
favour of the plaintiff. The plaintiff has not made out
any prima facie case and balance of convenience
does not tilt in favour of the plaintiff. No irreparable
loss would be caused to the plaintiff if the prayer is
not granted. Hence, I answer point nos.1 to 3 in the
negative.
Point no.4
9. In view of the above discussion and findings to point
nos.1 to 3, this notice of motion needs no
consideration. Hence, it is expedient to pass
following order:-
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ORDER
1.N/M No.2534/2019 stands rejected.
2.Costs in the cause.
3.N/M No.2534/2019 is disposed off accordingly.
12/03/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 12/03/2020
Typed on : 19/09/2020
Signed on : 21/09/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
22/09/20 at 02.16 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/
order
12/03/2020
Judgment and order signed by P.O. 21/09/2020
Judgment/order uploaded on 22/09/2020
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