Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 2240 of 2018 in Suit no.1323 of 2018
MHCC010072432018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER IN NOTICE OF MOTION NO.2240 OF 2018
IN
SUIT NO. 1323 OF 2018
1. Mr. Anil Omprakash Arya & Anr. ...Plaintiffs
V/s
1. Raja Omprakash Arya ....Defendant.
AND
1. M/s. SRD Logistics Pvt. Ltd. & Anr. ....Respondents
CORAM : HIS HONOUR JUDGE
SHRI R.R. PATARE
(COURT ROOM NO. 01)
DATE : 5th DAY OF APRIL, 2024
-: Appearances:-
Adv. Rohit Shetty for plaintiffs
Adv. J. C. Mahindro for defendant
ORAL ORDER
From the pleadings of parties following point arises for
my determination in this Notice of motion and I have answered the
same for the reasons stated hereunder:
Sr.
No
Points Findings
1. Whether plaintiff has made out
prima facie case for grant of order
In the negative
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of injunction as prayed?
2. Whether balance of convenience is
in favour of plaintiff ?
In the negative
3. Whether plaintiff is suffer
irreparable loss ?
In the negative
4. What order ? As per final order.
2. Perused pleadings and heard both the Advocates for the
parties. This notice of motion is taken out by the plaintiffs seeking
order of injunction directing the defendant to pay 2/3rd share of the
license fee/ compensation in respect of godown situated on ground
floor at Economic house,1st flank road, Chinchbundar, Mumbai
(hereinafter referred at ‘ Suit Godown’ for the short.) The plaintiffs
also seek order directing defendant to hand over copies of leave and
license agreement executed by defendant in favour of respondents to
the present notice of motion. The plaintiffs also seek order directing
respondents to the present notice of motion not to pay license fee /
compensation to the defendant to the extend of their 2/3rd share.
3. The plaintiffs came with a case that, suit godown is own
by their deceased mother Bimla Devi. The plaintiffs have produced
on record copy of order passed by Hon’ble Supreme Court of India in
Civil Appeal no. 6771 of 2004 dated 09.05.2005 along with
settlement terms. From the settlement terms, it is seen that suit
godown is allotted in favour of Bimla Devi. Leave and license
agreement dated 06.11.2009 is also brought on record at Exhibit-C.
The leave and license agreement shows that Vimla Devi executed
agreement of leave and license of suit godown in favour of one
Dharodia Fazal Abdul Sattar. The reply of the defendant to plaintiffs
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notice dated 16.10.2017 is brought on record at Exhibit-H, wherein
the defendant no.1 claims that, he himself, his two brothers and their
sisters are the only legal heirs of their parents. He further claims that
the suit godown was allotted to him as per oral family settlement.
Similar defence is also taken in the written statement by the
defendant.
4. The defendant came with the specific defence that suit
godown was allotted to him as per oral family settlement. It is
further contended that, suit of plaintiff is bad for non-joinder of
necessary parties. The defendant further claims that the suit of
plaintiff is for partition, however, he did not implead all the family
properties in the suit. Specific objection to that effect is recorded in
para 5 of the written statement.
5. The learned advocate for plaintiff would submit that the
suit godown is owned by their deceased mother. The plaintiffs are
having 2/3rd share and entitled to receive license fee / compensation
to the extend of their share. He would further submit that at present
the defendant is receiving a sum of Rs.6,00,000/- per month towards
license fee / compensation. The learned advocate made reference to
the agreement to the leave and license on record to substantiate his
above claim. He would further argued that Court can direct the
defendant to deposit license fee/compensation by invoking provisions
of Order 39 Rule 10 of the Code of Civil procedure. He pointed out
that the defendant himself has admitted the claim of plaintiffs in the
suit godown and came with the specific defence, regarding non-
joinder of necessary parties and properties. He would argue that the
defendant is holding suit godown as a trustee for the plaintiffs. The
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learned advocate relied on unreported judgments of Hon’ble High
Court at Calcutta Civil Appellate Jurisdiction, appellate side in the
case of Multiple Resorts Private Limited Vs Mars Bullion Trade Pvt.
Limited delivered on 24/02/2017, wherein it is observed in Para Nil
“ On perusal of the said provision, it appears to us that the following
conditions are required to be satisfied for obtaining relief under Order
39 Rule 10 of the Code of Civil Procedure:-
(i) Suit must be a suit for realization of money or the claim of the
plaintiff in the suit is such which is capable of delivery.
(ii) If any of the aforesaid two conditions is satisfied then the Court
can invoke its jurisdiction under Order 39 Rule 10 of the Code of Civil
Procedure provided any of the following conditions is satisfied:-
(a) The Court must find out from the pleading of the party against
whom such relief is claimed, as to whether he admits that (i) he holds
any money or other thing as a trustee for another party; or (ii) such
money belongs to the other party or (iii) is due to the other party.
If the conditions as referred to above are satisfied, Order 39 Rule 10
of the Code of Civil Procedure can be invoked”.
6. In this back drop, it is just and necessary to appreciate
the pleadings and evidence on record. The prayers of plaintiffs in the
suit is for declaration that license fee / compensation earned out of
suit godown by the defendant to the exclusion of plaintiffs is illegal,
unlawful. The plaintiff also seek permanent order and injunction
restraining the defendant from receiving license fee / compensation
in excess of his 1/3rd share earned out of suit godown. The plaintiffs
also seek permanent order and injunction directing defendant to pay
license fee / compensation to them, to the extend of their 2/3rd
share earned out of suit godown. The plaintiffs also seek order
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directing defendant to hand over copies of leave and license
agreement executed by defendant in favour of licensees. Similar
reliefs are also claimed by plaintiffs in this notice of motion. The
respondents i.e. alleged licensees are not party to the suit. The
plaintiffs did not seek relief of declaration as regards their title to the
suit godown. No prayer for partition of suit godown is made by the
plaintiffs in the present suit. However, plaintiffs have claimed their
right, interest, in the suit godown to the extend of 2/3rd share. With
this pleadings and evidence on record, it is just and necessary to
examine whether plaintiffs are entitled to get reliefs claimed in the
notice of motion. The prayers made in the notice of motion are in the
nature of final relief. It is settled that, at interim stage final relief
cannot be granted in favour of party. The plaintiffs have not made
out any ground or pointed out any circumstances to grand interim
relief in the nature of final relief. The plaintiffs also seeks direction
for production of document of alleged leave and license executed
between defendant and the respondents in the notice of motion. The
learned advocate for plaintiffs would submit that the document called
for are necessary to claim further relief in the suit. It is to be noted
that plaintiffs seek aid of the Court to collect evidence for making
claim against the defendant. The process of Court cannot be used for
collecting evidence by any party to the suit. The defendant came with
the defence that suit premises was allotted to him in oral family
settlement, in this circumstances it is just and necessary to adjudicate
the right of plaintiffs to get their share in the license fee /
compensation earned out of suit premises. The rights of parties to the
suit can be determined at the final hearing of suit. Admittedly, the
defendant is in possession of suit premises. No doubt the defendant
has pleaded that the plaintiffs did not file suit for partition and that
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the sister of plaintiffs and defendants are not impleaded in the suit.
The defendant came with the defence that the suit is bad for non-
joinder of necessary party. The plaintiffs also claimed that the suit
premises was owned by their mother. The plaintiffs did not deny that
they are having sister. In this back drop, it is not proper to come to
the conclusion at the stage of hearing of notice of motion that
plaintiffs are entitled to get share to the extend of 2/3rd as claimed
by them. In this back drop, the case law cited supra on behalf of
plaintiffs will not help the plaintiffs in the present case. The facts of
the present case are not identical with the case law cited supra. In the
result, directing the defendant to pay amount to the plaintiffs to the
extend of 2/3rd share out of earning of suit premises at the stage of
hearing of notice of motion will cause irreparable loss to the
defendant. The pleadings and documentary evidence on record,
suggest that the defendant is in possession and managing the suit
premises. Hence, the balance of convenience lies in favour of the
defendant. The plaintiffs have failed to made out prima facie case for
grant of order of injunction. In the result, points no.1 to 3 in the
negative and following order is passed:
ORDER
1. Notice of motion no.2240 of 2018 is hereby dismissed
with no order as to costs and accordingly disposed off.
(R.R.Patare)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.05.04.2024 (C.R. No.1)
Dictated on : 05.04.2024
Direct Typed on:05.04.2024
Signed on : 05.04.2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 06.04.2024 NAME OF STENOGRAPHER(G-I)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri R. R. Patare
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 05.04.2024
JUDGMENT/ORDER signed by P.O. on 06.04.2024
JUDGEMENT/ORDER uploaded on 06.04.2024
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