Order 1

Order Details: Notice of Motion
Pdf Text: NM In SC 435/18 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2262 OF 2018
(CNR NO.MHCC010072912018)
IN
SUMMARY SUIT NO.435 OF 2018
(CNR NO.MHCC010116802017)
Mrs.Kesar Lalji Shah,
W/o.Shri.Lalji Hemraj Shah
Age about 64 years, A Senior Citizen
Indian Inhabitant of Bombay,
Occupation :Housewife
R/o: D4, 1 st Floor, Pannalal Terrace
Lamington Road, Grant Road (East)
Mumbai 400007. ...Plaintiff
V/s
1. Ms. Kanchi Manish Shah ,
D/o.Shri. Manish Harjivandas Shah
Aged about 34 years,
Residing at: Pannalal Terrace,
BWing, Room No.38, 2 nd Floor,
Dr.D.B.Marg, (Lamington Road),
Grant Road, (East), Mumbai 400007.
And also at:
Shri.Vivekanand Nagar C.H.S.Ltd.
Building No.1, Bwing, Flat No.7,
Ground Floor, 56, S.V.Road,
Borivali (West), Mumbai400092.
2. Mr.Manish Harjivan Shah
Aged about : 68 years
Residing at: Pannalal Terrace,
BWing, Room No.38, 2 nd Floor,
Dr.D.B.Marg, (Lamington Road),
-- 1 of 6 --
NM In SC 435/18 Oral Order 2
Grant Road, (East), Mumbai 400007.
And also at:
Shri.Vivekanand Nagar C.H.S.Ltd.
Building No.1, Bwing, Flat No.7,
Ground Floor, 56, S.V.Road,
Borivali (West), Mumbai400092. ...Defendants
Coram : His Honour Judge Shri M.M.UMAR(C.R. No.28)
Dated : 03/11/2018
Adv. Ms.Kavita Shinde for plaintiff.
Adv. Ms.Neeta Parikh for defendants.
ORDER BELOW NOTICE OF MOTION NO.2262/18
1. This Notice of Motion is taken out by the plaintiff for
attaching the property bearing flat no.7, BWing, Swami Vivekananda
Nagar Cooperative Housing Society Ltd., Borivali (W) and property
bearing Shah Sadan building no.1 situated at 119, Ganesh Peth Lane, at
Rammaruti Road, Mahim Division, Mumbai.
2. Read the application and reply.
3. Heard. The learned advocate for the plaintiff has submitted
that the plaintiff has filed the present summary suit for the recovery of
Rs.30,00,000/ as the said amount was given by the plaintiff to the
defendant for purchasing the flat. It is submitted that though the
defendant has deposited an amount of Rs.24,00,000/ in the Hon'ble
High Court as per the bail order passed in Bail Application no.1794/16
-- 2 of 6 --
NM In SC 435/18 Oral Order 3
dated 22/12/2016, the said amount not pertaining to the amount
involved in the suit as the said amount is deposited by the defendant
for bail in criminal case. It is submitted that the defendant has
informed to the Court that they have sold the flat and received the
amount. Therefore, it is submitted that the defendants are trying to
defeat the claim of plaintiff for one or another reason. Therefore, it is
just and necessary to attach the abovesaid property belonging to the
defendants, otherwise it will be difficult for the plaintiff to recover the
amount.
4. Per contra, the advocate for defendant has submitted that the
plaintiff is harassing to the defendant for one or another reason. It is
submitted that the defendant has paid Rs.6,00,000/ to the plaintiff on
04/06/2015, at the office of defendant no.1's uncle Mr.Rajesh Parikh.
So also, it is submitted that the defendant was arrested by the police in
connection with a crime registered on the report of Manish Shah and as
per the order of Hon'ble High Court in Bail Application No.1794/2016,
dated 22/12/2016, the defendant has deposited an amount of
Rs.24,00,000/ in the High Court. It is submitted that the plaintiff
moved an application for the withdrawal of that amount from the
Hon'ble High Court and the Hon'ble High Court rejected that
application. It is submitted that the plaintiff has no case for the
attachment of any property belonging to the defendant. Therefore, it is
requested to reject the Notice of Motion as it is false with the
knowledge of plaintiff.
-- 3 of 6 --
NM In SC 435/18 Oral Order 4
5. I have duly considered the above submissions of both the
sides so also, I have gone carefully through the documents on record.
There is no dispute that the defendant has deposited an amount of
Rs.24,00,000/ in the High Court as per the abovesaid bail order dated
22/12/2016. There is no dispute that the plaintiff moved an application
for the withdrawal of that amount and it is rejected by the Hon'ble High
Court.
6. There is no dispute that the provisions of Order 38 Rules 5
and 13 of the CPC empower the Court to attach property belonging to
the defendant even before judgment is pronounced against him/her.
This can be done if the Court is satisfied that with the intent to obstruct
or delay the execution of any decree that may be passed against him
the defendant is (a) about to dispose of the whole or any part of his
property, or (b) about to remove the whole or any part of his property
beyond the local limits of the jurisdiction of the Court and such
conditions exists, the Court is empowered to direct the defendants to
produce the security within the time fixed by it in such sum as may be
specified by it or to show by the defendant should not furnish such
security . If the defendant fails to show cause, or fails to furnish security
then the Court is empowered under rule 5(3) of Order 38 of CPC, to
make an order attaching the property before Judgment.
7. In the case in hand I am not satisfied that the plaintiff has
produced any documentary evidence to show that the defendant is
-- 4 of 6 --
NM In SC 435/18 Oral Order 5
about to dispose of whole or any part of her property with an intent to
ouster or delay the execution of any decree that may be passed against
her. Contrary to this it appears from the contention of defendant no.1
that she has already paid an amount of Rs.6,00,000/ to the plaintiff on
04/06/2015 as mentioned above and there is no dispute that she has
deposited Rs.24,00,000/ in the Hon'ble High Court. The mere
contention of the plaintiff that defendant deposited said amount in
connection with a criminal case is not sufficient to attach the aforesaid
properties. It appears that defendant has already created third party
interest in the aforaid properties if the attachment order is passed there
will be multiplicity of the proceedings and nothing more.
8. Thus, in view of the matter, considering the nature of the
suit, facts and circumstances on record, in my opinion, the plaintiff has
failed to establish that the attachment of the property before judgment
is required to be made. Hence, following order:
: ORDER :
1. Notice of Motion no.2262/18 is rejected.
2. No order as to costs.
(M.M.UMAR)
Judge,
03/11/2018 City Civil Court, Gr. Mumbai
Date of Dictation : 03/11/18.
Date of Transcription : 13/11/18.
Date of signature : 17/11/18
-- 5 of 6 --
NM In SC 435/18 Oral Order 6
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
17/11/2018 1.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR
No.28)
Date of Pronouncement of
Judgment/Order.
3/11/18
Judgment/order signed by P.O on 17/11/18
Judgment/order uploaded on 17/11/18
-- 6 of 6 --