Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE COURT OF SESSION FOR GREATER BOMBAY
NOTICE OF MOTION NO.2712 OF 2019
IN
SUIT NO.8414 OF 2000
Ahura Mazda Dairy Farm Pvt.Ltd.
Registered Office at G.SX,91C,
Veer Jijamata Nagar, Next to Nehru
Science Centre, Dr.E.Moses Road,
Mumbai400 018 .....Applicant
In the matter between
M/s.Kwality Food & Masala Products
185/187, Samuel Street, Khoja Galli,
Mumbai400 009 ....Plaintiff
V/s
Ahura Mazda Dairy Farm Pvt.Ltd.
Registered Office at G.SX,91C,
Veer Jijamata Nagar, Next to Nehru
Science Centre, Dr.E.Moses Road,
Mumbai400 018. .... Defendant
APPEARANCE:
Advocate Swati Sagvekar for applicant.
Advocate P.D.Gandhi for plaintiff.
Advocate Sonal Doshi for defendant.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 08th November, 2019
-- 1 of 6 --
2
ORDER
Perused Notice of Motion alongwith affidavit and reply.
2. Defendant filed Notice of Motion to transfer the said suit to the
Designated Court/Special Court constituted under The Maharashtra of
Protection of Interest of Depositors (in Financial Establishment)
Act,1999. It is submitted by the defendant that the plaintiff has filed
suit for declaration that the agreement dated 2nd July 1998 terminated
by the plaintiff and same is not effective and binding law and or any
other relief. It is further submitted that the suit property which is
situated in Village Marol, Taluka Andheri in registration sub District
Bandra and District Mumbai Suburban. It is further submitted that
according to the request of plaintiff there is agreement in between
plaintiff and defendant and defendant had purchased suit premises for
consideration of Rs.70 lacs which was agreed in between plaintiff and
defendant. It is further submitted that defendant had paid of Rs.20 lac
to the plaintiff and also ready to pay remaining amount. However,
plaintiff was not ready to hand over the vacant possession of the
remaining part of suit premises and the conveyance deed could not be
executed and the defendant had withheld the balance payment to be
made to the plaintiff.
3. It is further submitted that the defendant had taken certain loan
from various private investor for commencing business of dairy
production however, the daily business could not function upto the
mark and therefore, defendant started defaulting in making payments
and investor register criminal cases against its Director. It is further
submitted by the defendant that the present plaintiff filed suit against
him before the Court for declaration and another relief however, as per
-- 2 of 6 --
3
Section 6 and 14 of Maharashtra Protection of Interest Depositors in
Financial District Act 1999 (MPID Act). This Court has no jurisdiction
to try the suit and lastly, it is prayed that the present suit deserves to be
transferred before the Special Court constituted under the MPID Act.
4. Plaintiff resisted the Notice of Motion by way of reply. It is
contended by the plaintiff that the Notice of Motion is not maintainable.
It is pointed out by the plaintiff that the defendant has failed to mention
under which provision of law Notice of Motion has filed and therefore,
the Notice of Motion be dismissed with cost. It is contended by the
plaintiff that the Notice of Motion taken out by the defendant as one
more attempt to decree against him. It is submitted by the plaintiff
that he is owner of the suit property till date as stated in the plaint and
he is not concerned with the matter which are pending against the
Director Company i.e. defendant. It is further contended that plaintiff
by there is no question of transfer of the present suit before the MPID
Court as the MPID Court has no jurisdiction to try the suit between the
plaintiff and defendant. It is further contended by the plaintiff that
subject matter of the suit is not against the Director of defendant before
the MPID Court. The plaintiff has filed suit against defendant for non
performance of agreement of sale dtd.2nd July 1998 and termination
thereof and recovery possession of the suit property. This is a Civil
matter and the above suit cannot be entertained and decided by the
MPID Court and the provision of the MPID are not applicable to the
present suit. Lastly, it is prayed that defendant is not entitled for any
relief and it be rejected with cost.
5. Ld.Counsel for defendant Swati Sagvekar submitted that in view
-- 3 of 6 --
4
of provision of 6 and 14 of MPID Act, this court has no jurisdiction to
try the suit. She further submitted that suit property is in possession of
concerned under the provision of MPID Act and no Civil Court has
jurisdiction to try and decide issue which is involved under the
provision of MPID Act. She further submitted that in view of provision
cited by her only the MPID Court has jurisdiction to try the suit. Lastly,
she prayed that suit be transferred to the MPID Court as prayed by her
in the Notice of Motion.
6. Per contra, Ld.Counsel for plaintiff without touching to the merit
Notice of Motion submitted that if defendant want to transfer the said
suit to the MPID Court then this Court has no jurisdiction to entertain
this Notice of Motion. He drew my attention towards Section 24 of CPC
and submitted that only the Hon'ble P.J.of this Court having power to
entertain and transfer the matter to one court to another under Section
24 of CPC.
7. In reply Ld.Counsel for defendant submitted that if liberty is
granted then she is ready to prefer application before the Hon'ble P.J.
for transfer the suit from this court to the Court of MPID Court. In reply
Ld.Counsel for plaintiff submitted that she is in liberty to file application
u/s 24 of CPC before the Hon'ble P.J. and therefore, no need to grant
liberty to file application under section 24 of CPC.
8. After hearing Ld.Counself for both the parties I drew my attention
towards the record. According to the suit of plaintiff the plaintiff has
filed suit for declaration that the agreement dated 2nd July 1998 stands
terminated by the plaintiff and the same is not effective and binding in
-- 4 of 6 --
5
law to the suit property which is situated at Village Marol, Taluka
Andheri is registration sub District Bandra and District Mumbai
Suburban. Admittedly, the defendant had agreed and undisputed the
contention regarding the execution of agreement. However, defendant
raised dispute that the defendant failed to default to make payment of
investor criminal cases registered against him in the Economic Offence
Wing Mumbai and therefore, the suit property is in possession of
concerns under the provision of MPID Act and therefore, suit be
transferred to the Court of MPID. As argued by Ld.Counsel for
defendant she drew my attention towards Sec.6 and Sec.7 and Sec.14 of
MPID Act and she made prayer to transfer the suit from one court to
another court. Certainly as pointed out by ld.Counsel for plaintiff as per
Sec.24 of CPC power to transfer suit from one Court to another Court is
vested with Hon'ble P.J. Admittedly, this court has no power to transfer
the suit from one court to another court as fairly admitted by defendant
she submitted that if liberty is granted to her then she made appropriate
application before Hon'ble P.J. In the above discussion I proceed to pass
following order.
ORDER
1. Notice of Motion No.2712 of 2019 is disposed off.
2. The defendant is at liberty to make appropriate application
before Hon'ble P.J.
Date:08/11/2019 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 08/11/2019
Typed on :08/11/2019
H.H.J.Signed on :08/11/2019
-- 5 of 6 --
6
-- 6 of 6 --