Full Order Text
Order 1 · 02 Nov 2018 · CNR MHCC010074572018
Order Details: Notice of Motion Pdf Text: NM 2303/18 SUIT 7537/2006 1 CNR NO.MHCC010074572018 IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI NOTICE OF MOTION NO.2303 OF 2018 IN SUIT NO.107537 OF 2006 Seema Narendra Vashist ...Applicant Versus In the matter between Dinesh Chandra Maingi .. .. Plaintiff Versus Seema Narendra Vashist ...Defendant Plaintiff in person present. Advocate Shri. Rahul Motkari for Defendant no.1. Advocate Shri. Sandip Waghmare for Defendant no.2. Coram : Her Honour Judge Smt. Pushpa N. Rao Ad hoc Judge CR No. : 32 Dated : 2nd November 2018 ORDER 1. Defendant no.1 taken out this motion that a) Plaintiff be directed to serve on the legal heir of defendant no.3 as per provisions of law. b) The service of affidavit dated 08/01/2018 filed by plaintiff showing the service upon the legal heir of defendant no.3 be set aside. -- 1 of 4 -- NM 2303/18 SUIT 7537/2006 2 2. Defendant no.3 expired on 06/04/2015 at Delhi leaving behind the legal heirs as mentioned in the affidavit of service. However, it appears from the affidavit of service that writ of summons is not actually served on the legal heir of defendant No.3. Hence, defendant no.1 taken this motion seeking direction to the plaintiff as per prayer clause. 3. Plaintiff does not filed reply on the motion but argued the motion. 4. Heard advocate Shri.Motkari for defendant no.1 and plaintiff in person. 5. I have perused the affidavit of service dated 08/01/2018 vide Exh9 placed on record by the plaintiff. I have also perused the plaint and reliefs sought by plaintiff against the defendants. The suit is for recovery of a sum of Rs.23,19,169/ and an order of injunction with respect to the flat No.B/14 Tranquil Treat CoOperative Housing Society, Yari Raod, Versova, Mumbai61 and appointment of commissioner. Plaintiff came before the court with a case that in the year 1998 he had given friendly loan of Rs. 5 lakhs to the defendant No.1 and defendant No.1 had secured the said loan by way of equitable mortgage by deposit of the original share certificate of the said flat with the plaintiff. 6. I have also perused the written statement of defendant No.1 dated 17/06/2013. It is not the contention of the defendant in their written statement that flat No.B/14 Tranquil Treat CoOperative Housing Society, Yari Raod, Versova, Mumbai61 is not the joint family -- 2 of 4 -- NM 2303/18 SUIT 7537/2006 3 property of the defendants. There are several legal heirs of the defendant No.1. Some of the defendants are served by registered post by the plaintiff, therefore, there is the representation of deceased defendant No.1 on record, that is sufficient for grant of relief ask for in the suit against the defendant and therefore, the presence of all the legal heirs is not required to be secured. 7. In view of above discussion, notice of motion is nothing but the abuse of process of law, hence, deserves to be dismissed. I pass the following order. ORDER Notice of Motion No.2303/2018 is dismissed with costs. Date : 02/11/2018 (Pushpa N. Rao) Ad hoc Judge City Civil & Sessions Court Greater Mumbai Direct typed on computer : 01/11/2018 Signed by HHJ on : 02/11/2018 “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER”. UPLOAD DATE AND TIME NAME OF STENOGRAPHER 03/11/2018 at (3.30 p.m.) Mrs. J.V.Pawar Name of the Judge (With Court room No.) HHJ Smt.Pushpa N Rao C.R.No.32 Date of Pronouncement of JUDGMENT/ORDER 02/11/2018 JUDGMENT/ORDER signed by P.O.on 02/11/2018 JUDGMENT/ ORDER uploaded on 03/11/2018 -- 3 of 4 -- NM 2303/18 SUIT 7537/2006 4 -- 4 of 4 --