Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2313 OF 2018
IN
SUIT NO.10318 of 1973
Publicity Promotion Products … Applicant
Nandlal Balkishan ...Plaintiff
V/s.
Shushma Jogginderpal & ors. ...Defendants
Appearances:
Ld.Adv.Mr.Manoj Gadiwal for applicant
Ld.Adv.Mr.Mahesh Pol for plaintiff.
Ld.Adv.Mr.Mahir Bhat for defendant Nos.4 (a) to (c)
Defendant No.5 in person.
.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 13th August,2018
ORDER
By way of this notice of motion applicant prayed for grant of
leave to the applicant, to joint the Court Receiver as a defendant in the
proceedings, which is to be filed in Small Causes Court at Dhobi Talao,
Mumbai against M/s Radio Centre, a partnership firm of plaintiff and
M/s Khanna Construction House a partnership concern for seeking
declaration as Tenant in respect of premises admeasuring 1200 square
feet carpet or thereabout on the second floor, East Wing of the building
Khanna Construction House, 44 Abdul Gafar Khan Road, Worli Sea
Face, Mumbai400 018.
MHCC01-007482-2018
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2. In supporting affidavit of Mr.Lakha Kishhinddas Dhankani,
applicant submitted that, applicant is proprietary concern having
address mentioned in the tittle clause of the application. Plaintiff have
filed this suit for declaration as per their prayers in the plaint. Plaintiff
has suppressed the fact that tenant, listed at Sr.No.03 in respect of the
second floor in the suit property i.e Radio Centre had sublet an area ad
measuring 840 square feet of the suit building January,1973 to the
applicant on monthly rent, which is today Rs.8,325/ per month. The
applicant is having necessary documents to show that,they are paying
rent regularly and also obtained electric meter on the address of the
said premises.
3. Applicant submitted that, after receiving letters from the Court
Receiver about this suit and clarification sought by the Court Receiver,
they have forced to approach this Court by making prayer against the
Court Receiver, who has not informed them or given any clarification in
respect of the dispute. Therefore, when notice of BMC about declaring
suit building in category C1 as “unsafe, dangerous, inhabitable
structure needs to be vacated” and demolished pursuant to a Structural
Audit undertaken by Bhoomi Consultants, who was appointed by Court
Receiver directions of the Hon.Bombay High Court dt.08.08.2017, the
Court Receiver issued notices to tenants and occupants in the suit
premises to vacate premises immediately from the suit property.
4. Therefore, the applicant has to take leave of this Court to take
necessary steps as plaintiff have suppressed these facts about
occupation of this applicant and cause him disentitled from his right of
he equity. Therefore, as no harm or prejudice is going to cause to
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plaintiff and defendants in the suit if prayers are granted. Therefore, th
applicant prayed that, notice of motion be made absolute.
5. After service of notice of motion upon plaintiff, plaintiff Nandlal
Balkrishna Sahjwwanii filed their detail reply in affidavit. The Plaintiff
submitted that, this notice of motion is not maintainable. It was not
tenable and proper. All the allegations, aaverments made by applicant
in the notice of motion are false with ulterior motive under guise of
seeking leave of the Court trying to obtain an order regarding its alleged
tenancy, which clearly beyond jurisdiction of this Court. There is no
such type of declaration can be granted by this Court in respect of
alleged occupation and possession of the premises of Khanna
Construction House by this applicant. The plaintiff have also denied
status of this applicant as a proprietary concern and represented by the
proprietor Mr.Lakha Kishindas Dhankani. Application has been moved
to seek permission by the applicant to move before Small Causes Court
to make Court Receiver as a defendant, which is under purview and
jurisdiction of Small Causes Court and therefore, there is no such
permission can be granted. The Court Receiver cannot be individually
sued and/or any proceedings cannot be initiated against Court Receiver,
because of its status.
6. Plaintiff submitted that, BMC has also issued notice under Section
354 of MMC Act on 15.06.2018 and declared the building as unsafe,
dangerous, inhabitable, dilapidated structure and declared in category
C1 and if any untoward incident is taken place due to noncompliance
of that notice by the applicant, it is their own risk, liability and even
putting life and limb of their servants, staff and persons working for
them in danger, but also endangering the safety and security of public
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at large. Only leverage to extort money such type of prayers are being
made by this applicant. Therefore, no such permission can be granted.
Hence, the notice of motion be dismissed with heavy costs.
7. Defendant No.5 inperson also filed reply to this motion and also
denied the status of this applicant as a tenant and a proprietary
concern. He also denied the status of this applicant to be acknowledged
by this Court. In view of the order of Hon.High Court dt.09.06.2000
passed by Their Hon.Lordships N.J Pandya and D.Y. Chandrachud, in
the very suit all tenants and subtenants, occupants were required to
deposit rent/compensations only to the Court Receiver. Therefore, as
44 years applicant has not deposited single rupee as and by way of rent
occupational charges to the Court Receiver. Even this applicant has
committed contempt of Court by violating the order of Hon.Bombay
High Court in Appeal No.959 of 1995 in Suit No.1010 of 1993.
Therefore, it is their own risk and consequence to permit them to take
necessary steps. Therefore, notice of motion for the reliefs as sought by
the applicant needs to be dismissed with heavy costs.
8. Learned counsel for defendant Nos.4(a), 4(b), 4(c) does not
submit their written submission, but orally submitted that notice of
motion be dismissed with costs.
9. Heard learned Advocate Mr.Manoj Gadiwal for applicant, learned
Advocate Mr.Mahesh Pol for plaintiff, learned Advocate Mr.Mahir Bhat
for defendant Nos.4 (a) to (c) and defendant No.5 in person.
10. The Suit No.10318 of 1973 which is transferred form Hon.High
Court having Suit No.1010 of 1973 is in respect of the partnership
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business between plaintiff and defendant about dissolution of
partnership and declaration of accounts. The Hon.Bombay High Court
was pleased to appoint the Court Receiver for the building as per the
order, who is in charge of the said building. The Court Receiver is
taking necessary steps as per directions of the Hon.Bombay High Court.
The suit is now at the fagend of recording crossexamination of the
defendant No.5. Meanwhile this notice of motion came to be moved by
this applicant.
11. After going through the submissions on record plaintiff and
defendant No5, who are contesting the suit, also are of the same
opinion that, on the own risk and consequences of this applicant, the
applicant be permitted to take part in the proceedings, even subject to
find guilty of contempt of Court. The Court Receiver, who is in its
official possession of the suit building, have issued notices about
vacating the premises in view of the notice issued by BMC as building is
declared in category C1 as “unsafe, dangerous, inhabitable structure
needs to be vacated and demolished”. Therefore, risk and consequences
of any untoward incident is of applicant, who alleged to be in
possession of the premises in suit building. Whether their status as
tenant or subtenant, legally or illegally, authorized or unauthorized is
under ambit of jurisdiction of Court of Small Causes, Mumbai. This
applicant has already filed their respective claim/application as per
submission of plaintiff before the Court of Small Causes, Mumbai.
12. In view of this fact, now, applicant seeking permission of this
Court to file necessary proceedings in respect of their alleged
occupation in the premises before the Small Causes Court. Had been
the fact that suit is already been filed without order of this Court or
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prior to appointment of Court Receiver or without even seeking leave
from the Hon.Bombay High Court, the application itself would have
become infructuous. The status of applicant and their consequences,
risk and liability of this applicant is to be determined by the Small
Causes Court, Mumbai and this Court has no jurisdiction to comment
anything on these issues.
13. Learned counsel for the applicant has relied upon the
observations in the case of Everest Coal Company (P) Ltd., Vs. State
of Bihar and Ors., AIR 1977 SC 2304, wherein it has been observed by
the Hon.Apex Court that,
“When a court puts a Receiver in possession of property, the property
comes under court custody, the Receiver being merely an officer or
agent of the court. Any obstruction or interference with the court's
possession sounds in contempt of that court. Any legal action in
respect of that property is in a sense such an interference and invites the
contempt penalty of likely invalidation of the suit or other
proceedings.
But, if either be ore starting the action or during its continuance, the
party takes the leave of the court, the sin is absolved and the
proceeding may continue to a conclusion on the merits. In the
ordinary course, no court is so prestigeconscious that it will stand in
the way of a legitimate legal proceeding for redressal or relief against
its receiver unless the action is totally meritless, frivolous or
vexatious or otherwise vitiated by any sinister factor. Grant of leave is
the rule, refusal the exception. After all, the court is not, in the usual
run of cases, affected by a litigation which settles the rights of parties
and the Receiver represents neither party, being an officer of the court.
For this reason, ordinarily the court accords permission to sue, or to
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continue. The jurisdiction to grant leave is undoubted and inherent,
but not based on black letter, law in the sense of enacted law. Any
litigative disturbance of the court's possession without its permission
amounts to contempt of its authority; and the wages of contempt of
court in this jurisdiction may well be voidability of the whole
proceeding. Equally clearly, prior permission of the court appointing
the Receiver is not a condition precedent to the enforcement of the
cause of action. Nor is it so grave a vice that later leave sought and
got before the decree has been passed will not purge it. If, before the
suit terminates, the relevant court is moved and permission to sue or to
prosecute further is granted, the requirement of law is fulfilled. Of
course failure to secure such leave till the end of the lis may prove
fatal...”
14. Therefore, in view of the above directions, even if this Court
permits the applicant to take necessary steps it is wholly under their
risk, consequences and liability to take necessary action, as applicant
deemed fit necessary or advised. Therefore, notice of motion needs to
be allowed at the risk and liability of applicant and any future
consequences or untoward incident is the responsibility of applicant.
15. In the result, notice of motion needs to be made absolute with
clear understanding about to risk, consequences and liability wholly
upon the applicant. Hence, I pass the following order :
O R D E R
1. Notice of Motion 2313 of 2018 in Suit No.10318 of 1973
in High Court Suit No.1010 of 1973 is made absolute
subject to risk, consequences and liability of the applicant
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to take necessary proceedings before the Hon.Small
Causes Court at Mumbai.
2. Applicant to bear their own costs along with costs of
plaintiff and defendants in this suit.
(ABHIJEET A. NANDGONKAR )
Judge, (C.R.No.20)
Dt.13/08/2018 City Civil Court, Gr. Mumbai
Dictated on : 13.08.2018
Transcribed on : 14.08.2018
Signed on : 14.08.2018
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
14.08.2018 at 5.31 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 13.08.2018
Judgment/order signed by P.O. on 14.08.2018
Judgment/order uploaded on 14.08.2018
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