Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2767 OF 2019
IN
SUMMARY SUIT NO.7855 OF 1998
(HIGH COURT SUIT NO.1639 OF 1998)
1. Mohini Thanwardas Tharumal & ]
2. Thanwardas Tharumal. ] … Plaintiffs
V/s.
1. Joy Ice Creams, a partnership firm ]
and Another. ] ... Defendants
Appearances :
Ms. Kavita, Ld. Adv. for plaintiffs.
Mr. S.B. Suryavanshi, Ld. Adv. for defendant No.5.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 27th November, 2019
ORAL ORDER
1. Defendant No.5 filed this Notice of Motion to direct the
Account Department to deduct the proportionate amount of the
defendant No.5 and handover the balance amount with interest till its
realization to the defendant No.5.
MHCC01-007639-2019
-- 1 of 5 --
2 NM 2767/19 in
Sum. Suit 7855/98
2. Perused Notice of Motion, Affidavit in support of Notice of
Motion, Affidavit in reply of plaintiff and affidavit in reply of defendant
No.4.
3. Heard both sides.
4. Following points arise for my determination. I record my
findings thereon for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether direction can be given to the
Account Department to deduct the
proportionate amount of the defendant
No.5 and handover the balance amount
with interest till its realization to the
defendant No.5 as prayed for ?
In the negative.
2. What Order ? As per final order.
REASONS
As to point Nos.1 & 2.
5. In brief, it is the contention of the defendant No.5 that
plaintiff filed Company Petition bearing No.449 of 1996 against the
defendants in the Hon'ble High Court. The Hon'ble High Court has
directed defendant No.5 to deposit an amount of Rs.40,000/ in the
Court and liberty was granted to the plaintiff to file the suit.
Accordingly, the defendant No.5 deposited an amount of Rs.40,000/ in
the Court. Thereafter the plaintiff filed suit against the defendants
before the Hon'ble High Court. The said suit is disposed of by decree on
29.6.2019. As per the said decree defendant No.1, 4 and 5 are directed
-- 2 of 5 --
3 NM 2767/19 in
Sum. Suit 7855/98
to pay amount of Rs.58,020/ to the plaintiff and to pay interest @ 18%
p.a. on the principle amount of Rs.40,000/ from the date of the suit till
realization. Now the amount which is deposited by the defendant No.5
is lying with the Account department i.e. Rs.1,98,534/ as on
12.06.2019 in the said suit.
6. The plaintiff No.1 filed reply. In brief it is contention of the
plaintiff No.1 that all the adverse contentions are denied. As per the
decree the amount due and payable by the defendant Nos.1, 4 and 5
jointly and severally to the plaintiffs is as on 13.8.2019 is Rs.2,09,220/
(Rs.58,020 + 1,51,200 i.e. interest at the rate of 18% p.a. on
Rs.40,000/ from 13.4.1998 to 13.8.2019). Plaintiffs are entitled to
further interest till realization of the decreetal amount as per the decree
dated 29.6.2019.
7. Defendant No.4 filed reply to the Notice of Motion. In
brief it is contention of the defendant No.4 that defendant No.5 is
misusing the process of Law. The defendant No.4 is aggrieved by the
order dated 29.6.2019. The said order dated 29.6.2019 is wrongly
passed against him. He will take appropriate steps in the above matter
by moving to the Hon'ble High Court. Therefore, he prayed Notice of
Motion be dismissed with costs.
8. Admittedly, decree is passed in the said Summary Suit on
29.6.2019. As per the said decree defendant Nos.1, 4 and 5 are jointly
and severally liable to pay to the plaintiffs an amount of Rs.58,020/
with interest at the rate of 18% p.a. on the principal amount of
Rs.40,000/ from the date of the suit till its realization. Therefore, I am
-- 3 of 5 --
4 NM 2767/19 in
Sum. Suit 7855/98
of the considered view that the plaintiff has choice to execute decree
against the defendant Nos.1, 4 and 5 jointly or severally, therefore,
directions cannot be given as prayed for. Hence, I record my findings
on point No.1 in the negative and point No.2 the Notice of Motion is
dismissed as per final order. Hence following order:
ORDER
Notice of Motion No.2767 of 2019 is dismissed.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 27/11/2019 City Civil Court, Gr. MUMBAI
Dictated on : 27/11/2019.
Transcribed on : 28/11/2019.
Signed on : 29/11/2019.
-- 4 of 5 --
5 NM 2767/19 in
Sum. Suit 7855/98
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
29.11.19 at 04.50 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 27.11.19
Judgment/order signed by P.O. on 29.11.19
Judgment/order uploaded on 29.11.19
-- 5 of 5 --