Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 241418 in Suit No.130417
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2414 OF 2018
IN
SUMMARY SUIT NO. 1304 OF 2017
(CNR NO.MHCC010077832018)
Zaverchand Devji Dedhia
Karta of Zaverchand Devji Dedhia HUF ….Plaintiff
Versus
Paras V. Shah
Proprietor of M/s. A.P. Corporation ... Defendant
Appearance:
Shri. Ritesh Solanki, Advocate for plaintiff.
Shri. Vijay Kurle, Advocate for defendant.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 13/02/2019
ORAL ORDER
1) This Notice of Motion is filed by the plaintiff to
attach the property of the defendant i.e. Flat No.A702 in
Sarvodaya Heights, Nahar Sarvodaya Heights Coop.Housing
Society Ltd., Jain Mandir Marg, Gavni Pada Sarvodaya Nagar,
Mulund (West), Mumbai – 400 080.
2) The Notice of Motion is supported by affidavit of
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plaintiff stating that he has filed suit for recovery from the
defendant. The defendant even after service of writ of summons
failed to appear. The plaintiff has paid loan of Rs.15 Lac to the
defendant. Though the defendant has paid some of the
installments but, when the plaintiff demanded the principle
amount, the defendant failed to pay the said amount even after
legal notice was issued to the defendant. The plaintiff has learnt
from the related sources that the defendant is in huge debts. The
defendant has already sold and transferred in hurry his
immovable property at Vapi for consideration of Rs.90 Lacs. Then
too he has failed to principle amount to the plaintiff. The plaintiff
has apprehension that defendant will alienate property stated in
Notice of Motion to avoid payment to the plaintiff. Hence, prayed
to allow the Notice of Motion.
3) The defendant filed reply and has denied the
contents of Notice of Motion in toto. It is the contention of the
defendant that plaintiff fabricated the promissory notes dated
22/09/14. The promissory note is not signed by the defendant.
The plaintiff has received Rs.5 Lac as full and final payment
against the cheque but still the suit to pursue to fulfill illegal and
unlawful demand of plaintiff. Hence, prayed to reject Notice of
Motion.
4) Heard advocate Shri. Ritesh Solanki for plaintiff and
Advocate Shri. Vijay Kurle for defendant. Perused the Notice of
Motion supported by affidavit and reply of defendant supported
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by affidavit.
5) The plaintiff has filed suit for recovery of Rs.15 Lac.
The defendant has not denied the receipt of Rs. 15 Lac from
plaintiff by way of cheque. Further its contention of defendant
that he has repaid the loan amount to the plaintiff. The defendant
failed to appear before the court even after service of writ of
summons within 10 days.
6) Advocate for plaintiff during the arguments stated
that wife of the defendant approached the plaintiff and prayed
for the settlement stating that they will pay the amount. The
plaintiff has drawn my attention to the SMS filed in Notice of
Motion No.2396/18. Though, the consent terms were ready, the
defendant failed to appear to sign consent terms. The plaintiff has
specifically contended that the defendant has sold his property
situated at Vapi and has received amount of Rs.90 Lac but failed
to repay the amount of the plaintiff. The defendant in the reply
has not denied the said fact. The apprehension of the plaintiff is
well found. In case plaintiff succeeds in the suit he will be able to
get decree satisfied.
7) Advocate for plaintiff has drawn my attention under
Order 38 Rule 5 of Code of Civil Procedure that defendant can
give security for the proof of the property. The defendant in
Notice of Motion No.2396/18 has admitted that he is in financial
crisis and that supports the case and the plaintiff that he may
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alienate the property. Hence, the plaintiff is entitled for
attachment of the property before the judgment as per Order 38
Rule 5 of Code of Civil Procedure. Hence, pass following order:
ORDER
1. Notice of Motion is allowed.
2. Defendant to furnish security of
Rs.15 Lacs till disposal of the suit within
one month failing which, the property
bearing flat No. A702 in Sarvodaya
Heights, Nahar Sarvodaya Heights Co
op.Housing Society Ltd., Jain Mandir Marg,
Gavni Pada Sarvodaya Nagar, Mulund
(West), Mumbai – 400 080 is attached to
the extend of Rs.15 Lacs.
3. No order as to costs.
(S.S. Nagur)
Date : 13/02/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 13/02/2019
Transcribed on : 01/03/2019
Signed on : 01/03/2019
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“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
01.03.2019 & 1.47 p.m. : Mrs. S.A. Shekade (LG)
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 13.02.2019
Order
Judgment/Order signed by the P.O. on : 01.03.2019
Judgment/Order uploaded on : 01.03.2019
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