Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3014 OF 2019
IN
S.C. SUIT NO.8043 OF 1996
(HIGH COURT SUIT NO.3432 OF 1996)
Vivian daughter of Wilfred Fonseca and wife ]
Of Ravi Shetty ] … Plaintiff
Vs.
1. Bertha daughter of Wilfred Fonseca wife ]
Of Brandon Andredas ] ... Defendants
Appearances :
Mr. Aditya Kawle, Ld. Adv. for plaintiff.
Mr. Pankaj Shah, Ld. Adv. for defendant No.5 to 11.
Mr. Singh, Ld. Adv. for defendant No.20.
Mr. Vasant Dhawan, Ld. Adv. for defendant No.21.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 29th January, 2020
ORAL ORDER
1. Defendant No.20 took out this Notice of Motion to dismiss
the suit on the ground that there is no cause of action surviving and to
direct Court Receiver to refund the Royalty collected by the High Court,
Court Receiver to the defendant No.20 i.e. agent of the Court Receiver.
MHCC01-001234-2019
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2. Perused Notice of Motion, affidavit in support of Notice of
Motion, reply of defendant No.2 and reply of plaintiff. Heard Learned
Advocate for defendant Nos.21, 21 and Learned advocate for plaintiff.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether suit can be dismissed holding
that cause of action does not survive ?
In the negative.
2. Whether Hon'ble High Court, Court
Receiver can be directed to refund the
Royalty collected and to handover the
same to defendant No.20 i.e. agent of
the Court Receiver ?
In the negative.
3. What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 to 3.
4. In brief, it is contention of the defendant No.20 that the
suit is frivolous and misconceived. Plaintiff and defendant Nos.5 to 11
and other defendants are in collusion with each other. Plaintiff and
defendants have relinquished their rights, title and interest in the suit
property, as they have executed conveyance dated 08.08.2012. Plaintiff
is no longer the owner of the suit property, because of execution of the
said conveyance. Plaintiff has purposely suppressed the said
Conveyance from this Court and therefore liable for contempt of Court.
Plaintiff and defendant Nos.1, 12, 14, 15, 16, 17 and 19 have created
third party rights in respect of the suit premises by executing
Conveyance dated 08.08.2012.
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5. In brief, it is contention of the defendant No.21 that
defendant No.20 has not disclosed the true and correct facts of the case.
The entire suit property is not transferred. Defendant No.21 is “Kul” in
the suit property. He filed Tenancy Appeal before the M.R.T. The said
Tenancy Appeal is disposed of. He filed Writ Petition against the said
order before the Hon'ble High Court. Defendants have committed act
of Contempt of the Court by executing the said Deed of Conveyance.
Defendant No.20 is acting as Court Receiver's Agent since July, 2002
and is actively and illegally meddling with the suit property as agent of
the Court Receiver. Defendant No.20 is also in arrears of compensation.
The Agency Agreement terminated and defendant No.21 be put in
possession of the suit property.
6. In brief, it is contention of the plaintiff that the suit cannot
be dismissed holding that no cause of action survived. The suit does not
merely come to an end under Order 22 rule 10 of the Code of Civil
Procedure only on the ground that plaintiff and certain defendants have
assigned their respective shares to third parties.
7. It is further contention of the plaintiff that the plaintiff has
merely assigned her share in the suit property to the third parties.
There is no parting of physical possession of the suit property. On the
contrary defendant No.20 is being agent of the Court Receiver has
violated the Orders of the Hon'ble Bombay High Court by selling part of
the suit property to third party. The Hon'ble High Court, Court,
Receiver has also submitted his report to this Court having Report
No.141 of 2019. Therefore, there is no justification for refund of
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Royalty to the defendant No.20. All the other contentions are denied.
8. There is no collusion between the plaintiff and defendant
Nos.5 to 11 as alleged. Defendant Nos.5 to 11 had purportedly sold the
suit property to the defendant No.20 vide Conveyance dated
29.01.1996. The said Conveyance is illegal. The defendant No.5 to 11
have challenged the said Conveyance by filing Suit No.698 of 2013
before the Hon'ble High Court.
9. The defendant No.21 filed pursis vide Exh.15 on
20.12.2019 and informed to the Court that defendant No.21 filed
Contempt Petition No.37 of 2013 in the Hon'ble High Court against the
defendant No.20 and defendant No.20 disobeyed the Court Order
dated 03.10.2001 and 08.01.2002. The Hon'ble High Court Order
dated 28.08.2013 issued the notice to the defendant No.20. The
defendant No.21 also annexed Order of the Hon'ble Bombay High Court
dated 28.08.2013 passed in Contempt Petition No.37 of 2013 with
Pursis Exh.15.
10. Perused plaint. It is mentioned in the plaint that plaintiff
and defendant Nos.1 to 19 are the heirs of Elias D'Souza and become
entitled to undivided share in the estate of said Elias D'Souza including
the suit property. It is also prayed to declare that plaintiff has 1/15
undivided shares in the suit property. It is also prayed to declare that
the Conveyance dated 29.1.1996 is null, void and not binding upon the
plaintiff.
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11. I am of the opinion that cause is mentioned in the plaint to
file the suit. Cause of action does not mean certain fact but it includes
bundle of facts. Therefore, it cannot be concluded that there is no cause
of action survived in the suit. The effect of Conveyance dated
08.08.2012 can be decided at the final hearing of the suit. Therefore,
there is no substance to hold that suit is liable to be dismissed on the
ground that cause of action does not survive.
12. Nothing is mentioned in the Affidavit in support of Notice
of Motion as to why defendant No.20 is entitled for the Royalty
collected by the High Court, Court Receiver. Therefore, I do not find
substance to direct to refund the Royalty to the defendant No.20 as
prayed for. Therefore, I record my findings to point No.1 and 2 in the
negative and point No.3 the Notice of Motion is rejected as per final
order. Hence following order:
ORDER
1. Notice of Motion No.3014/19 is rejected.
2. Costs in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 29/01/2020 City Civil Court, Gr. MUMBAI
Dictated on : 29/01/2020
Transcribed on : 07/02/2020
Checked on : 17/02/2020
HHJ is on leave from 6022020
till 15022020
Signed on : 18/02/2020
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
20.02.2020 at 12.18 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 29.01.2020
Judgment/order signed by P.O. on 18.02.2020
Judgment/order uploaded on 20.02.2020
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