Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 3204-2019 in Suit (L) no. 8878-2019
Suit No. 2389 of 2019
1 Date : 23.09.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3204 OF 2019
IN
SUIT (L) NO. 8878 OF 2019
SUIT NO. 2389 OF 2019
(CNR NO.MHCC0100 0087262019 )
Deviben Velji Patel & Ors. .. Plaintiffs
Versus
Ravindra Lalji Kapadia & Ors. .. Defendants
Appearances :
Adv.Rekha Shinde for plaintiff present.
Adv.R.D.Vora for defendant no.1 to 3 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date :23.09.2019
ORDER
1. The plaintiffs have filed instant Notice of Motion praying for
following reliefs.
(a) That ending the hearing and final disposal of this suit,
the Plaintiffs be directed/ permitted to deposit Rs.
1,50,435.50/ being the mortgage debt along with the
interest due thereon as per the Mortgage Deed dated
13th September, 1956 as per Particulars of Claim to
the Plaint.
(b) That pending the hearing final disposal of this suit,
this Hon’ble Court be pleased to diredt the Receiver
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to take possession of Room No. 21 and 22 in the
mortgaged property from the Cuort Bailiff of the
Court of Small Causes in Execution Application No.
1586 of 2015 and to hand over possession to the
Plaintiff.
(c) That pending the hearing and final disposal of this
suit, this Hon’ble Court be pleased to pass an order of
injunction restraining the defendant no. 1 to 3 from
in any manner taking possession of the Room No. 21
and 22 situated in the mortgaged property from the
Court Bailiff of the Court of Small Causes and also
from removing the belongings of the Plaintiffs from
the said Room No. 21 and 22 in any manner.
(d) That pending the hearing and final disposal of this
suit, the defendant no. 1 to 3 be restrained by an
order of injunction from in any manner managing the
property or recovering any rent, income or profit from
the said property and also from recovering possession
of the tenements from the tenants in any manner as
also from the Plaintiffs under the Eviction Decrees in
the Suits stated in Exhibit “F” to the Plaint or in any
other manner.
(e) That such further and other reliefs be granted as the
nature and circumstances of the case may require.
(f) That adinterim reliefs in terms of prayers (a) to (c)
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above be granted.
(g) That costs of this suit be provided for.
2. It is submitted by the plaintiffs that the defendant no. 1 to 3
on 29.07.2019 visited to the Room of plaintiff bearing No. 21 and
22 alongwith the Court Bailiff and Police and for removing the
plaintiff from the Room No. 21 and 22. However, the valuables
and belongings of the plaintiffs are still lying in the Room No. 21
and 22. The possession of the suit premises is with the Bailiff of
Small Causes Court.
3. It is contended by the plaintiffs that they are mortgagors of
the immovable property being leasehold rights in respect of Plot
No. 7 bearing S. No. 31, Hissa No. 2 (part), Survey No. 164, Hissa
No. 10 (part) and Survey No. 31, Hissa No. 1 (part) of Village
Ghatkopar together with the building standing thereon known as
Avchar Building situated near Shreyas Signal, LBS Marg,
Ghatkopar (West), Mumbai – 400 086. (hereinafter shall be
referred to as “mortgage property”.
4. It is contended by the plaintiff that they are ready to deposit
entire mortgage debt with interest without prejudice to their rights
to seek account, in view of the decree dated 29.08.2019 passed in
suit No. 1172 of 2000.
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5. It is contended by the plaintiff that by Indenture dated
21.01.1952 executed between the Avchar Liladhar Patel as the
Mortgagor and Smt. Gunvanti Dharamshi and Lalji Dharamshi as
the Mortgagees, the said Avchar obtained a loan amount of Rs.
25,000/ on interest from said Gunvanti and Lalji against the
mortgage of mortgage property. The said Avchar could not make
payment of loan of Rs. 25,000/ and interest thereon from
November, 1953. Therefore, the parties entered into another
Indenture dated 13.09.1956 whereby the time to repay the
amount of Rs. 25,000/ was extended till 31.12.1957 and the
terms of interest were also varied. In addition, the said Avchar
(Mortgagor) handed over the possession of mortgage property to
said Gunvanti and Lalji (Mortgagees) for compensating themselves
out of the rent, income and profit of the said property towards
satisfaction of interest of loan amount. Thus, it is contended by
the plaintiff that by the above Indenture dated 13.09.1956, the
English Mortgage was converted into Usufructuary Mortgage.
6. It is contended by the plaintiff that the Mortgagees recovered
substantial amount out of the rent received from the Mortgage
Property and the principal of debt together with the interest have
been satisfied, inspite of that the Mortgagee were not handing over
the possession of the mortgage property. Therefore, the plaintiff
constrained to file Civil Suit No. 9845 of 1988 for redemption of
mortgage. However, the aforesaid suit came to be dismissed in
default by order dated 28.10.1991 for non service of Writ of
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Summons upon defendants. The plaintiff preferred first Appeal
No. 701 of 1992 which was also came to be dismissed in default.
7. It is contended by the plaintiffs that they have filed Suit No.
1172 of 2000 against the Mortgagees for redemption of Mortgage
Property. The aforesaid suit came to be decreed on 29.08.2009
only to the extent of prayer clause ‘d’ by which the defendant no. 1
to 3 were ordered and directed to render true and faithful amount
to the plaintiff. The relief of redemption was rejected, as the
plaintiff could not prove the payment of entire Mortgage amount.
The plaintiffs being aggrieved by the aforesaid Judgment and
decree preferred First Appeal No. 1076 of 2010 before Hon’ble
High Court which is pending for adjudication.
8. It is contended by the plaintiff that as per the Judgment and
Decree passed in Civil Suit No. 1172 of 2000, the defendant no. 1
to 3 failed to give accounts therefore, they have filed Execution
Application No. 576 of 2016. However, the defendants are
avoided to receive the notice of such execution.
9. It is contended by the plaintiffs that they have informed to
the tenants that they are landlords of the Mortgage Property.
Therefore, some of the tenants surrendered their tenancy to the
plaintiffs and defendant no. 4 to 9. Thus, the plaintiffs and
defendant no. 4 to 9 were in possession of Room No. 9, 10 and 21
to 25. It is further submitted by the plaintiffs that defendant no. 1
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to 3 had filed eviction suit before the Small Causes Court and
evicted the plaintiffs and defendant no. 4 to 9 from Room No. 23
and 24. The defendant no. 1 to 3 filed Suit No. 610 of 2008 and
Suit No. 155/264 of 1999 in respect of Room No. 9,10, 21 and 22
against the tenant, plaintiffs and defendant no. 1 to 4 before Small
Causes Court.
10. It is contended by the plaintiffs that defendant no. 1 to 3
failed and neglected to rendered the accounts and taking
advantage of their own wrong and they are continuing in suit of
possession of the mortgage property and dealing with the same.
The defendant no. 1 to 3 obtained the eviction decree in RAE & R
Suit No. 155/264 of 1999 in respect of Room No. 21 and 22 which
is the residence of plaintiffs.
11. It is submitted by the plaintiffs that they are the mortgagors
of the mortgage property. They are ready to redeem the Mortgage
Debt. They are ready to deposit the amount of Rs. 1,50,435.50/
towards the full satisfaction of the Mortgage debt with this Court.
Hence, it is necessary for passing of Preliminary Decree of
Mortgage and during pendency of the same to pass an order of
injunction restraining the defendant no. 1 to 3 from any manner
taking possession of the Room No. 21 and 22 from the Court
Bailiff of Small Causes Court and from removing the belongings of
the plaintiffs.
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12. The Notice of Motion is opposed by the defendant no. 1 to 3
by filing say and Written Statement. It is contended by the
Defendant no. 1 to 3 that in view of the order passed in Suit No.
1172 of 2000 whereby the Decree of Redemption was specifically
refused to the plaintiff, the present Suit is not maintainable on the
ground of principal of resjudicata. It is further contended by the
defendant no. 1 to 3 that the Suit filed by the plaintiff is hopelessly
time barred. Hence, upon dismissal of the suit, defendant no. 1 to
3 became the owner of the Mortgage Property and they get
absolute right, title, interest in the Mortgage property.
13. It is further contended by the defendant no. 1 to 3 that
during pendency of First Appeal No. 1076 of 2010, the plaintiffs
herein filed Civil Application No. 4580 of 2009 with Application
No. 3951 of 2015 for injunction in respect of Room No. 9, 10, 21,
22 and 25. The Hon’ble High Court on 11.12.2015 granted Status
quo. However, it was not extended since 26.09.2018. The
aforesaid fact is well within knowledge of the plaintiff. Hence,
during pendency of First Appeal, subsequent Suit filed for same
relief is not maintainable.
14. It is further submitted by the defendant no. 1 to 3 that they
have filed RAE Suit No. 155/264 of 1999 before the Court of Small
Causes at Bombay in respect of Room No. 21 and 22, wherein the
present plaintiffs were intervened as defendant. The aforesaid suit
was dismissed on 03.04.2010 against which Appeal was preferred
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and same was allowed on 28.11.2014. In view of the orders in
Appeal, the defendant no. 1 to 3 filed Execution Application No.
223 of 2015 to execute the Decree in respect of Room No. 21 and
22. The aforesaid Execution Application was contested by the
plaintiff herein and the executing Court allowed the execution in
respect of Room No. 21 and 22. The plaintiffs herein preferred
CRA bearing no. 24533 of 2015 before the Hon’ble High Court
which was came to be dismissed vide order dated 23.07.2019.
Thereafter, the defendants executed the decree and taken the
possession of Room No. 21 and 22 and presently possession of the
above Rooms are with bailiff of Small Causes Court. Thus, it is
submitted by the defendant no. 1 to 3 that the plaintiffs in order to
avoid and frustrate the decree, filed instant suit.
15. The plaintiffs by filing their rejoinder denied the contentions
of the defendants. It is contended by the plaintiff that the principal
of resjudicata is not applicable to the redemption of suit. The
cause of action for filing the suit no. 1172 of 2000 is different from
cause of action of filing of the present suit. The Mortgagor at
present is ready to pay mortgage dues alongwith interest. Hence,
the present suit is maintainable. The plaintiff in order to
substantiate their contention relied on the judgment of Hon’ble
Bombay High Court (Aurangabad Bench) reported in
MANU/MH/0868/2008 in case of Ashruba Haribhau Dombe
V/s. Ramkishan Yashwantrao Dombe. Thus, the plaintiff prayed
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for allowing the present Notice of Motion.
16. Heard both the sides at length. Perused Notice of Motion,
reply, rejoinder, Written Statement and plaint alongwith the
documents annexed. It is not in dispute that the plaintiff are the
mortgagor of the suit property and defendant no. 1 to 3 are the
Mortgagees. The Mortgagor create the mortgage in the year 1952
by executing mortgage deed dated 21.01.1952 which was renewed
vide another Indenture dated 13.09.1956, whereby the possession
of the suit property was handed over to the Mortgagor.
17. It is also not in dispute that the plaintiffs filed suit No. 9847
of 1988 which was dismissed in default and the Appeal against the
same was also dismissed in default. In view of the above, the
plaintiff relied on the judgment of Hon’ble Bombay High Court
(Aurangabad Bench) reported in MANU/MH/0868/2008 in
case of Ashruba Haribhau Dombe V/s. Ramkishan Yashwantrao
Dombe, there is no doubt that the plaintiff can filed subsequent
suit. The plaintiff filed another suit no. 1172 of 2000 which was
decided on 29.08.2009. By this suit, the decree of redemption was
specifically refused and prayer for rendition of accounts was
allowed. It is not in dispute that the plaintiff filed First Appeal
bearing No. 1076 of 2010 which is still pending.
18. In my view, the Appeal No. 1076 of 2010 is the continuation
of suit no. 1172 of 2000 and the judgment and decree passed
therein has not attend finality. Hence, the present suit shall not be
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barred by principal of resjudicata.
19. The plaintiff filed suit no. 1172 of 2000 for redemption of
mortgage debt. The plaintiff filed present suit with similar relief.
As per Section 12 of Code of Civil Procedure, the plaintiff is
precluded from instituting further suit during pendency of the
earlier suit. The Section 12 is reproduced as under : “where the
plaintiff is precluded by the rules from instituting the further
suit in respect of any particular cause of action, he shall not be
entitled to institute a suit in respect of such cause of action in
any Court to which this code applies.” Thus, in my view, as the
Appeal No. 1076 of 2010 is pending which is nothing but
continuation of earlier suit no. 1172 of 2000, primafacie, I am of
the view that the present suit of the plaintiff is barred under
Section 12 of Code of Civil Procedure. Hence, the plaintiff is not
entitled for injunction.
20. Moreover, it is the case of plaintiff themselves that they have
handed over the possession of mortgage property to the
mortgagees, then the question arising how the plaintiffs claim for
possession of Room No. 21 and 22. When infact, the earlier suit
no. 1172 of 2000 was dismissed with respect to redemption of
mortgage. Hence, the contention of the plaintiff that they are in
possession of Room No. 21 and 22 it appears that they are
unauthorizedly in possession of the Room No. 21 and 22. Hence, I
am not inclined to allow the present Notice of Motion. Thus, I
proceed to pass the following order :
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ORDER
1. Notice of Motion No. 3204 of 2019 is hereby dismissed.
2. Plaintiff to bear cost of present Notice of Motion.
3. Notice of Motion No. 3204 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 23.09.2019 Gr. Bombay
Dictated on : 23.09.2019
Typed on : 23.09.2019
Operative Order uploaded on : 23.09.2019
Draft Submitted on : 23.09.2019
Checked on : 24.09.2019
Signed on : 24.09.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
24/09/2019 at 3.30 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
23/09/2019
JUDGMENT/ORDER signed by P.O.
on
24/09/2019
JUDGMENT/ORDER uploaded on 24/09/2019
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