Final Order 1

Order Details: Other
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
REVIEW APPLICATION NO.211 OF 2019
IN
CONTEMPT NOTICE OF MOTION NO.631 OF 2019
IN
S.C.SUIT NO.4428 OF 2010
(HIGH COURT SUIT NO.2501 OF 2010)
Mr.Abdul Hamid Aboobaker Coatwala ... Plaintif
Versus
Mr.Asif Iqbal Memon ... Defendant no.1
And
Mrs.Bhavnaben Mafatlal Seth … Defendant no.2
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 7th FEBRUARY, 2020
Plaintif in person.
Mr.Mangesh Chauhan, ld adv. for defendant no.1.
O R D E R
1. This Review Petition is fled by plaintif to review
the impugned Order dated 03/08/2019 below Contempt Notice
of motion No.631 of 2019 under Section 114 and Order 47
Rule-1 of the C.P.C.
2. Facts give rise to the Review Petition are as under:-
It is contended that the review application is fled
to review impugned order dated 03/08/2019 passed by
another learned predecessor in Notice of Motion No.631/2019
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on 03/08/2019. According to plaintif, while passing order
dated 03/08/2019, my learned predecessor has not considered
plaintiff’s rejoinder dated 23/08/2019 which was fled in
Contempt Petition No.631/2019. Further, Court has not
considered his written arguments fled in said Contempt
Petition. According to plaintif, my learned Predecessor has
not considered the list of documents fled with his written
notes of argument in Contempt Petition No.631/2019. Plaintif
has exceeded his limits and alleged that my learned
predecessor has not considered his Contempt Notice of Motion
and it is abuse of process of law. It is alleged that my learned
Predecessor has not considered that defendant no.1 has no
legal title to the suit property therefore he cannot create
equitable mortgage by depositing his title deeds. According to
plaintif, my learned predecessor has not given any reason for
not considering said contention of plaintif. It is further
contended that my learned predecessor has not considered
the judgment cited by plaintif along with his written argument
and my learned predecessor has not considered the fact that
defendant no.1 himself has submitted that the mortgage deed
between defendant no.1 and State Bank of Patiyala, Dadar(W)
branch is not on record and according to plaintif, it is the
abuse of process of law. According to plaintif, my learned
predecessor has wrongly observed in the order dated
03/08/2019 that the letter dated 13/11/2018 is the only letter
which has been executed between defendant no.1 and Bank.
According to plaintif, said letter is the application form
No.SBP629 dated 26/08/2006 requesting for the permission for
creation of equitable mortgage fled by defendant no.1 and
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said letter is not signed by the Ofcer of State Bank of
Patiyala, Dadar(W) branch. Plaintif has again exceeded his
limit and challenged the Court saying that Court should show
him where in the Application Form NO.SBP 629 dated
26/08/2006 the State Bank of Patiyala, Dar(W) branch has
signed or executed.
3. It is contended that letter dated 30/11/2018 issued
by State Bank of India to defendant no.1, the subject of which
is request for creation of equitable mortgage over property by
way of collateral security. However, according to plaintif, said
letter is not signed or executed by Bank Ofcer. It is alleged
that my learned predecessor has wrongly observed in
workable part of order dated 03/08/2019 in para-5 that
application form No.SPB629 dated 26/08/2006 fled by
defendant no.1 requesting for the permission for creation of
equitable mortgage though neither signed nor executed by
State Bank of Patiyala, Dadar(W) branch is the confrmation
letter. According to plaintif, it is abuse of process of law. It is
contended that plaintif has fled contempt notice of motion
No.631/2019 with afdavit to make the defendant no.1 liable
for contempt as defendant no.1 has not complied with the
order dated 01/11/2018. It is alleged that defendant no.1 was
avoiding personal service as it of contempt notice of motion,
hence plaintif was directed to give the contempt notice of
motion to defendant no.1 personally in the Court. Plaintif has
contended that defendant no.1 has fled his afdavit of reply
dated 18/03/2019 and plaintif has fled its rejoinder dated
28/03/2019 and my learned predecessor has not considered
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said rejoinder. It is contended that plaintif had fled written
notes of argument in contempt notice of motion No.631/2019
and Court has heard the arguments of advocate of defendant
no.1. However, my learned predecessor has not considered
the written notes of argument fled by plaintif. My learned
predecessor has not considered list of documents annexed to
the said argument. According to plaintif, the reasons given
by him in written notes of argument para-39 are not
considered by my learned predecessor which prove that
defendant no.1 has no legal right, title and interest in the suit
property and therefore, defendant no.1 cannot create
mortgage by depositing of title deeds. With the help of those
contentions, plaintif has prayed to allow the Review Petition.
4. Defendant no.1 has fled his afdavit in reply and
resisted the contempt notice of motion contending that the
review application fled by plaintif is malicious, frivolous,
misconceived, baseless and liable to be dismissed. It is
alleged that plaintif has fled said application with ulterior
motive to harass defendant no.1 with the intention that
defendant no.1 should surrender himself for settlement or for
giving up claim of defendant no.1 over suit property. It is
alleged that review petition fled by the plaintif is abuse of
process of law. Defendant has pointed out that the issues
have been framed long back and the suit was fxed for fling of
afdavit of evidence, however plaintif fled many applications
instead of fling afdavit of evidence. According to defendant
no.1, he has not violated any order passed by the Court and
therefore, review petition is apt to be dismissed. According to
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defendant no.1, there is no apparent error in the order dated
03/08/2019 passed by my learned predecessor. It is alleged
that plaintif has not come to the Court with clean hands and
plaintif is habituated in making frivolous applications and to
mislead the Court and to pressurize the Court to pass the
orders in favour of plaintif.
5. It is contended that after order dated 01/11/2018
was passed by my learned predecessor, defendant no.1
immediately wrote letter dated 27/11/2018 to plaintif and
requested him to personally visit the bank at the address
mentioned therein. Accordingly, plaintif personally visited the
bank on the given date and took inspection of the documents
referred by defendant no.1 in his written statement and as
requested by plaintif. Contentions raised by plaintif in review
petition are denied by defendant no.1
6. I have heard plaintif in person who has argued
about all the grounds mentioned in the review application. He
has also referred the documents annexed to the review
petition. According to plaintif, as the mortgage deed in
question is not in existing, plaintif was not entitled to execute
such mortgage deed for want of title over suit property hence
defendant no.1 has committed contempt of the order dated
01/11/2018 passed by Court below Exh.43. Plaintif has also
submitted that prima facie the order passed by my learned
predecessor on 03/08/2019 is sufering from error hence
review petition is necessary to be allowed. Plaintif has placed
reliance on following case laws in support of his arguments
which are as under;
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i) Jaswant Singh V/s. State of Punjab & another,
2011 SCC Online P & H 11274 wherein it is
observed that…
“… the observations of Honf’ble the Supreme Court
in the case of State v. T. Venkatesh Murthy, (2004)7
SC 763, while afrming the view of the learned
Single Judge has held that the power of review
cannot be confned to the material which may be
produced on record after the passing of the order
under review. The review is also permissible if
irrelevant factors had entered into the reckoning
and/or relevant consideration had been ignored.
… In view of the judgment of Honf’ble the
Supreme Court in the case of Mohammed Iqbal
Bhatti (supra) it can be safely concluded that the
scope of review is not confned only to a case
where fresh material has been produced. The
power can also be exercised when irrelevant
consideration has been taken into account and
relevant consideration had been ignored while
passing the earlier order. The integrity of the
institution has to be given precedence over
everything else”
ii) Murari Rao & Ors. V/s. Balvanth Dikshit & Anr.
VOL.XLVI, The Indian Law Reporters, 955,
(1923 SCC Online Mad 131), wherein it is
observed that…
“We are not prepared to accept appellantsf’
contention that the word ‘errorf’ must necessarily be
limited to errors of fact, but consider that thee are
cases in which an error of law also come within the
meaning of the rule.
The appeal accordingly fails and is dismissed
with costs.”
iii) Jawahar Novodaya Vidyalaya V/s. D.C. Pant
(2004)13 Supreme Court Cases 39 wherein it is
observed that…
“2. The appellant had raised several points of law
none of which were considered by the High Court
before disposing of the appeal. These points
include:(1) whether the appellant is an industry or
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not: (2) if so, whether the order of reference should
have been made at the instance of the State
Government or was the Central Government the
appropriate authority; and (3) whether the labour
Court was right in holding that it was incompetent
to recall an ex parte order. Any interim order that
is passed by the High Court should be based at
least on a prima facie view on these questions.”
iv) Udhavdas Kewalram V/s. Commissioner of
Income Tax, Bombay City-I,
MANU/SC/0191/1967 (SC), wherein it is observed
that…
“The Tribunal must, in deciding an appeal, consider
with due care all the material facts and recorded its
fnding on all the contentions raised by the
assessee and the Commissioner in the light of the
evidence and the relevant law.
9. The judgment of the Tribunal sufers from a
manifest infrmity. The Tribunal has not adjudicated
upon the truth of the case of the assessee on the
light of the evidence adduced by the assessee in
support of his case….
… But in proceeding to do so, the Tribunal had to
act judicially, i.e. to consider all the evidence in
favour of and against the assessee. An order
recorded on a review of only a part of the evidence
and ignoring the remaining evidence cannot be
regarded as conclusively determining the questions
of fact raised before the Tribunal.”
v) Rasiklal Manikchand Dhariwal & Anr.
V/s.M.S.S.Food Products,
(2012)2 Supreme Court Cases 196, wherein it is
observed that…
“… However, in our view, in case the contentions
raised by the appellants were not considered by the
High Court, the proper course available to the
appellants was to bring to the notice of the High
Court this aspect by fling a review application.
Such course was never adopted. In view of this, we
are not persuaded to permit the appellants to
challenge the orders passed by the trial court on
the interlocutory applications now and argue that
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the trial court erred in not adhering to the pre-trial
procedures.”
vi) Shri Bhagwan Agarwal V/s I.T. Ofcer,2(4), Agra,
2011 SCC Online ITAT 6415,
(In the Income Tax Appellate Tribunal, Agra Bench, Agra)
wherein it is observed that…
“Where the Tribunal fails or omits to deal with an
important contention afecting the maintainability/
merits of an appeal, it must be deemed to be a
mistake apparent from the record which empowers
the Tribunal to reopen the appeal and rectify the
same if it is so satisfed.
Held,(i) that the proposition that a contention urged
but not dealt with by the Tribunal can be taken as
having been negatived, is not inconsistent with the
power of the Tribunal to reopen the appeal where it
is brought to its notice that an important contention
raised by the party was not dealt with by the
Tribunal in its order. Such a power must be held to
be inherent in the Tribunal, sine it would be a case
where the party has sufered prejudice for no fault
of his and on account of a mistake or error on the
part of the Tribunal.”
vii) Ishwar Dass Malhotra V/s. Dhanwant Singh & Ors.
MANU/DE/0276/1983 (HC Delhi), wherein it is
observed that…
“… Since Dhanwant Singh was not having any legal
title to this property, he could not create any
mortgage by means of deposit of title deeds of this
property or otherwise...”
7. Defendantf’s advocate Mr.Chavan submitted that
inspection of the documents as ordered by the Court was
given by plaintif by issuing notice to the plaintif and for such
a inspection plaintif has appeared in State Bank of India,
Dadar (W) and that time plaintif noticed that the mortgage
deed in question was not existing and therefore, plaintif
himself has mentioned in his handwriting on the letter issued
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in the bank itself that such a mortgage deed is not existing.
Defendantf’s advocate pointed out that said letter is at page-
44 of the compilation of documents fled by plaintif with this
review application. According to advocate for defendant no.1,
there is no error committed by my learned predecessor while
passing order dated 03/08/2019 hence revision petition is
necessary to be dismissed.
8. I have given serious consideration to the arguments
advanced. I have carefully perused the documents annexed by
plaintif to the review petition. I have already observed that
plaintif has exceeded his limits and even given the challenge
in the review petition to my learned predecessor to point out
how the letter is executed or signed by the bank ofcer. I
have also pointed out that plaintif has exceeded his limits and
used the words against the Court i.e. against my learned
predecessor that my learned predecessor has abused the
process of law. From the contentions raised in the review
petition itself it becomes clear that the plaintif is intending to
dictate the Court of law. Parties coming to the Court are
seeking justice from the Court but it does not mean that they
are empowered to dictate the Court of law. The mortgage
deed in question, admittedly is not in existence hence no
question arises of its inspection as per the order dated
01/11/2018 passed below Exh.43 by my another learned
predecessor. In such circumstances, I fnd that there is no
patent error in the order dated 03/08/2019 passed by my
learned predecessor. Plaintif of this suit is trying the suit in
person and it seems that he has taken it granted that
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whatsoever allegations made by him will be tolerated by the
Court of law. Such tendancy is not good. Parties seeking
justice from the Court of law should behave in their own limits,
they should prove their contentions on merits and they should
give cogent evidence to prove their own contentions. Plaintif
in this case who was expected to fle the afdavit of evidence
after framing of the issues by the Court, has taken out this
Review Petition as well as two other Review Petitions, hence it
becomes clear that rather than proceeding with the suit,
plaintif is trying to prolong the matter by fling unnecessary
applications in the matter. If at all the mortgage deed in
question is not in existence and if at all defendant no.1 has
pleaded in his written statement that any such mortgage deed
executed by him, defnitely defendant no.1 will not be able to
prove the fact that mortgage deed was executed by him in
favour of the bank and thereby defendant no.1 will be required
to sufer for his pleadings which are not supported by
evidence and thereby plaintif will be benefted. However,
plaintif is not trying to understand the real crux of the matter
and he is harping unnecessarily on immaterial and trife
issues. It can be understood that plaintif being a common
citizen may not have the knowledge of niceties of the law but
it does mean that without having the knowledge of niceties of
law, plaintif is entitled to blame the Court of law. This is the
unfortunate case in which plaintif has exceeded his own limits
and blamed my learned predecessor that my learned
predecessor has not considered the arguments advanced by
plaintif while deciding contempt petition No.631/2019 and he
has further exceeded his limits alleging that my learned
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predecessor has suppressed the facts. Plaintif in the review
petition has so many places has blamed my learned
predecessor who was presiding over the Court of law that my
learned predecessor has suppressed the facts and my learned
predecessor has abused the process of law. It seems that
plaintif himself has made the allegations as like he is
appellate authority of my learned predecessor and as like he is
appellate authority of the trial Court. Any how considering the
age of plaintif and considering the fact that he is common
citizen who may not have the knowledge of niceties of law, I
fnd that this court should ignore the allegations made by
plaintif against my learned predecessor and this Court should
simply decide the fact that whether the review petition can be
allowed or not. From the reasons discussed above, it becomes
clear that the mortgage deed in question is not existence,
hence no question arises of contempt of the order dated
01/11/2018 passed by my another learned predecessor on
Exh.43. Hence, If fnd that there is no substance in review
petition and it is necessary to be dismissed. Hence, I proceed
to pass following order.
O R D E R
Review Petition No.211/2019 stands dismissed.
Sd/-
(K.P.NANDEDKAR)
07/02/2020 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 07/02/2020
Transcribed on : 11/02/2020
Signed by HHJ on : 12/02/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
13/02/2020 5.15PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 07/02/2020
Judgment/order signed by P.O on 12/02/2020
Judgment/order uploaded on 13/02/2020
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