Final Order 1

Order Details: Notice of Motion
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MHCC010092962019
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
NOTICE OF MOTION NO.3402 OF 2019
IN
COMMERCIAL SUIT NO.73 OF 2019
Jaiprakash Arun Gupta ]....Plaintiff
V/s
Mohammad Jahangir Masood Shaikh ]...Defendant
AND
The Chairman/Secretary ]...Respondents
Appearances:
Ld. Adv.Mr.Ramesh Jain for the plaintiff.
Ld. Adv.Mr.Ashif Husain for the defendant.
CORAM : HIS HONOUR ADHOCADDL.SESSIONS
JUDGE SHRI. RAJESH A. SASNE
(C.R.No.32)
DATED : 03rd September, 2021
ORDER
This notice of motion is taken out by the plaintiff,
requesting the Court to direct the defendant to furnish security in sum
of Rs.12,03,178.08ps. and to attach the property of the defendant, to
appoint the Court Receiver and to restrain the defendant from selling,
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creating any third party interest in his property situated Flat No.204,
White House, Building No.3, S.G. Bharve Marg, Buddha Colony, Kurla
(W), Mumbai400 070.
2. It is the contention of the plaintiff that the suit is filed
against the defendant for recovery of sum of Rs.12,03,178.08ps. It is
based on promissory note. In spite of repeated demands, the defendant
has failed and neglected to pay the payment due under promissory
note. The defendant has denied his liability. The defendant is likely to
sell his Flat No.204, situated at Kurla (W), Mumbai400 070. The
defendant has admitted that he is heavily indebted and has planned to
remove himself and his belongings outside the jurisdiction of this Court.
Once the defendant succeeds in selling the aforesaid flat, the plaintiff
will not be able to execute the decree. The plaintiff apprehends that the
defendant will obstruct or cause the delay in realising the decreetal
amount. The defendant has no property out of which the plaintiff can
recover the amount of decree. With these circumstances, the plaintiff
has prayed for attachment of property of defendant and injunction
against him.
3. The notice of motion is opposed by the defendant by filing
reply. It is the contention of the defendant that on the basis of false
claim, the plaintiff is seeking relief which does not fall within this Court
and ambit of Order XXXVII of the Code of Civil Procedure. The
defendant needs to sell the flat for his own purpose and the plaintiff has
no interest whatsoever therein. The defendant denied that he is
removing himself and his belongings outside the jurisdiction. He denied
that he is heavily indebted. He denied that he wants to defeat or delay
the decree if passed. As the plaintiff was knowing that the defendant
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wanted to sell his flat for his own business and family needs., therefore,
the plaintiff has filed this notice of motion. The defendant is doing his
business from Bharat Nagar Premises. He is permanent resident of
Mumbai. The plaintiff wants to obstruct the sale of the flat. No decree
can be ever passed in favour of the plaintiff. No case is made out for
issuance of attachment warrant. The Flat No.204 has no concern with
this dispute or is not the subject matter of the suit. The defendant
denied that the plaintiff has made out any case. The plaintiff's claim is
based on fraud and false claim. With these contentions, the defendant
has prayed to dismiss the notice of motion.
4. Heard the learned Advocate for the plaintiff. No argument
of the defendant. Points for determination along with my findings
thereon with reasons are as follows:
POINTS FINDINGS
1. Whether the defendant with intention to
obstruct or delay the execution of any
decree that may be passed against him is
about to dispose of the whole or any part of
his property?
'Yes'
2. Whether the plaintiff is entitled for interim
injunction.?
No
3. What order? Notice of Motion is
partly allowed.
REASONS
AS TO POINTS NO.1 & 2:
5. The plaintiff by this motion has prayed for attachment of
Flat No.204, White House, Building No.3, S.G. Bharve Marg, Buddha
Colony, Kurla (W), Mumbai400 070, contending that the defendant is
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likely to dispose of his flat in order to obstruct or delay the execution of
decree that may be passed against him. Read the copy of Agreement to
Sale dated 03.08.2020, by which the defendant has executed
Agreement to Sale the aforesaid flat. It shows that in the said flat, the
defendant has created third party interest. Moreover, said Agreement in
respect of said flat has been executed in spite of the defendant's own
undertaking of not to create third party interest therein. Hence, there is
substance in the apprehension of the plaintiff that the defendant with
intent to obstruct or delay the execution of decree that may be passed
against him, is likely to depose of his property. The defendant’s conduct
of breach of undertaking, supports the fact that the defendant’s
intention is to obstruct or delay the decree that may be passed against
him.
6. The present suit has been filed to recover the amount from
the defendant. The defendant has executed the demand promissory
note in favour of the plaintiff for Rs.10,00,000/. The defendant has
failed and neglected to pay the said amount and therefore, this suit is
filed to recover the said amount from the defendant. The copy of
promissory note is filed on record. It supports the plaintiff's claim. Prima
facie there is substance in the plaintiff’s claim. The record shows that
during the pendency of this suit, the defendant has created third party
interest in said flat No.204. Hence, there is substance in the
apprehension raised by the plaintiff that the defendant is likely to
dispose of his property with intent to obstruct or delay the execution of
decree that may be passed against him. The defendant has also
committed the breach of undertaking. The defendant is not appearing
for the dates of hearing. All these circumstances show that the
defendant with intent to obstruct or delay the execution of decree that
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may be passed against him is about to dispose of his whole properties.
Hence the defendant is required to be directed to furnish the security in
sum of Rs.25,00,000/.
7. Another relief claimed by the plaintiff is of the injunction to
restrain the defendant from disposing of the Flat No.204, White House,
Building No.3, S.G. Bharve Marg, Buddha Colony, Kurla (W), Mumbai
400 070. The defendant has already created third party interest in this
property. Hence, this prayer does not survive for the relief. Hence, the
injunction as prayed, cannot be granted to the plaintiff.
8. The circumstances on record substantiate the plaintiff's
apprehension that, the defendant is likely to dispose of his property
with intent to obstruct or delay the execution of decree that may be
passed against him. Hence, direction should be issued against the
defendant to furnish the cash security. As the property against which
the injunction is prayed, therein the defendant has already created third
party interest, hence, the question for consideration of injunction does
not survive. In the result I answer point No.1 in the affirmative and
point No.2 in the negative.
As To Point No.3 :
9. In view of aforesaid findings the notice of motion is
required to be partly allowed. Hence, in answer to point No.3, I pass the
following order :
ORDER
1. Notice of Motion No.3402 of 2019 is partly allowed as follows:
(a) The defendant is directed to furnish security in sum of
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Rs.25,00,000/ (Rupees Twenty Five Lacs Only) on or before
next date, if he fails to furnish security, his property/properties
shall be attached before judgment.
2. Notice of Motion No.3402/2019 is disposed of accordingly.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date : 03.09.2021 Mumbai.
Dictated on : 03.09.2021
Transcribed on : 04.09.2021
Signed by HHJ on : 04.09.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06.09.2021 at 01.40 pm
UPLOAD DATE AND TIME
(Mrs. P.L. PARAB)
NAME OF CLERKTYPIST
Name of the Judge HHJ SHRI R.A.Sasne
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
03.09.2021
Judgment/order signed by P.O. on 04.09.2021
Judgment/order uploaded on 06.09.2021
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