Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no.361519, in Suit no 2783 of 2014
MHCC010098332019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
ORDER IN NOTICE OF MOTION NO.3615 OF 2019
IN
SUIT NO.2783 OF 2014
Mr. Aziz Esmail Dhariwala ... Plaintiff
V/s
Mohmed Kaunian Mohd Ayub Shaikh …. Defendant.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE: 5th DAY OF APRIL, 2023
: Appearances:
The learned Adv. Punita Arora for the plaintiff.
The learned Adv. Jyoti Sahu for the defendant.
ORAL ORDER
The present notice of motion has been taken out by the
plaintiff for claiming reliefs inter alia:
(a) The Court receiver, High Court Bombay be directed to comply
order passed by the Competent Authority dated 26/07/2019, in
Execution application no.10/2018 and in Eviction application no.
98/2014, under section 24 of the Maharashtra Rent Control Act,
thereby Court receiver is directed to handed over the possession of suit
premises to the plaintiff;
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(b) The Court Receiver, High Court Bombay be directed to take
possession from the defendant of the suit flat and to hand over the same
to the plaintiff and for other interim reliefs;
2. Briefly stated:
It is contention of the plaintiff that, he has filed the present
suit for declaration and permanent injunction and for other reliefs. It is
submitted that vide order dated 10/08/2016, this Court has appointed
the Court receiver, High Court Bombay in respect of suit premises Viz.,
Flat no. 304, 3rd floor 'C' wing, Amatulla Cooperative Housing Society
Ltd., Mohd. Taher Ansari Marg, Arab Lane, Grant Road, Mumbai
admeasuring 225 sq.fts., carpet area.
3. It is submitted that, thereafter vide Order dated
13/03/2019, this Court has directed the defendant to deposit arrears of
royalty from 10/08/2016 to 10/04/2019 @ Rs.9000/ per month and
to execute agency agreement with the Court Receiver, High Court
Bombay on 20/04/2019. However, the defendant failed to comply with
the order dated 13/03/2019. Therefore, the Court receiver, High Court
Bombay took possession of the suit premises from the defendant on
22/04/2019 with the help of concerned police authority.
4. It is submitted that, thereafter the defendant has filed
appeal before the Hon'ble High Court while challenging order dated
13/03/2019 passed in Notice of motion no.1482/2018. The Hon'ble
High Court directed the defendant to deposit entire arrears within one
week from the date of order dated 26/06/2019. Thereafter, on
08/07/2019 the Hon'ble High Court has directed the defendant to pay
the cost to the plaintiff. In view of compliance of order by the
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defendant, the Court receiver handed over possession to of suit flat to
the defendant being his agent.
5. It is further submitted that, meanwhile the Competent
Authority (Rent Control) Law Court, Kokan Division, Mumbai allowed
the petition of the plaintiff under section 24 of the Maharashtra Rent
Control Act and thereby directed the defendant to handover possession
of suit premises to the plaintiff. The defendant has not challenged said
order. Thereafter the plaintiff has filed execution petition which also
came to be allowed on 26/07/2019. However, the defendant failed to
hand over the possession of suit flat. Hence the present notice of
motion.
6. The defendant strongly opposed the notice of motion by
filing reply on affidavit. It is contended that, the plaintiff is not entitled
for the relief as claimed. It is further contended that the notice of
motion is taken out by the plaintiff just to harass the defendant who is
very poor and having no other alternative accommodation. The
defendant is in possession of the suit premises as per order of the
Hon'ble High Court, therefore the plaintiff is not entitled for the reliefs
claimed. Hence the notice of motion may kindly be rejected.
7. The Court receiver has filed his report bearing no.
20/2021 thereby asked for suitable direction subject to payment of his
fees and cost.
8. The defendant opposed the Court receiver report by filing
reply on affidavit. It is contended that, the defendant started paying
royalty amount regularly. It is further contended that when the matter
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is filed and pending before this Court, then simultaneously filing
proceeding before another Competent Court by the plaintiff is bad in
law. Hence the notice of motion may kindly be dismissed.
9. Heard the learned advocate for the plaintiff and defendant
at length. Perused the record and Court receiver report.
10. Following points arises for my determination to which I
have recorded my findings with reasons.
Sr. No. Points Findings
1 Whether the plaintiff is entitled for
the reliefs claimed in the notice of
motion? Yes
2 What order? As per final
order
REASONS
As to point No.1:
11. It is to be noted that, the plaintiff has filed the present
suit for declaration that, defendant has not right, title, interest and
claim in respect of the suit flat / premises and further to declare
that alleged four documents dated 16/11/2007 in respect of suit
flat be declared as fabricated, false, null and void and not
enforceable in law, for permanent injunction and appointment of
the Court receiver, High Court Bombay. Here it is to be noted that,
my learned predecessorinCourt vide order dated 10/08/2016 has
appointed Court receiver, High Court Bombay as Court receiver in
respect of suit premises. The Court receiver has further directed to
fix monthly royalty as per market rate after making inquiry. It is
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further ordered that, the defendant shall liable to pay the said
amount of royalty during pendency of the suit and the said amount
shall by deposited in Court and consequently the same shall be
invested in fixed deposed in any Nationalized bank within a
reasonable period after deposits.
12. It is to be seen that, thereafter the Court receiver High
Court Bombay fixed an amount of Rs. 9000/ per month as royalty
and directed to the defendant to pay royalty for the period from
10/08/2016 to 10/04/2019. However, it reveals that the
defendant failed to pay the royalty amount. Thus, vide order dated
13/03/2019, passed in notice of motion no.1482/2018 and Court
receiver report no.314/2018, my learned predecessorinCourt
directed the defendant to deposit an amount of due royalty on or
before 20/04/2019. But, as the defendant failed to comply with
the said order, my learned predecessorinCourt has directed the
Court receiver to take back physical possession of the suit premises
from the defendant. As the defendant failed to comply the order
dated 13/03/2019, the Court receiver High Court Bombay took
possession of the suit premises on 22/04/2019 from the defendant.
I3. It is further to be noted that, thereafter the defendant
has challenged the said order and proceeding before the Hon'ble
High Court. The Hon'ble High Court granted time to the defendant
to deposit entire arrears within one week from order dated
26/06/2019. The Hon'ble High Court further directed the
defendant to pay cost to the plaintiff and comply the Court receiver
requisition regarding execution of agency agreement etc., as per
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order dated 08/07/2019. Accordingly, the defendant has
complied with the order. Thereafter, the defendant has deposited
the arrears of royalty with the office of the Court receiver High
Court Bombay in compliance of order dated 26/06/2019 and
08/07/2019. Accordingly, the Court receiver High Court Bombay
put the defendant in possession of suit premises on 01/08/2019, as
an agent of the Court receiver. Now, the suit flat is in symbolic
possession of the registry of the Court receiver High Court Bombay
and the defendant being an agent of Court receiver is in possession
of the same. The Court receiver report shows that the defendant
has deposited royalty till October 2021 only.
14. Upon perusal of the record, it further reveals that
meanwhile the plaintiff has filed an application under section 24 of
the Maharashtra Rent Control Act before the Court of Competent
Authority (Rent Control) Kokan Division at Mumbai bearing
application no. 98/2014. The Competent Authority pleased to
allowed the application vide order dated 02/02/2018 thereby
directed the defendant to handover the peaceful and physical
possession of the suit flat premises to the plaintiff. The defendant
has also directed to pay to the plaintiff arrears of monthly license
fees. Thereafter the plaintiff has filed execution application no.
10/2018, in eviction application no. 98/2014, before the
Competent Authority Kokan Division at Mumbai. The Competent
Authority vide order dated 26/07/2019, appointed Mr. V.P.
Lokhande as Execution officer to execute the warrant of possession
of suit premises.
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15. It is main contention of the defendant that, as the Lis
is subjudice before this Court hence notice of motion has taken out
by the plaintiff is not maintainable. It is further contended that as
the defendant is put in possession in view of order of the Hon'ble
High Court therefore the possession cannot be delivered to the
plaintiff in view of order of the Competent Authority. Here, I want
to state that the plaintiff has filed suit for declaration and
permanent injunction simplicitor. The Hon'ble High Court was
pleased to allow the defendant to continue in possession upon the
payment of royalty till decision of the suit. Here, it is important to
note that the Competent Authority (Rent Control) Kokan Division
at Mumbai has allowed the application of the plaintiff under
section 24 of the Maharashtra Rent Control Act and thereby
directed the defendant to handover vacant and peaceful possession
of the suit premises to the plaintiff. Here it is pertinent to note
that the defendant has not challenged the said order. Even nothing
on record to show that the order passed by the Competent
Authority has been stayed or set aside by the higher authority. It is
further pertinent to note that, thereafter, the plaintiff has filed the
execution proceeding wherein the Competent authority allowed
the execution proceeding and appointed one Mr. V.P. Lokhande as
Execution officer with authority to execute the warrant of
possession of suit premises. In such circumstances, when there is
specific order regarding delivery of possession by Competent
Authority and which was not challenged by the defendant, then
the defendant is duty bound to hand over the possession of the suit
premises to the plaintiff. Thus, in my humble view, the plaintiff has
made out case for grant of reliefs as prayed in notice of motion.
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Hence my answer to point no.1 is in affirmative.
As to point no.2:
16. In view of my above discussion, I pass the following
order:
ORDER
Notice of Motion No. 3615/2019 stands allowed and
made absolute in terms of prayer clause (a) and (b).
The Court receiver shall hand over the physical
possession of suit flat No.304 to the plaintiff or Shri. V.P. Lokhande,
who is appointed by the competent authority as Execution Officer.
The Court receiver is hereby discharged without passing
an account and plaintiff is hereby directed to make the Court
receiver costs, charges and expenses as per rule.
The Court receiver is directed to pay the balance
amount or appropriate deposit to the plaintiff.
The plaintiff is directed to pay the amount of Rs.5,000/
towards the costs of Court receiver report No. 20/2021.
Notice of Motion No.3615/2019 stands disposed of
accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court, Gr. Mumbai
Date:05.04.2023 (C.R. No.1)
Dictated on : 05.04.2023
Transcribed on : 06.04.2023
Checked & Signed on : 06.04.2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 06.04.2023 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 05.04.2023
JUDGMENT/ORDER signed by P.O. on 06.04.2023
JUDGEMENT/ORDER uploaded on 06.04.2023
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