Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010100272019
Presented on : 03-10-2019
Registered on : 03-10-2019
Decided on : 25-08-2021
Duration : 1 years, 10 months, 22 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3681 OF 2019
IN
SUIT NO. 4038 OF 2010
1. Jaywanti D. Sangoi,
aged about 52 years
2. Jatin D. Sangoi,
aged about 28 years,
Both of Mumbai Indian
Inhabitants residing at B10,
Bharat Kunj Shraddhanand
Road, Vile Parle (E),
Mumbai 400 057.
3. Purvi Bipin Dharod
aged about 29 years of
Mumbai Indian Inhabitant
residing at 1st Floor, Shiv Kunj
Caves Road, Jogeshwari (E),
Mumbai 400 050 ...Plaintiffs
Versus
1. Vallabhji Nanji Sangoi
(Deceased Original Defendant)
Through his legal heirs
1A. Prabha Vallabhji Sangoi
aged 68 years, Occupation
Housewife
1B. Bhavna Vallabhji Sangoi
aged 40 years, Occupation
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Homemaker, both Indian
Inhabitant presently residing at
602, 6th Floor, Zee Swastik,
Nariman Road, Vile Parle (E),
Mumbai 400 057
1C. Nimisha Rajesh Chheda
aged 45 years occupation
Homemaker Mumbai Indian
Inhabitant presently residing
at 33, Shatrunjay Towers,
MMGS Marg, Dadar (E),
Mumbai 400 014
1D Pragna Pritesh Dedhia
aged 43 years occupation
Homemaker Mumbai Indian
Inhabitant presently residing
at 63, Tilak Shantilal CHS Ltd.,
604/A, Metro Residency, Tilak
Nagar (W), Mumbai 400 089
1E. Kavita Jatin Shah
aged 47 years occupation
Homemaker Mumbai Indian
Inhabitant presently residing
at V1/83, Kamakshetra,
Seva Samiti Nagar, Sion Koliwada ...Applicants/
Mumbai 400 037 ...Defendants
Appearance:
Advocate Ms. Smita Durve for the Plaintiff.
Advocate Mr. Rajesh Chheda for the Defendants.
CORAM: H.S. SATBHAI,
JUDGE, (C.R.NO. 59)
DATE : 25th August, 2021.
ORDER
This application/notice of motion has been preferred by the
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Suit No.4038/10
sureties the deceased defendant, seeking withdrawal of the amounts
ordered to be deposited in the Court. In notice of motion, the sureties
defendant have given the detailed information of the amount so
deposited lying in the fixed deposit of Nationalised Banks as per orders
of Court.
2. Notice of motion has been objected by the legal heirs of the
original plaintiffs for the reason that though the original suit No.
3040/2018 was disposed off on 06.02.2019, the legal heirs of the
deceased defendant have preferred a first appeal No.244/2019 before
Hon’ble Bombay High Court and it is pending. Due to pendency of that
appeal, since it is continuation of the suit, the relief of return of the
amount of surety to the sureties deceased defendant, cannot be granted.
3. Heard both. Perused the N/M, say, the order of disposing
of the suit No.4038/10 dated 06.02.2019 and the order of Hon’ble
Bombay High Court dated 04.03.2019 in first Appeal No.244/2019. On
its basis following points rise for the determination and the findings to
each of them for the reasons recorded below.
Sr.No. POINTS FINDINGS
1. Whether it is just to return the amount of
surety deposited by the sureties of the
original defendant ?
Yes.
2. What order N/M is allowed..
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Reasons:
As to Point Nos. 1 & 2 :
4. The important fact is that all the claims in suit
No.4038/2010 have not been pressed/abandoned by the plaintiffs on
the death of original defendant on 24.10.2018. The order of disposing
of the suit dated 06.02.2019 speaks that on the death of sole defendant,
the suit became infructuous. It was dismissed for want of prosecution.
The plaintiffs accepted the decision of the Court and did not prefer any
appeal or proceeding before higher court. The decision dated
06.02.2019, has thus has become absolute and attained the finality.
5. Though first appeal No.244/2019 is pending before the
Hon’ble High Court, it is not filed by the legal heirs of plaintiff. It is
filed by the legal heirs of deceased defendant for limited relief of setting
aside the decree dated 06.02.2019, directing the Court Receiver to
handover possession of the suit premises to the plaintiffs. According to
legal heirs of the deceased defendant, the said directions of the decree
is wrong. They are entitled to the possession of the suit premises. The
amount lying of the sureties in the Court is not the subject matter of the
appeal pending before the Hon’ble High Court.
6. As the suit No.4038/10 has been disposed of on
06.02.2019, there is no propriety to retain the surety amount deposited.
Since, the plaintiffs have abondoned all their claims against the
deceased defendant, they are not entitled to claim and get the amount
of surety, deposited under the orders of the Court. Only the sureties of
the deceased defendant are entitled to claim and get that amount, since
it was deposited by them in token of surety to the deceased defendant.
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The pendency of the first appeal No.244/2019 is not a hurdle or
obstruction in releasing the surety amount deposited in the Court.
Hence, answering the point No.1 in the affirmative, following order is
passed.
ORDER
1. Notice of Motion No.3681 of 2019 is allowed.
2 The amounts, more particularly described in para 13 of the
affidavit in support of notice of motion, be returned/released to the
respective applicants/sureties of the deceased defendant together with
accrued interest theron by account payee cheques on due identification
of each claimant.
3 Office to comply.
4 Accordingly notice of motion is disposed off.
Dated : 25.08.2021 (H.S. SATBHAI)
Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 25.08.2021
Transcribed on : 26.08.2021
Signed on : 28.08.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE & TIME : 30.08.2021 5.45 P.M.
NAME OF STENOGRAPHER : S.S.BATHE
Name of Judge (with Court Room No.) Shri H.S. Satbhai
(C.R.No. 59)
Date of Pronouncement of
JUDGMENT /ORDER
25.08.2021
JUDGMENT /ORDER signed by P.O. on 28.08.2021
JUDGMENT /ORDER uploaded on 30.08.2021
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