Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/S NO.1818/2019
MHCC010103122019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
CHAMBER SUMMONS NO. 1818 OF 2019
IN
S.C. SUIT No. 680 OF 2017
Maljibhai Khimji Boricha ...Applicant/Plaintiff.
Vs.
1. Shilpa Koshor Rathod & 15 Ors. ...Defendants
Piramal Mahalaxmi ...Proposed Defendant
(Defendant No.17)
Appearance :
Learned Advocate Ronak Parekh i/b Arete Juris for the
applicant/Plaintiff.
Learned Advocate Ms. Dhanshree Hubalikar i/b Yogendra Kanchan for
defendant Nos.1 to 8
CORAM : HHJ V. M. Pathade
(C.R.NO.62)
Date : 5th August, 2023
O R D E R
This notice of motion is taken out by the plaintiff under
Order 1 Rule 10 of the Code of Civil Procedure to implead Piramal
Mahalaxmi, a luxurious Residential Project having its office address at
Piramal Mahalaxmi, Saneguruji Road, Saat Rasta, Mahalaxmi, Mumbai-
11 through its parent company Piramal Realty, a Real Estate Company
registered under the Companies Act, 1956 having its registered address
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at 8th Floor, Ganpatrao Kadam Marg, Lower Parel (W), Mumbai-13 as
defendant No.17. It is contended that this Court allowed Notice of
Motion No.1206/2017 taken out by the plaintiff for appointment of
Court Receiver and for restraining the defendants from creating third
party rights vide order dated 20.02.2018. Pursuant to the said order, the
Court Receiver High Court Bombay, had visited the suit property on
26.03.2018 and put up a board of the Court Receiver on the suit
property, inside the compound wall. The office of Court Receiver
accordingly submitted its Site Report Exh.3 dated 26.03.2018 to this
Court. It is also stated that the said order dated 20.02.2018 is
challenged by defendant Nos.1 to 8 before the Hon’ble Bombay High
Court in A.O. St.No.7887/2018 but there is no stay to it.
2. It is further contended that defendant No.16 had taken out
Chamber Summons to join it as a party defendant to this suit and also
filed A.O. St.No.35886/2018 before the Hon’ble High Court and the
same is pending without any stay to the order dated 20.02.2018. The
applicant/plaintiff came to know that the said Board of the Court
Receiver, High Court, Bombay has been removed by the defendant
No.16 in connivance with the proposed defendant No.17. The
applicant/plaintiff wrote a letter to the Court Receiver High Court
Bombay, to verify the position. The office of the Court Receiver on
21.03.2018, 19.07.2018 and 16.02.2019 visited the suit site but the
representatives of the defendant No.16 and proposed defendant No.17
did not allow the officer of the Court Receiver to enter the suit property,
due to which the visit could not be materialised.
3. It is also stated that the applicant/plaintiff had filed notice
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of motion No.1692/2019 before this Court for initiating action against
defendant No.16 for Contempt of Courts for its deliberately removing
the board of the Court Receiver. The said notice of motion however,
came to be dismissed by this Court vide order dated 21.06.2019 on the
ground that it is only the Hon’ble High Court which can take cognizance
of the alleged contempt committed by the defendant under the
Contempt of Courts Act. This Court however clarified that the
applicant/plaintiff is at liberty to go to the Hon’ble Bombay High Court
in respect of the alleged contempt on the part of the defendants. The
applicant/plaintiff accordingly preferred the Contempt Petition against
the defendants before the Hon’ble High Court vide Contempt Petition
(Stamp) No. 19020/2019 and the same is pending.
4. It is further averred that despite a specific order, the
defendants are creating third party rights since the proposed defendant
No.17 is not a party to the main suit is reluctant to abide by the order of
this Court and the defendants are willfully disobeying the order dated
20.02.2018 passed by this Court. Hence, the chamber summons.
5. Defendant Nos. 1 to 8 vide their affidavit in reply Exh.15
strongly opposed the chamber summons on the ground that it is false,
frivolous, misconceived, vexatious and not maintainable. It is
contended that the chamber summons does not make any justification
for impleadment of the proposed defendant No.17 in this suit. It is
further stated that there is no documentary evidence to show that the
applicant/plaintiff is authorized to take out the chamber summons.
Since, the applicant/plaintiff has no power of attorney for other
plaintiffs, according to these defendants, the present chamber summons
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is nothing but a calculated strategy of the applicant/plaintiff to change
the nature of the entire suit. For all these reasons, the defendants would
seek dismissal of the chamber summons with compensatory costs.
6. Heard learned Counsels for the plaintiffs and defendant
Nos.1 to 8. They would make their submissions on the lines of the
contentions made in the chamber summons and the affidavit in reply.
7. From the perusal of the material available on record, it
would reveal that vide order dated 20.02.02018 passed by the then
Principal Judge in notice of motion No.1206/2017, the same was made
absolute in terms of prayer clause (a) and (b) until further orders and
thereby allowed the said notice of motion for appointment of Court
Receiver and to restrain the defendants pending the hearing of the
present suit from creating third party interest in any manner in respect
of the suit property i.e. survey No.1131, C.S.No.3 part situated at Lower
Parel division, G/south ward admeasuring about 750 sq.mtrs. From the
site report submitted by the Office of the Court Receiver High Court
Bombay dated 26.03.2018, it would appears Shri V. S. P… Assistant,
Representative of the Court Receiver High Court Bombay visited the suit
premises on 26.03.2018 at 2.30 p.m.; none was present for the
defendants. Mr. C.G. Mandavkar Security Guard was found present at
the suit premises. The said report would also indicate that the suit
premises was open/vacant plot of land and covered in fencing with
timber and tin sheets. The said representative of the Court Receiver had
entered the suit premises with the permission of watchman/security
guard Mr. C.G. Mandavkar, informing him the purpose of the visit and
showing the Court Receiver’s letter dated 15.03.2018. Accordingly, a
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board of Court Receiver High Court Bombay having possession of the
suit premises was affixed on the left hand side and took photographs
there. The said representative prepared the site report of the spot but
the said security guard refused to sign the same. Thus, from the perusal
of the said site report dated 26.03.2018 it is not clear as to who had
deployed the said security guard Mr. C.G. Mandavkar at the suit
premises.
8. From the perusal of the Site Report dated 21.04.2018
submitted by Mr. A.J. Yadav representative of the Court Receiver High
Court Bombay, it would reveal that on that day and time of visit 4.45
p.m. none was present for the defendants at the site. One Mr.
Prabhakar Kumar, Security Officer was found present there. At the time
of said visit Mr. Naresh Rathod one of the plaintiffs was with the said
representative and pointed out the suit property. It was noticed that the
said premises was covered by tin sheets and there was one small gate to
enter into the suit premises. On their knocking the said gate one
security guard opened that gate. The said representative showed the
said security guard office letter dated 16.04.2018 and asked him to
allow them to take inspection of the suit property so as to ascertain
actual position of the suit premises. The said security guard however
flatly refused to allow them to enter the suit premises. The name
disclosed by the said security guard was Mr. Prabhakar Kumar, Security
Officer. The said plaintiff had taken photographs of the suit site. The
said site report thus indicate that since said representative Mr. Yadav
was not allowed to enter the suit premises by the said security officer,
the appointment fixed by the said office could not have been
materialised.
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9. From another site report dated 19/20.07.2018 (Exh.6) it
would appear that Shri A.J. Yadav and Shri S.P. Dusane, the
representatives of the Court Receiver High Court Bombay alongwith
Naresh Rathod one of the plaintiff visited the suit premises at around
4.15 p.m.; they found one Mr. Rane, Security Officer there. They
noticed the suit premises covered by blue tin sheet and there is one
small gate to enter into the premises. Accordingly, the plaintiff knocked
the said small gate; one security guard noticed them from small passage
in between two tin sheets. The said security guard disclosed his name
as Mr. Rane. When they requested the said security guard to open the
door so that they can take inspection and ascertain factual position of
the suit premises, the said security guard told them that he would
contact his senior officer. But since there was no response, the said
security personnel did not allow the said representatives to enter the
suit premises. It is also stated that said plaintiff took photographs of the
suit premises from all the sides but ultimately the appointment fixed by
the office could not be materialised and they were not able to ascertain
factual position of the suit property regarding the existence of Court
Receiver board on the suit premises. In the said site report, it is noticed
that the suit premises was covered by the blue tin sheets having some
text printed which is reproduced as below:-
“PIRAMAL MAHALAXMI, SOUTH MUMBAI,
Piramal Mahalaxmi, Sane Guruji Road, Jacob Circle,
Mahalaxmi (E), Mumbai 400 011. Piramalmahalaxmi.com
+ 91 22 6216 6216”.
10. From another site report dated 16.02.2019 it is prima facie
seen that Mr. J.A. Yadav, the representative of the Court Receiver High
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Court Bombay had visited the suit premises on that day at 3.30 p.m.
alongwith Mr. Naresh Rathod, one of the plaintiffs none was present for
the defendants. By that time they found one Anant More, Security
Officer present there who told them that the said plot belongs to Omkar
Developers. Said security personnel didn’t allow the said representative
to enter the suit premises by asking him to approach Omkar Developers.
Said security personnel refused to sign the Site Report.
11. Thus, after considering the above site reports and the
affidavit in support of chamber summons which is filed by Divaliben
Naresh Rathod, who claims to be a constituted attorney for the
applicant/plaintiff Maljibhai Khimji Boricha, I do not find any cogent
and reasonable material to indicate that the presence of said piramal
Mamalaxmi is necessary in order to enable this Court effectually and
completely to adjudicate upon and settle all the question involved in the
suit so as to implead it as a party defendant (proposed defendant
No.17). I would thus do not find substance in the chamber summons to
allow it to implead said Piramal Mahalaxmi as a party defendant in this
suit. Chamber summons thus needs to be dismissed. Hence, I proceed
to pass following order:-
ORDER
1. The Chamber Summons No.1818 of 2019 stands dismissed.
2. The Chamber Summons No.1818 of 2019 is disposed of accordingly.
Date : 05.08.2023 (V. M. Pathade)
Dictated on : 05/08/2023. Judge, C.R.No.62,
transcribed on : 07/08/2023. City Civil Court,
Signed on : 08/08/2023. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
08.08.2023 at 5.30 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI V. M. PATHADE
(C.R.No.62)
Date of pronouncement of Order 05/08/2023
Order signed by P.O. on 08/08/2023
Order uploaded on 08/08/2023
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