Order 1

Order Details: Notice of Motion
Pdf Text: 1 Draft NM (Suit 2756/19)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
INTERIM ORDER IN DRAFT NOTICE OF MOTION
IN
S.C. SUIT NO. 2756/2019
Mr. Babulal Magaram Choudhary ..Plaintiffs
V/s.
Mr. Ayub Subrati Khan ..Defendant
Appearance:
Adv. Mr. Sunil Mishra for the plaintiff.
Adv. Mr. Navin Joshi for defendant.
CORAM : HHJ Shri V.V Vidwans (I/C of C.R.04)
C. R. No.03.
DATE : 24.10.2019.
ORAL ORDER
1. Perused draft Notice of Motion (N/M) supported by an
affidavit. Heard Ld. Adv. Mr. Mishra for the plaintiff and Ld. Adv.
Mr.Joshi for the defendant.
2. Ld. Counsel for the plaintiff submitted that he has
approached this Court by filing a Suit claiming the reliefs of perpetual
injunction and appointment of Court Receiver, High Court, Bombay in
respect of suit premises under Order 40 Rule 1 of CPC during pendency
of suit. By present Motion, also the plaintiff is seeking order from this
court regarding temporary injunction and appointment of court
receiver. Ld. Counsel for the defendant submitted that, he is opposing
the Motion taken out by the plaintiff and sought time to file reply to the
Motion. Ld. Counsel for the plaintiff submitted that, till defendant
submits his reply to the Motion and the court is able to hear the parties
on merit, he is pressing for passing an adinterim order on the Motion in
terms of prayers clause (a) and (b) of the draft Motion.
3. Ld. Counsel for the plaintiff referred to the relevant
paragraphs of the pleadings from the plaint and submitted that, the
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plaintiff is a proprietor of M/s. Laxmi Metal Corporation doing its
business of trading of ferrous and nonferrous scrap metals. It is
submitted that, the plaintiff had advanced an amount of Rs.50,25,000/
to the defendant during the period 20.7.2017 to 14.9.2018 for the
purchase of scrap material – ferrous and nonferrous metals. The
defendant had purchased the ferrous and nonferrous scrap material
and supplied the same to the plaintiff as per tax invoice and details
given in para 6 of the plaint. Thus, he admitted that, the defendant has
supplied the scrap material to the plaintiff worth Rs.40,15,039/. Tax
Invoices are annexed with the plaint vide Exhs.D to H. However, the
defendant has not complied with the terms of assignment and had not
supplied the balance scrap material nor refunded the money, which was
balance with him. After a lot of persuasion, the defendant had refunded
the amount of Rs.4,50,000/ by cheques between 4.8.2018 to 3.8.2019.
4. Ld. Counsel for the plaintiff further submitted that, in spite
of above, there was outstanding balance amount along with interest and
the defendant has failed to make compliance/ payment in that respect
and in discharge of the liability in respect of the above transaction, the
defendant had issued cheques to the plaintiff bearing nos. 498059 dated
2.8.2019 for Rs.3,10,296/ and 498060 dated 2.8.2019 for
Rs.3,50,000/. However, when the said cheques were presented by the
plaintiff with the bank same were dishonoured for the reasons 'funds
insufficient'. Thereafter, the defendant had refunded the amount of
Rs.50,000/ on 3.8.2019 to the plaintiff. But still an amount of
Rs.5,59,961/ remained due to be recovered from the defendant along
with interest of Rs.3,50,328/. Total amount worth Rs.9,10,289/ as per
ledger account FY17, FY18 duly confirmed and maintained by the
plaintiff.
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5. On the above background, the plaintiff had issued notice to
the defendant on 14.8.2019 through his Counsel calling upon him to
make payment of the due amount, but in vain. The defendant had
replied the said notice through his Advocate and admitted the liability
of outstanding payment. In the meanwhile, the plaintiff has learnt that
the defendant, with dishonest intention, is intending to sell out and
dispose of the suit premises during the pendency of the suit to third
person namely Anwar, whose details and whereabout are not known to
the plaintiff. Hence, it is necessary to pass interim order protecting the
interest of the plaintiff by passing an order of temporary injunction and
by making appointment of court receiver in respect of the suit property
which is described in para 5 of the plaint i.e. Hill no.2, Mominpura,
N.S.S. Road, Narayan Nagar, Near Ahmadi Masjid, Ghatkopar(W),
Mumbai86. If the interim relief is not granted to the plaintiff, the
defendant is likely to abscond and the plaintiff will suffer irreparable
loss which cannot be compensated in terms of money. Hence, there is
urgency in the matter.
6. Ld. Counsel for the defendant submitted that, the plaintiff's
claim in the suit itself is not legal and proper and the draft N/M taken
out by the plaintiff seeking relief of injunction/ appointment of court
receiver under Order 40 Rule 1 of the CPC, in respect of the suit
premises, is itself not maintainable because the plaintiff has got no right
in respect of the suit premises. In fact, the Ld. Counsel for the defendant
submitted that, the plaintiff has not filed any suit in respect of his right
in relation to the suit premises. It is clear from the pleadings in the
plaint that the plaintiff's claim is for recovery of due amount in respect
of transactions between the plaintiff and the defendant for purchase of
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scrap material. He submitted that, the factual aspects of the matter are
not very much disputed by the defendant. However, regarding
averment in para 16 of the plaint that, the defendant dishonest
intention is intending to sell out / dispose of the suit premises to third
party namely Answar are not correct. He submitted that, in fact, the
defendant has already sold the suit premises and has created third party
interest in favour of said Anwar. But, there is no question of any
dishonest intention on the part of defendant and therefore, the
allegations and made by the plaintiff regarding avoidance of liability by
the defendant that he is likely to abscond by selling out the suit
premises, are totally baseless and without any prima facie material or
documents in record. He submitted that, the defendant has a good case
on merit and defendant wants time to file his detailed reply to the N/M.
In the meanwhile, no case is made out by the plaintiff for grant of
interim relief, as prayed.
7. After going through the pleadings of the plaintiff in the
plaint and documents filed on record and after considering rival
contentions made by Ld. Counsels for both sides, it is clear that, the
plaintiff has approached this court by filing suit for perpetual injunction
against the defendant for restraining him from selling/transferring or
alienating or creating third party interest in the suit premises and for
appointment of court receiver, during pendency of suit. However, the
actual claim of the plaintiff in the suit is in respect of recovery of the
due amount in respect of transaction between the plaintiff and the
defendant for purchase of scrap material. Factual aspects of the
transaction between the plaintiff and the defendant are not disputed by
the defendant, as per oral submission made before the court. However,
I find substance in the contention of the Ld. Counsel for the defendant
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that, the suit premises has nothing to do with the claim of the plaintiff
and the plaintiff has no right or claim in respect of the suit premises.
The defendant appears to be the owner and the person having title over
the same. The apprehensions of the plaintiff that the defendant is likely
to abscond after selling the suit premises to the third party, are not
supported by documents filed on record. In fact, Ld. Counsel for the
defendant has made a statement at bar that the defendant has already
created third party interest in favour of one Mr. Anwar. So the interim
relief sought by the plaintiff to that extent has become infructuous.
Moreover, the plaintiff has no right in respect of the suit premises.
Therefore, appropriate course for the plaintiff was to file a suit for
recovery of money and in the suit he could have prayed for attachment
of property of the defendant by taking out appropriate Motion, but said
relief cannot be pressed in to service by way of interim relief in the
present suit. There appears to be some disputed question of facts which
needs to be gone into by the court during the trial of the case. Hence, I
am of the opinion that, till the defendant files his affidavit in reply to
the Motion and unless both the parties are heard on merit, it will not be
proper to pass any interim order, as prayed in the plaint. Hence, I
proceed to pass following order:
ORDER
1. Prayer for grant of interim relief made by the
plaintiff is hereby refused.
2. R & P be sent to C.R. No.04 for further proceeding
in the matter.
(V.V. Vidwans)
Date: 24.10.2019 Judge, City Civil Court,
Dictated on : 24.10.2019 Gr. Bombay (C.R. 03)
Typed on : 24.10.2019
Draft given on 24.10.2019
Signed by HHJ on : 24.10.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 4.11.19
TIME: 1.11 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03) (I/C 04)
Date of pronouncement of Judgment/ Order 24.10.19
Judgment/ order signed by P.O on 24.10.19
Judgment/ order uploaded on 4.11.19
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