Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010115312019 Presented on 13/11/2019
Registered on 13/11/2019
Decided on 17/06/2026
Duration 06Y: 07M: 04D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
NOTICE OF MOTION NO. 4210 OF 2019
IN
SUMMARY SUIT NO. 461 OF 2016
Dilip Choudhary HUF Karta ]...Plaintiff
V/s. ]
1. Rishab Steel (House) & Ors. ]...Defendants
Appearance :
Ld. Adv Mr. Dipesh Siroya for the plaintiff.
Ld. Adv. Hetal Laghave for defendants.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 17/06/2026
O R D E R
01] This notice of motion is taken out by the plaintiff to direct
defendants to furnish security to the satisfaction of Rs.2,30,533/- i.e.
decreetal amount or on failure issue attachment warrant before
judgment under Order XXXVIII, Rule 5(3) of Civil Procedure Code and
also attachment of warrant before judgment under XXI, Rule 43 of
C.P.C. by attaching all furniture, fittings, right, title and interest in
business premises at 101/102, 1st Floor, 301 Rishab House, M. A. Road
(Duncan Road), Mumbai 400004 and also alongwith building known as
Rishab House located at Duncan Road (Lower), now known as Mulana
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Azad Road, bearing C. S. No.4083 of Bhuleshwar Division (in short said
property) to the extent of the plaintiff's claim.
02] This notice of motion has taken out by the plaintiff on
11/11/2019. The defendants have failed to file reply to the notice of
motion.
03] It is submitted on behalf of the plaintiff that he has filed
suit for recovery of an amount of Rs.7,00,000/- along with interest from
the defendants. Further, the plaintiff came to know from one Mr.
Jawanmal Dalal through whom friendly loan was availed to the
defendants that the defendants are intending to dispose of his said
property. Further, the defendants are owner of the said property and to
support said contention, he has filed xerox copy of conveyance deed
(Exh.A) executed between Mrs. Chandrika Bhansali and defendant
No.3. The plaintiff came to know that huge dues are outstanding and
payable by the defendants to the other creditors. Further, it is also
contended that purchasers are visiting the said property and the
defendants have expressed their intention to sale said property. The
defendants are also having residential premises being Room No.16, 3rd
Floor, Shirin Manzil, Balaram Street, 12-A, Dinabhai Petit Street, Grant
Road, Mumbai 400007. The defendants are trying to dispose of this
premises and run away to defeat the claim of their creditors including
the plaintiff. Therefore, it is necessary to attach said properties of the
defendants before the decree in order to protect the interest of the
plaintiff. It is further submitted property is in the name of Mrs.
Chandrika Bhansali and it is benami property and it can be attached. It
is also submitted that it is the contention of the defendants that Mrs.
Chandrika and Mr. Mayank are not partners of defendant No.1 however,
no public notice is given of dissolution of partnership firm. It is further
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submitted that agent is not necessary party. Further, the defendants
have not disputed that loan was borrowed. Even, 'status quo' order
passed by the Court is not challenged by the defendants. Further, if the
properties are not attached, the plaintiff will suffer irreparable loss. The
plaintiff has made out sufficient grounds to attach the property of the
defendants. Therefore, it is not necessary to attach the property. Hence,
notice of motion may be allowed.
04] On the other hand, it is submitted on behalf of the
defendants that the notice of motion filed by the plaintiff is not tenable.
It is submitted that partnership firm came into existence on 22/02/2013
between defendant No.2 and his father namely, Mr. Tagraj D. Bhansali
(Exh.A is partnership deed). However, father of defendant No.2 died in
the year 2014 and therefore, partnership dissolved and it converted into
proprietorship concern in the year 2015, as per order of Sales Tax
Officer dated 10/03/2015 (Exh.B). Further, property under attachment
is already sold to Mr. Ramesh J. Jain on 03/12/2020 (Exh.C sale deed).
Further, said property was of Mrs. Chandrika Bhansali and Mr. Mayank
Bhansali (Exh.D conveyance deed) who were never partners in
partnership firm. The properties under attachment are not in the name
of proprietorship concern or in the name of defendant No.2. Therefore,
said properties cannot be attached. It is further submitted that plaintiff
has not made out case to grant relief as claimed by the plaintiff in this
notice of motion. Hence, notice of motion may be dismissed with costs.
05] Perused notice of motion and record of the proceedings.
Heard both the parties. On perusing record, it appears that plaintiff has
filed suit against the defendants for recovery of loan. As per the
plaintiff, he had advanced friendly loan of Rs.7,00,000/- to defendants
and they had agreed to repay it with interest at the rate of 12% p.a.
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Further, the defendants paid interest upto march 2015 and thereafter,
failed to pay the interest as well as principal amount. Therefore,
plaintiff had issued demand notice to call upon defendants to repay
outstanding amount, as he failed plaintiff has filed present proceeding
to recover said amount.
06] It is the contention of the plaintiff that he came to know
from one Mr. Jawanmal Dalal through whom friendly loan was availed
to the defendants that the defendants are intending to dispose of his
said property. Admittedly, Mr. Jawanmal Dalal is not necessary party to
the present suit. However, it is pertinent to note that except bare
contention the plaintiff has not filed any documentary evidence on
record. Further, even, affidavit of Mr. Jawanmal Dalal is also not filed
on record to support his contention. The plaintiff has contended that
the defendants are owner of the said property and to support said
contention, he has filed xerox copy of conveyance deed (Exh.A)
executed between Mrs. Chandrika Bhansali and defendant No.3. The
defendants have filed (Exh.A is partnership deed) on record. On
perusing same, it appears that defendant No.3 is not partner of the
defendant No.1 firm. Further, it appears that Mrs. Chandrika Bhansali
was a partner of defendant No.1. However, it appears that she is retired
from defendant No.1 firm on 31/01/2013. As submitted by the plaintiff
admittedly, there is nothing on record to show that public notice was
given regarding dissolution of partnership firm. However, as discussed
above, now defendant No.1 is converted into proprietorship.
07] Further, as per defendants father of defendant No.2 died in
the year 2014 and therefore, partnership dissolved and it converted into
proprietorship concern in the year 2015, as per order of Sales Tax
Officer dated 10/03/2015 (Exh.B). On perusing said document it
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supports the contention of the defendant that now defendant No.1 has
converted into proprietorship concern. Further, it appears from
conveyance deed (Exh.A) that Mrs. Chandrika Bhansali has conveyed
said property to defendant No.3 on 27/05/2015. Further, Mr. Mayank
Bhansali sold said property to Mr. Ramesh J. Jain on 03/12/2020
(Exh.C sale deed). Thus, it appears that said property is not available
for attachment as now defendants are not owner of the said property.
Further, it is the contention of the plaintiff that the defendants are also
having residential premises being Room No.16, 3rd Floor, Shirin Manzil,
Balaram Street, 12-A, Dinabhai Petit Street, Grant Road, Mumbai
400007. It is pertinent to note that the plaintiff has not brought any
documentary evidence to support said contention.
08] As per Order 38, Rule 5(3) of C.P.C., property of defendants
can be attached before the judgment. In order to attach the property,
plaintiff has to satisfy that the defendants with intend to obstruct or
delay the execution of decree that may be passed against them, is about
to dispose of the whole or any part of his property or is about to remove
the whole or part of the property from the local limits of the jurisdiction
of the Court. It is pertinent to note that plaintiff has contended that he
came to know that defendants are intending to sale their said
properties. Thus, except bare contention that defendants are going to
dispose of the properties there is no other documentary evidence on
record to support said contentions. Further, it is well-settled that merely
having a just or valid claim or a prima facie case, will not entitle the
plaintiff to an order of attachment before the Judgment, unless he also
establishes that the defendants are attempting to remove or dispose of
their assets with the intention of defeating the decree that may be
passed. There is nothing on record to show that the defendants are
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removing or disposing of their properties that to with intention to
defeat the decree.
09] Thus, from the facts and circumstances of the case, I am of
the view that plaintiff has not brought sufficient material on record to
show that defendants are intending to dispose of property. Thus, on
bare contention of plaintiff without any sufficient material on record, he
is not entitled for reliefs claimed. Therefore, I am of the view that
plaintiff has failed to satisfy that the defendants are intending to
dispose of their said property with intention to obstruct or delay the
proceeding. Thus, no case made out either to give direction to deposit
security or to issue attachment before judgment against the defendants.
Hence, I proceed to pass the following order.
ORDER
1. Notice of Motion No. 4210/2019 is hereby dismissed.
2. Notice of Motion No. 4210/2019 is disposed of accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court, Mazgaon, Mumbai.
C.R.No.81
Date- 17/06/2026
Dictated on : 17/06/2026
Corrected & signed on : 17/06/2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
17/06/2026 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri. Sangram S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
17/06/2026
JUDGMENT/ORDER signed by P. O. on 17/06/2026
JUDGMENT/ORDER uploaded on 17/06/2026
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