Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion No.
4216 of 2019.
MHCC010115582019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.4216/2019.
IN
S. C. SUIT NO.2707/2019
Mr. Vardhaman C. Shah ...Applicant/
Plaintiff.
In the matter of :
Mr. Vardhaman C. Shah ...Plaintiff.
V/s.
1.Mrs. Akshta Anvay Naik and Anr. ...Defendants.
Appearances :
Adv. Sajid Shamim i/b Shamim & Co. for plaintiff.
Adv. Santosh Raje for defendants.
Coram : His Honour Judge
Shri. S. B. Pawar.
CR No. : 59.
Date : 21/12/2022.
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Order in Notice of Motion No.
4216 of 2019.
ORDER
Plaintiff has taken out the present Notice of Motion with a
prayer to pass order of attachment before judgment under Order 38
Rule 5 of the Code of Civil Procedure, 1908 (in short CPC), of the
properties mentioned in Schedule at Exhibits C, D, E and F.
2. It is the case of the plaintiff that plaintiff has advanced
friendly loan of Rs.46,45,000/ in cash to one Mr. Anvay Naik. Plaintiff
has also given loan of Rs.8,00,000/ by cheque to the said Anvay’s
company M/s Concorde Designs Private Limited on personal assurance
and guarantee of said Anvay. Mr. Anvay committed suicide on
05.05.2018 due to stress and financial crisis. Defendants are the only
surviving legal heirs and the legal representatives. They have inherited
various properties upon the demise of deceased Anvay. After demise of
Anvay, plaintiff approached the defendants several times and requested
them to repay the loan given by him to the deceased Anvay. However,
defendants avoided to repay the amount. The deceased Anvay was
liable to pay dues to several people to the tune of several crores of
rupees. There is likelihood of defendants selling all the properties in
order to avoid the repayment to creditors and in order to defraud the
creditors. Plaintiff has learnt that the defendants are trying to sale and
dispose of the properties. Thus, the plaintiff has filed the present Notice
of Motion with the aforesaid prayer.
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3. Defendants filed affidavit in reply and denied the
contentions of the plaintiff regarding the suit claim. They have
contended that they are neither liable nor responsible or anyway
concerned with or party to the alleged transaction of personal loan as
narrated by the plaintiff. The plaintiff is not entitled to any relief
without adjudicating the documentary evidence. The deceased Mr
Anvay Naik never informed the defendants regarding the alleged receipt
of the loan and execution of the alleged cash vouchers by him during
his lifetime. Plaintiff did not take any action against the deceased for
the recovery of the alleged outstanding amount during his lifetime.
They have denied all the contentions of the plaintiff made in the plaint
and have prayed for dismissal of the Notice of Motion with
compensatory cost.
4. In the backdrop of the above controversial issues between
the parties, following points arise for my determination to which I
record my findings for the reasons discussed below.
Sr.
No.
Points Findings
1 Whether plaintiff proves that the
defendants, with intent to obstruct or delay
the execution of any decree that may be
passed against them, are about to dispose of
the whole or any part of their property?
No
2 Whether plaintiff has made out a case to
pass an order under Order 38 Rule 5 of
No
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Order in Notice of Motion No.
4216 of 2019.
CPC?
3 What order? The Notice of
Motion is
dismissed.
:Reasons:
5. Heard Mr. Sajid Shamim, Ld. Advocate for the plaintiff and
Mr. Santosh Raje, Ld. Advocate for the defendants. Read written
arguments submitted by both the advocates. Ld. Advocate for the
plaintiff submits that defendants have not disputed their relationship
with the deceased. They are not sued in personal capacity. Defendants
are liable to pay the debt to the extent of estate they inherited from the
deceased. Defendants have admitted that they have inherited
properties. They have not given the statement that they will not create
thirdparty interest. The plaintiff has produced on record the copies of
cash vouchers and statement to support the claim and the plaintiff will
establish his claim at the time of final hearing.
6. Ld. advocate for the plaintiff further submits that
defendants have not denied the signatures of the deceased on the cash
vouchers. There is no defence of total denial. The defence is of lack of
ignorance. Therefore, plaintiff has made out prime facie case. One
property is already transferred in the name of defendants to defraud the
creditors. Thus, he urged that the properties mentioned in schedule C,
D, E and F be attached before judgement. In support of his above
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4216 of 2019.
submissions, he placed reliance upon the judgement of the Hon’ble
Apex Court in Rajendran and others Vs. Shankar Sundaram and
others, (2008) 2 SCC 724 and the judgements of the Hon’ble Bombay
High Court in BNP Paribas (Suisse) SA Vs. Atit Omprakash Agarwal
and others, MANU/MH/1820/2017 and Punjab National Bank
(International) Ltd. Vs. Naresh Malhotra and another, ordinary
original civil jurisdiction, interim application (L) No. 11153 of 2021
in commercial execution application (L) No.11151 of 2021.
7. Per contra, Ld. advocate for the defendants submitted that
defendants have only admitted relationship with the deceased. The
plaintiff has to prove the loan transaction. The cash vouchers produced
by the plaintiff are not complete. There are various discrepancies and
even copies of certain vouchers are not supplied to the defendants. The
transaction is suspicious. The defendants had made requisition for
inspection of original documents but plaintiff did not provide inspection
of the original documents. The documents are suspicious. Plaintiff did
not issue any notice or file suit against the debtor during his lifetime.
The valuation of the flat of defendants is more than Rs.2 crores.
Therefore, no case is made out by the plaintiff to pass any order against
the defendants. On the above grounds he urged that the Notice of
Motion be dismissed.
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Order in Notice of Motion No.
4216 of 2019.
As to point Nos. 1 to 3:
8. The plaintiff has sued the defendants to recover the alleged
friendly loan given by the plaintiff to the predecessor of the defendants.
Defendants have not disputed their relationship with the deceased
Anvay Naik.
9. It is the case of the plaintiff that his nephew Mr. Akshit
Balwantrai Lakhani introduced Mr. Anvay Naik to the plaintiff. They
were close friends and were also having business relationship. His
nephew requested to give friendly loan without interest to Mr Anvay by
informing that Mr Anvay was in temporary need of financial assistance.
He gave loan in cash totaling to Rs.46,45,000/ without any interest
and Mr Anvay had signed various cash vouchers while taking loan from
the plaintiff. It is further pleaded that plaintiff also gave loan of
Rs.8,00,000/ by cheque to his company M/s Concord Designs Private
Limited on the personal assurance and guarantee of Mr Anvay.
10. Along with plaint, plaintiff has annexed copies of loan
account statement, cash vouchers, ledger account and 7/12 extracts of
agricultural lands standing in the name of Mr. Anvay. As per the
documents produced by the plaintiff, the cash amount is advanced to
the deceased from 21.12.2016 to 21.04.2018 totaling to
Rs.46,45,000/. The copy of ledger account is produced to show that
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plaintiff has advanced an amount of Rs.8,00,000/ to Concord Designs
Private Limited.
11. Ld. advocate for the defendants, during arguments has
pointed out certain discrepancies in the cash vouchers relied upon by
the plaintiff. As per his submissions, the cash vouchers are not
complete. He has also raised grievance that certain documents are not
provided to defendants by the plaintiff. So far as the discrepancies in
the cash vouchers pointed out by the advocate for defendants are
concerned, on perusal of the cash vouchers it is apparent that all the
columns of all the cash vouchers are not completely filled up. However,
the plaintiff has an opportunity to prove those documents by leading
evidence. At this juncture, it is unnecessary to express any opinion on
the genuineness of those documents. As regards the grievance of Ld.
advocate for defendants that he is not served with copies of certain cash
vouchers, Ld. advocate for plaintiff has explained that due to another
suit filed against the defendants by the nephew of the plaintiff, certain
documents of this suit are inadvertently not served upon the
defendants. This explanation is acceptable.
12. In order to obtain any relief under Order 38 Rule 5 of CPC,
plaintiff must satisfy that defendants are about to dispose of whole or
any part of the property or are about to remove the whole or any part of
their property from the local limits of the jurisdiction of the Court, with
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intent to obstruct or delay the execution of any decree that may be
passed against them. In that context, plaintiff has pleaded that the
deceased was liable to pay dues to several persons to the tune of several
crores of rupees and there is likelihood of defendants selling all the
properties in order to avoid the repayment to creditors. It is further
pleaded that the plaintiff has learnt from local brokers that defendants
are trying to sale and dispose of the properties. The above apprehension
of the plaintiff appears to be without any substance. The deceased died
in the month of May 2018. The present suit is lodged in September
2019. Not a single instance since then, by the defendants, of transfer of
any of the properties or of any attempt to make any such transfer is
brought on record by the plaintiff.
13. Advocate for the plaintiff has submitted that defendants
have got recorded their name to one property to defraud creditors.
Admittedly the defendants are the legal heirs of the deceased Anvay and
as such if mutations are carried out to record their names as legal heirs
to the properties owned by the deceased, it is the requirement of the
law and on this ground, it cannot be said that defendants intend to
create thirdparty interest in the properties, much the less with an
intention to defraud the creditors. In my view, the apprehension of the
plaintiff is not well founded so as to pass any order under Order 38
Rule 5 of CPC against the defendants.
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15. In Rajendran and Others Vs. Shankar Sundaram and
others, (2008) 2 SCC 724, relied upon by the Ld. Advocate for the
plaintiff, the Hon’ble Supreme Court held that while exercising its
jurisdiction under Order 38 Rule 5 of the Code of Civil Procedure, the
Court is required to form a prima facie opinion at that stage. It need not
go into the correctness or otherwise of all the contentions raised by the
parties. The Hon’ble Supreme Court upheld the order of the Hon’ble
High Court directing the defendants therein to furnish security within
the time specified thereunder. Issue regarding liability of partnership
firm and its partners was involved in the suit and the partnership firm
had received the amount sought to be recovered in the suit. The facts of
the present case are altogether different.
16. In BNP Paribas (Suisse) SA Vs. Atit Omprakash Agarwal
and others, MANU/MH/1820/2017, the Hon’ble Bombay High Court
was dealing with a suit filed on the basis of a foreign judgement and it
was prima facie observed that the foreign judgement was conclusive. In
these facts, the Hon’ble High Court proceeded to pass an order under
Order 38 Rule 5 of CPC. In Punjab National Bank (International) Ltd.
Vs. Naresh Malhotra and another (supra), the Hon’ble Bombay High
Court was dealing with execution petition. The above authorities cannot
be made applicable to the facts of the present case so as to pass any
order in favour of the plaintiff, when plaintiff has failed to satisfy that
defendants intend to dispose of the properties in order to defeat the
decree that may be passed against them.
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4216 of 2019.
17. To conclude the foregoing discussion, at this stage it is not
necessary to go into the correctness or otherwise of all the contentions
raised by the parties. However, plaintiff could not satisfy that
defendants intend to dispose of the properties with intention to defeat
the decree that may be passed against them. In these circumstances, in
my view, order of attachment of properties before judgment, under
Order 38 Rule 5 of CPC is not warranted. Therefore, the plaintiff is not
entitled to the prayer sought in the present Notice of Motion. Thus,
point Nos.1 and 2 are answered in the negative and following order is
passed:
ORDER
1. The Notice of Motion No.4216 of 2019 is dismissed.
2. The Notice of Motion No.4216 of 2019 is disposed of.
(SHRI S. B. PAWAR )
Judge
Date: 21.12.2022 City Civil Court, Gr. Mumbai
Declared on : 21.12.2022
Direct Typed On : 21.12.2022
Checked on : 22.12.2022
Signed on : 23.12.2022
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Order in Notice of Motion No.
4216 of 2019.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
05.01.2023 at 4.00 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 21.12.2022
Order signed by P.O. on 23.12.2023
order uploaded on 03.01.2023
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