Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion No.
4218 of 2019.
MHCC010115602019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.4218/2019.
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.
4218 of 2019.
ORDER
Plaintiff has taken out the present Notice of Motion with a
prayer to order and direct the defendants to disclose all their properties
inherited by them from the deceased Anvay Naik.
2. The plaintiff has contended that he has advanced friendly
loan of Rs.46,45,000/- in cash to 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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Order in Notice of Motion No.
4218 of 2019.
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. 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
third-party 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.
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Order in Notice of Motion No.
4218 of 2019.
5. Ld. advocate for the plaintiff further submits that
defendants have not denied the signature of 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. He
submits that to secure the decree that may be passed in the suit,
direction is necessary to be given to the defendants to disclose all the
properties which they have inherited from the deceased. In support of
his above submissions, he placed reliance upon the judgement 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.
6. Per contra, Ld. advocate for 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.
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4218 of 2019.
Therefore, disclosure of other assets is not logical. On the above
grounds he urged that the Notice of Motion be dismissed.
7. Perused the plaint and the annexures. 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. 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.
8. Alongwith 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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Order in Notice of Motion No.
4218 of 2019.
plaintiff has advanced an amount of Rs.8,00,000/- to Concord Designs
Private Limited.
9. 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. 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.
10. Ld. Advocate for the plaintiff submitted that even in a suit,
order can be passed directing the defendants to disclose their assets. He
relies upon the judgments of the Hon’ble Bombay High Court in support
of this submission. I have gone through both the authorities cited by the
Ld. Advocate for the plaintiff in that regard. 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 observed that the foreign judgement
was prima facie conclusive. In Punjab National Bank (International)
Ltd. Vs. Naresh Malhotra and another (supra), the Hon’ble Bombay
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Order in Notice of Motion No.
4218 of 2019.
High Court was dealing with execution petition. The above authorities
cannot be made applicable to the facts of the present case.
11. The right of the plaintiff is yet to be crystallised in the form
of the decree. Moreover, plaintiff himself has brought on record
documents with the plaint which prima facie indicate that its valuation
is much more than the amount sought to be recovered in the suit. In
these circumstances, the disclosure of other properties is unnecessary in
the suit. Therefore, the Notice of Motion is liable to be rejected. Hence
following order is passed:
ORDER
1. The Notice of Motion No.4218 of 2019 is dismissed.
2. The Notice of Motion No.4218 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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