Final Order 2

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion No.
4217 of 2019.
MHCC010115612019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.4217/2019.
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.
4217 of 2019.
ORDER
Plaintiff has taken out the present Notice of Motion with a
prayer to restrain the defendants from creating third party interest in
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 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.
3. Defendants filed affidavit in reply and denied the
contentions of the plaintiff regarding the suit claim. They have
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Order in Notice of Motion No.
4217 of 2019.
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 has made out a prima facie
case?
No
2 Whether balance of convenience lies in
favour of the plaintiff?
No
3 Whether plaintiff will suffer irreparable loss
if injunction is reused?
No
4 What order? The Notice of
Motion is
dismissed.
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Order in Notice of Motion No.
4217 of 2019.
:	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
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.
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 defendants be restrained from
creating third party interest in the properties mentioned in schedule C,
D, E and F.
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Order in Notice of Motion No.
4217 of 2019.
7. 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.
On the above grounds he urged that the Notice of Motion be dismissed.
As to point Nos. 1 to 4:-
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
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Order in Notice of Motion No.
4217 of 2019.
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
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 certain cash
vouchers, Ld. advocate for plaintiff has explained that due to another
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Order in Notice of Motion No.
4217 of 2019.
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. 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 any
attempt to make any such transfer by them is brought on record by the
plaintiff.
13. Advocate for the plaintiff had 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 a requirement of the law
and on this ground, it cannot be said that defendants intend to create
third-party interest in the properties. In my view, the apprehension of
the plaintiff is not well founded so as to pass any order under Order 39
Rule 1 and 2 of CPC against the defendants.
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Order in Notice of Motion No.
4217 of 2019.
14. The plaintiff could not prima facie make out a case that
defendants intend to dispose of the properties. The apprehension of the
plaintiff is without any basis. Therefore, plaintiff has not made out
prima facie case to grant the relief of injunction as prayed in favour of
the plaintiff. Balance of convenience, thus is not in favour of the
plaintiff and there is no possibility that the plaintiff will suffer
irreparable loss, if injunction is refused. Therefore, plaintiff is not
entitled to the relief of injunction. Thus, point Nos.1 to 3 are answered
in the negative and following order is passed:
ORDER
1. The Notice of Motion No.4217 of 2019 is dismissed.
2. The Notice of Motion No.4217 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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