Final Order 1

Order Details: Notice of Motion
Pdf Text: Order in Notice of Motion No.
4220 of 2019.
MHCC010115632019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.4220/2019.
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.
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Order in Notice of Motion No.
4220 of 2019.
CR No. : 59.
Date : 21/12/2022.
ORDER
Plaintiff has taken out the present Notice of Motion with a
prayer to appoint Court Receiver under Order XL Rule 1 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 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
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Order in Notice of Motion No.
4220 of 2019.
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
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. 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 case for
appointment of Court Receiver for the
properties as prayed?
..No..
2 Whether plaintiff is entitled to the relief
prayed in the Notice of Motion?
..No..
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Order in Notice of Motion No.
4220 of 2019.
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
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 Court Receiver be appointed for the
properties mentioned in schedule C, D, E and F.
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Order in Notice of Motion No.
4220 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 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. 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.
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Order in Notice of Motion No.
4220 of 2019.
9. Alongwith the 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.
10. 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.
11. Under Section 94 of the CPC, Court Receiver may be
appointed in order to prevent the ends of justice from being defeated. In
the present case, the suit is filed against the legal heirs, to recover the
debt of their deceased predecessor. There is no issue involved in the suit
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Order in Notice of Motion No.
4220 of 2019.
about ownership or possessory title of the properties. Furthermore,
there is no case that the properties are in danger of waste at the hands
of defendants so as to jeopardize the interest of the plaintiff in the suit.
In view of the nature of the suit and the final relief claimed therein, at
this stage, no extraordinary situation exists to exercise discretion under
Section 94 read with Order XL of CPC in respect of the properties
mentioned in the schedule. Therefore, in my view, order directing
appointment of Court Receiver is not warranted in the facts of the
present case and the Notice of Motion, thus, deserves to be dismissed.
In the result, point Nos.1 and 2 are answered in the negative and
following order is passed:
ORDER
1. The Notice of Motion No.4220 of 2019 is dismissed.
2. The Notice of Motion No.4220 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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