Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO. : MHCC01-011588-2019. Notice of Motion No. 4228/2019
in L.C. Suit No. 4340/2013.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 4228 OF 2019.
IN
L.C. SUIT NO. 4340 OF 2013.
Lalit Mahesh Mulani. ......……….......……. ….. PLAINTIFF.
V/s.
Nisha Hiro Mulani +1. …......................... ….. DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 17th April, 2023.
APPEARANCES :
Mr. R.S. Tripathi, Ld. Advocate for the Plaintiff.
Mr. P. S. Tiwari, Ld. Advocate for Defendant No. 1.
Mr. G.O. Giri, Ld. Advocate for Defendant No. 2/MCGM.
*****
01. The plaintiff has taken out this Notice of Motion (for short
‘the NM’), to cancel the implementation of transfer of the license issued
by defendant No. 2 in favour of defendant No. 1, in respect of the suit
stall, duly described in the plaint, and for issuing direction to defendant
No. 2 to produce Old license No. 2280 (bearing New license No.787, of
Code 8/37), relating to transfer of license on the basis of agreement for
sale. Perused the NM, his supporting affidavit, reply of defendant No. 1,
and reply-rejoinder of the plaintiff. Also gone through written statement
(Exhibit 9). Heard both the sides.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has a prima facie
case in his favour ? ….............................. …No.
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CNR NO. : MHCC01-011588-2019. Notice of Motion No. 4228/2019
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(ii). Whether balance of convenience lies in
favour of the plaintiff ? …...................... ... No.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim reliefs, as
prayed for, are not granted ?.................... …No.
(iv). What Order ? …..............….................... …As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As these points are interconnected, to maintain the brevity,
I am taking the same for a joint discussion. By filing this suit, since the
inception, the plaintiff came with a specific case that defendant No.1 is
his aunt. His mother expired in the year 2001 and thenceforth, he was
assisting Footwear business of his uncle namely Hiro Damumal Mulani
i.e. husband of defendant No.1. He also executed an agreement for sale,
affidavit-cum-Indemnity Bond and Irrevocable Power of Attorney in his
favour. Presently, he is in possession of this suit stall. Further, he applied
for transfer of Old license No. 764/92 of the suit stall, in his favour, as
per application dtd. 09.10.2013. However, defendant No. 1 tried to take
possession of the suit stall, without following the due process of law. In
the circumstances, he had to file this suit for declaration that she has no
right in the suit stall and for the other ancillary reliefs. Defendant No. 1
resisted this suit and NM on the count that she filed suit No. 4141/2013
against this plaintiff and as per the Order of dtd. 04.07.2017, passed in
that suit, the Court directed defendant No. 2 to consider her application
for transfer of Old license. Further, she secured the Heirship Certificate
dtd. 10.06.2015, of her late husband, from the Hon’ble High Court and
ultimately, the said license had been transferred in her favour. She also
denied legality of the said agreement, affidavit and Power of Attorney of
dtd. 28.01.2011, allegedly executed by her late husband.
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04. Having considered the rival stands, here, it is worth notable
that by this suit, the plaintiff prayed for declaration that defendant No.1
had no right in the suit stall. He is claiming his rights on the basis of the
said agreement of sale and the other documents allegedly executed by
her late husband. The record shows that since the inception, she denied
the very genuineness of the said documents. However, the fact remained
that while passing of the interim Order of dtd. 30.11.2013 on this NM,
the plaintiff's possession is held by this Court and the same is protected,
till due process of law is followed. Now, by this NM, he is praying for a
cancellation of the Old license transferred by defendant No. 2 in favour
of defendant No.1. However, it is notable that no such relief, pertaining
to issuance or cancellation the said license has been claimed in this suit.
Consequently, at the outset, this NM can not be taken for consideration.
Moreover, the plaintiff is yet to establish his 'propriety' on the suit stall
by virtue of the said documents allegedly executed by his late uncle. As
such, he can’t ask for issuance or cancellation of the license. Admittedly,
defendant No. 1 is legal heir of late Hiro and as on today, the license is
existing in her favour. Further, she filed suit No. 4141/2013 and therein,
the Court directed defendant No. 2 to decide her application for transfer
of license. Accordingly, it seems that defendant No2 transferred the said
license in her favour. Needless to say that defendant No. 2 has exclusive
domain to decide on the aspects of issuance and cancellation of license.
In the circumstances, as the plaintiff is yet to establish his rights on the
suit stall, the prayer for cancellation of the license cannot be considered
in his favour. On this backdrop, I am of the opinion that at this stage, he
could not present a
prima-facie nor a balance of convenience tilts in his
side. Moreover, as he is in possession of the suit stall and carrying on his
business therefrom, even non-granting of this prayer wouldn't cause any
irreparable loss to him. In the result, I answered point Nos. 1 to 3 in the
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CNR NO. : MHCC01-011588-2019. Notice of Motion No. 4228/2019
in L.C. Suit No. 4340/2013.
negative and in answer to point No. 4, I pass the following Order :
-: O R D E R :-
(i). Notice of Motion No. 4228/2019 stands dismissed.
(ii). Notice of Motion No. 4228/2019 is, accordingly,
disposed of.
{A.G. Santani}
Mumbai. Judge
Dated : 17.04.2023. City Civil Court, Mumbai.
Dictated on : 17.04.2023.
Transcribed on : 19.04.2023.
Checked and Signed on : 20.04.2023.
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CNR NO. : MHCC01-011588-2019. Notice of Motion No. 4228/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
21.04.2023 at 01.05 p.m.
Name of the Stenographer
Mrs. S.R.Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 17.04.2023.
Judgment/Order signed by P.O. on 20.04.2023.
Judgment/Order uploaded on 21.04.2023.
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