Final Order 1

Order Details: Other
Pdf Text: MA NO. 133 OF 2019 ..1.. Suit No.9407 OF 1999
MHCC010119562019
CNR No.MHCC01-011956-2019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
MISC. APPLICATION NO. 133 OF 2019
IN
S.C. SUIT NO. 9407 OF 1999 (Disposed off)
(HIGH COURT SUIT NO.5387 OF 1999)
Smt. Veena Prafulchandra Dalal.
Age: 59 years, Occ: Housewife,
Add: Flat No.302, Vile Parle,
Aradhana Co-op. Housing Society Ltd.,
Dr. Annie Besant Road, 40/41 , S.V.P. Road,
Vile Parle (West), Mumbai -400056 AND
residing at Flat No.51, A/6-14, Eligible Co-op.
Hsg. Society Ltd., Jeevan Bima Nagar,
Borivali (West), Bombay 400 103. .. Plaintiff/Decree holder.
Versus
1. Smt. Pallavi @ Pushpa (since deceased)
1A. Jitendra M. Pannalal,
An intermeddler in the estate of the Deceased
Defendant no.1 (deleted as per order 20.10.2008)
Hindu, Inhabitant of Mumbai,
Advocate having his permanent address and
residing at 12A, Prem Milan, 87, N.S. Road,
Mumbai 400 006 and temporary address at
Flat no.302, 3rd Floor, Vile Parle Aradhana
Co-operative Housing Society Ltd., Dr. Annie
Besant Road, 40/41, S.V.P. Road, Vile Parle
(West), Mumbai 400056.
2. M/s. Kirti Builders
Having its office at 101, Vile Parle Vile Parle
Aradhana Co-op. Housing Society Ltd., Dr.
Annie Besant Road, 40/41, S.V.P. Road, Vile (W)
Mumbai 400056. .. Defendants/Judgment debtor.
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MA NO. 133 OF 2019 ..2.. Suit No.9407 OF 1999
Mr. Francisca Philip, advocate for the plaintiff/decree holder.
Mr.Uday Jagushte, advocate for defendant no.1A/Judgment debtor.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 25th September, 2020
ORAL ORDER
Plaintiff is seeking direction against the registry to
transfer royalty amount lying in the suit account as per findings to issue
no.10 of the Judgment and order dated 31.10.2018 in the suit.
2. Contention of the plaintiff/ decree holder is that plaintiff
had filed suit for declaration against defendants that the plaintiff is
owner of suit premises i.e., Flat no.302, Vile Parle Aradhana Co-op.
Housing Society Ltd., Dr. Annie Besant Road, 40/41, S.V.P. Road, Vile
Parle (West), Mumbai and other consequential reliefs. Defendant no.1
was sister-in-law of plaintiff. The Hon’ble High Court vide its order
dated 21.09.1999 restrained defendant no.1 from alienating or creating
third party interest in suit premises. Defendant no.1A forcibly
dispossessed the plaintiff from suit premises upon death of his sister
(original defendant no.1) on 22.04.2008 and trespassed into the suit
premises by removing and replacing existing locks in violation of Court
order dated 21.09.1999 and 23.08.2001. Therefore, defendant no.1A
was impleaded in the suit as intermeddler in the estate of the deceased
defendant no.1. The Hon’ble High Court vide its order dated
06.07.2009 in notice of motion no. 2566/2008 in above suit, appointed
Curt Receiver who took symbolic possession of the suit premises and
appointed defendant no.1A as agent of the the Court Receiver with
direction to pay Royalty amount every month in respect of suit
premises. Then suit was transferred to this Court on 01.10.2012. Suit
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MA NO. 133 OF 2019 ..3.. Suit No.9407 OF 1999
was proceeded ex-parte against defendant no.2. Suit was decreed vide
Judgment and Order of this Court on 31.10.2018. Operative Portion of
Judgment is as follows :
1. The suit is decreed with costs.
2. It is declared that the Plaintiff is the sole owner of the
suit premises bearing Flat No.302, Vile Parle Aradhana
Co-op. Housing Society Ltd., Dr. Annie Besant Road,
40/41, S.V.P. Road, Vile Parle (West), Mumbai 400056.
3. The Court Receiver is discharged from the present case
and he is directed to handover the possession of the suit
premises to the Plaintiff.
4. Decree be drawn up accordingly.
3. M/s. Kirti Builders. Plaintiff is declared as sole owner of
suit premises and Court receiver is discharged from the present case
with effect from 31.10.2018 with direction to handover possession of
suit premises to the plaintiff. According to the plaintiff, royalty amount
is received from defendant no.1A till 31.10.2018. Accordingly the
registry prepared final statement of accounts and Rs. 12,05,770/- is
lying in the suit account after deducting cost, charges and expenses of
the Court Receivers. However, the registry sought clarification on the
balance amount vide its letter dated 22.01.2019 and directed the
plaintiff to obtain appropriate order from this Court.
4. In the meantime on 12.12.2018 defendant no.1A
preferred First Appeal memo bearing stamp no.FA/35525/2018 in the
Hon’ble High Court (Appellate side). Defendant no.1A also filed Civil
application no. CAF/4464/2018 for stay of the operation and execution
of Judgment but failed to obtain stay. Defendant no.1A did not comply
with office objection and failed to pay requisite Court fee in First Appeal
in spite of sufficient opportunities. Hence, the first appeal is rejected on
17.09.2019 and said application is also rejected on 20.09.2019 by
registry (JUDL-II) of the Hon’ble High Court (Appellate side). Now no
appeal is pending against the said Judgment and order /decrees dated
31.10.2018.
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MA NO. 133 OF 2019 ..4.. Suit No.9407 OF 1999
5. Court receiver fixed an appointment on 11.10.2019 and
duly intimated defendant no.1A to remain present at the site to
handover possession of suit premises. Defendant no.1A remained absent
and the suit premises was found locked. Hence, the plaintiff filed
execution application no.8/2020 before the City Civil Court at Dindoshi.
Decree is executed against defendant no.1A through Court receiver as
per order dated 27.01.2020 passed by the City Civil Court at Dindoshi.
The Court receiver broke open the lock of suit premises and handed
over possession of suit premises to the plaintiff on 31.01.2020. The
plaintiff in view of prayer clause (a) of the present application claimed
royalty amount from defendant no.1A at marked rate of Rs. 65,000/-
per month with effect from 01.11.2018 but in view of execution of
decree against defendant no.1, advocate for the plaintiff submitted
before Court that at present plaintiff is not pressing prayer clause (a) of
the application. Thus plaintiff’s claim is restricted only to prayer clause
(b) which is relating to directions to registry to transfer amount lying in
the suit account to the plaintiff as per findings to issue no.10 of
Judgment and order/decree dated 31.10.2018. In view above, advocate
for plaintiff prayed for allowing the application in terms of prayer
clause (b).
6. Defendant no.1A filed affidavit in reply to the application
and opposed the application. Contention of defendant no.1A is that his
First Appeal before the Hon’ble High Court is dismissed on technical
grounds and not on merits. Defendant will take necessary steps to
restore said First Appeal and stay application before the Hon’ble High
Court. Defendant no.1A also raised other contention in his reply but
the same cannot be taken into consideration at this stage as suit is
contested and decided on merit and appeal is not pending.
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MA NO. 133 OF 2019 ..5.. Suit No.9407 OF 1999
7. Heard both parties. Perused the application, documents
in support of it, affidavit in reply of defendant no.1A and plaintiff’s
affidavit in rejoinder to defendant’s reply dated 07.01.2020.
8. Plaintiff filed on record copy of Judgment and decree
dated 31.10.2018. From the perusal of Judgment, it appears that my
predecessor had framed issue no.10 “
Who is entitled to royalty amount
credited before the Court Receiver ?” and finding is given in favour of
the plaintiff. Appointment of receiver by the Hon’ble High Court and
deposit of royalty amount by defendant no.1 before the Court receiver is
not in dispute. Court receiver drawn final statement of account and
Rs.12,05,770/- is lying in the suit account after deducting costs, charges
and expenses.
9. Though my predecessor decreed the suit and given
finding to issue no.10 in favour of plaintiff but in operative part of the
Judgment, inadvertently order to whom the royalty amount is to be
paid is missing. From finding to issue no.10, it is evident that plaintiff is
entitled for royalty amount deposited by defendant no.1A before the
Court receiver. Plaintiff filed on record final statement of account of
Court receiver. It appears that Rs.12,05,770/- is lying in the suit account
and the Court receiver vide its letter dated 22.01.2019 asked the
plaintiff to obtain appropriate order in respect of balance amount from
this Court so as to enable registry to take necessary steps.
10. Defendant no.1A filed his reply on 07.01.2020 and
stated that he will take necessary steps to restore first appeal and stay
application before the Hon’ble High Court. But in spite of sufficient
opportunities, defendant no.1A failed to file on record, any document
to show that he restored appeal against the impugned Judgment and
decree and obtained stay order. Under the facts and circumstances,
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MA NO. 133 OF 2019 ..6.. Suit No.9407 OF 1999
plaintiff is entitled for royalty amount as per findings to issue no.10 of
the Judgment and order dated 31.10.2018. Hence following order :
ORDER
1. Application is allowed.
2. Registry is directed to transfer amount lying in the suit account
as per findings to issue no.10 of Judgment and order dated
31.10.2018 in Suit No.9407/1999 (High Court Suit
No.5387/1999)
3. Application is disposed of.
(Sunil T. Soor)
Judge
Date : 25.09.2020 Gr. Mumbai.
Typed on : 25.09.2020
HHJ signed on : 29.09.2020
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MA NO. 133 OF 2019 ..7.. Suit No.9407 OF 1999
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
29.09.2020, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
25.09.2020
JUDGMENT/ORDER signed by P.O.
on
29.09.2020
JUDGMENT/ORDER uploaded on 29.09.2020
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