Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.44112019 in Comm. Suit No.5302021
MHCC010120942019
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION No.4411 OF 2019
IN
COMMERCIAL SUIT No.530 OF 2021
Suman Shantinath Magdum & Ors. …PLAINTIFFS
VERSUS
Netaji Narobe Omase & Ors. …DEFENDANTS
Shri.Rajesh Revankar, learned advocate for plaintiffs.
Shri.Tukaram Shinde, learned advocate for defendant Nos.1,2,3,5,6.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN (C.R.NO.32)
O R D E R
(Delivered on 20/08/2022)
This Notice of Motion filed by plaintiff for :i) For
restraining defendant Nos.1 and 2 from parting with possession of Shop
No.F/10 or creating third party right in respect of shop No.E/6, F/10
and H/44, ii) For restraining defendant No.7 from sharing or paying
50% of net compensation received by them by letting out shop
No.H/44 on leave and license basis to defendant Nos.1 and 2 and to
hold the amount till disposal of the suit on behalf of partnership firm,
iii) For appointing Court Receiver or some other proper person as the
receiver of suit property Shop No.F/10.
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2. Today advocate of plaintiff has filed application for matter
taking on today’s board for seeking urgent relief. He has filed further
affidavit in support of Notice of Motion at Exh.13 and pressed for status
quo order till next date. Heard advocate of plaintiff and defendant
Nos.1,2,3, 5 & 6.
3. Plaintiff has filed this suit seeking declaration that in view
of the expiration of Shantinath Bhausaheb Magdum and retirement of
defendant Nos.3 to 4 the partnership of M/s. Krishna Ramchandra
Omase and Magdum Co. has dissolved and as consequences thereof for
appointment of Court Receiver for settling account of the firm, for
recovery of possession of Shop No.F/10 which is occupied by defendant
Nos.1 and 2, for appointment of Court Receiver, for recovery of amount
due from defendant No.1, for permanent injunction and other relief.
4. Plaintiff contended that as per interim arrangement it was
agreed between the parties that Shop No.H/44 was to remain in
possession of defendant No.7 and shop No.E/6 was in possession of
plaintiff and Shop No.F/10 was in possession of defendant No.10. Now,
defendant No.1 and 2 are adopting the illegal methods to pressurize
office bearers of defendant No.7 i.e. association to change the status
quo in respect of the properties belonging to partnership firm to create
third party right. Plaintiff apprehend that the office bearers of
defendant No.7 may change status quo in respect of the suit property
and hand over possession of the shop H/44 to defendant No.1. If status
quo is not granted plaintiff will suffer irreparable loss and injury leading
to multiplicity of litigation. Hence, plaintiff prayed for status quo order
till next date.
5. Advocate of defendant Nos.1,2,3, 5 & 6 contended that
yesterday in the evening he served with copy of this further affidavit in
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support of notice of motion and therefore could not prepare reply. He
contended that defendants have filed notice of motion No.1133 of 2020
for rejection of plaint on the ground that as per Arbitration Clause in
the Partnership Agreement the plaintiff ought to have approach to the
Arbitrator. Therefore, this court has no jurisdiction to try and entertain
this suit.
6. Perused Deed of Partnership which shows that there is
arbitration clause for appointment of single Arbitrator in case of the
parties agree upon one or otherwise to two arbitrators one to be
appointed by each party to the dispute in accordance with and subject
to the Indian Arbitration Act. Primafacie it seems that this court has no
jurisdiction because of the arbitration clause. According to plaintiff on
19/08/2022 one of office bearer of defendant No.7 informed that
defendant No.1 approached to defendant No.7 and pressurizing the
office bearer of defendant No.7 to accept him as member of the
association as partner of Krishna Ramchandra Omase and Magdum
Company and hand over possession of shop to him on the basis of
fabricated and invalid alleged partnership deed dtd.18/01/2019
allegedly executed between defendant No.1 and 2 with defendant Nos.3
to 6. On 18/08/2022 at late evening office bearers of defendant No.7 in
the meeting decided to accept the defendant No.1 as a member of
association for being a partner of Krishna Ramchandra Omase and
Magdum Company. According to plaintiff defendant No.7 cannot take
such unilateral decision without notice to plaintiff. Defendant Nos.1 and
2 were never partners.
7. Roznama dtd.02/02/2022 shows that advocate of
defendant No.7 submitted that defendant No.7 is not intending to
create any third party interest. Considering the entire facts as discussed
above, it seems that primafacie this court has no jurisdiction to
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entertain and try this suit because of arbitration clause. Therefore, it is
necessary to decide the Notice of Motion No.1133 of 2020 prior to this
Notice of Motion No.4411 of 2019. There is no strong primafacie case
made out by plaintiff to grant interim status quo without giving
opportunity to defendants to file reply on the “further affidavit in
support of Notice of Motion”. Considering the facts mentioned above, it
is necessary to give opportunity to defendants to file reply on this
further affidavit in support of Notice of Motion. No irreparable loss will
cause to plaintiff if interim status quo as prayed is rejected. Hence,
prayer of plaintiff to grant interim status quo stands rejected.
Defendants shall file reply on “further affidavit in support of Notice of
Motion No.4411 of 2019” till next date.
Date : 20/08/2022.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32.
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Dictated on : 20/08/2022.
Checked on : 20/08/2022.
Signed on : 20/08/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
22/08/2022 Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 20/08/2022
Order signed by P.O. on 20/08/2022.
Order uploaded on 22/08/2022.
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