Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4566/2019 in
S.C. Suit No.6913/2006. 1 Order.
MHCC010125112019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4566 OF 2019
IN
S.C. SUIT NO. 6913 OF 2006
Kiritkumar Babulal Shah And Another. ...Plaintiffs
V/s.
Mahendra Babulal Shah And Others ... Defendants
CORAM : HIS HONOUR JUDGE
SHRI N. G. SHUKLA
CITY CIVIL COURT, GR. BOMBAY
(C. R. NO.63).
DATE : 03/08/2023.
Appearance:-
Ld. Advocate Shri. A.R. Pandey for the plaintiffs.
Ld. Advocate Shri. P. M. Shah for defendants.
ORDER
1. Plaintiffs have taken out this notice of motion for
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NM No.4566/2019 in
S.C. Suit No.6913/2006. 2 Order.
appointment of Court Receiver in respect of the suit properties i. e. flat
and office premises till disposal of the suit. Defendants filed reply
affidavit and opposed the notice of motion. Plaintiffs have filed
rejoinder to said reply.
2. I have heard Ld. Advocate Shri. P. M. Shah for the
defendant Nos.1 and 2. Ld. Advocate Shri. A.R. Pandey for the plaintiffs
filed written arguments.
3. The suit is filed for declaration of ownership of suit flat and
that the plaintiff is tenant of office premises and for possession of both
suit properties as well as recovery of maintenance and other charges.
Suit is at the stage of framing Issues. Record shows that when the suit
was initially filed and pending in the Hon’ble High Court, plaintiffs had
taken out similar notice of motion for appointment of Court Receiver.
Defendant Nos. 1 and 2 had made statement that they are in possession
of the suit properties and they will not create any third party interest in
the suit properties. On the basis of the said submission, relief of
appointment of Court Receiver was not granted and the notice of
motion was dismissed.
4. On the backdrop of these facts, now I have to consider the
submissions advanced by both the parties.
5. Ld. Advocate for the plaintiffs in his written argument
submitted that, plaintiff is the owner of the suit flat and tenant of the
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office premises. He has permitted defendant Nos. 1 and 2 to reside in
the suit flat and to use the office premises for the business of
partnership of plaintiffs and defendants. There is dispute between
plaintiff and defendants since 1995. Defendants are trying to create
third party interest and given the office premises on leave and licence
basis to the third person for carrying the business. Therefore,
appointment of Court Receiver is necessary.
6. I have considered the submissions and perused the record.
So far as the suit flat is concerned, no specific ground is mentioned in
the affidavit in support of notice of motion to demonstrate that the
Court Receiver is required to be appointed for the suit flat. Defendant
Nos. 1 and 2 are admittedly residing in the suit flat and on the basis of
their statement made before the Hon’ble Bombay High Court, earlier, no
relief of appointment of Court Receiver was granted. In absence of any
fresh ground in the affidavit, relief for appointment of Court Receiver in
respect of the suit flat cannot be granted.
7. So far as the office premises is concerned, plaintiffs have
not placed on record any documents showing that any third person is
carrying business in the suit premises and defendants had given office
premises to such third person on leave and licence agreement. No name
of such third person is mentioned in the affidavit. Plaintiffs have also
not disclosed as to how they got knowledge about office premises given
on leave and licence to third person. It appears that without any such
foundation, notice of motion is moved only to protract the trial of the
suit.
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NM No.4566/2019 in
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8. Earlier notice of motion is rejected by the Hon’ble Bombay
High Court. In absence of any fresh specific ground, present notice of
motion for the same relief cannot be granted. Secondly, to appoint the
Court Receiver there must be emergent situation or eminent danger to
the suit property. Defendants are in de-facto possession of the suit
property. In T. Krishnaswamy Chetty V/s. Thangvelu Chetty reported in
1954 SCC Online Mad 374, the principles requiring to appoint the Court
Receiver are laid down. The case of the plaintiffs is not passing the test
of the principles laid down in the said rulings.
9. Plaintiffs have sought to appoint Court Receiver of High
Court. In case of Girish M. Joshi V/s. Jagat Manubahi Parikh & Ors.
(Writ Petition No. 2527 of 2009) dtd. 11.09.2009, the Hon’ble Bombay
High Court held that,
“there is no provision of law under which any Court
subordinate to this Court can appoint the Court Receiver,
High Court, Bombay as a Receiver”.
In view of this observation, the Court Receiver of the
Hon’ble Bombay High Court cannot be appointed by this court in the
present matter.
10. For the aforesaid reasons, I hold that plaintiffs failed to
make out the case for appointment of Court Receiver. Notice of motion
deserves to be dismissed. Hence, I pass following order:
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NM No.4566/2019 in
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- ORDER -
Notice of Motion No.4566 of 2019 is dismissed and
accordingly disposed off.
(N.G. Shukla)
Judge
City Civil Court,
Date :03.08.2023 Gr. Bombay.
1. Dictated on : 03.08.2023
2. Transcribed on : 03.08.2023
3. Checked and Signed on : 04.08.2023
4. Delivered to Certified :
Copy Section on
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NM No.4566/2019 in
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04.08.2023 5.00 p.m. Miss K.M.Rana .
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 03.08.2023
Judgment/Order signed by P.O. on 04.08.2023
Judgment/Order uploaded on 04.08.2023
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