Final Order 1

Order Details: Chamber summons
Pdf Text: 1 Ch/s 2335/2019 in S.C.Suit 7041 of 1997
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 2335 OF 2019
IN
S.C. SUIT NO. 7041 OF 1997
(H.C. SUIT NO. 1327 OF 1997)
CNR NO. : MHCC01-013569-2019
Mr. Narendra Ramesh Sharma … Plaintif
Vs.
Mrs. Ruksana Sulaiman Chamadia … Defendant
And
Subhash Bhagwatiprasad Sharma … Applicant/
Obstructionist
Appearance:
Ms. Tejashree Parab, advocate for the applicant.
Mr. Rajesh Sharma, advocate for the plaintif.
Ms. Reshmi Nair i/b. M/s. Apex Law Partners for defendant.
CORAM :SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 14/01/2020
ORAL ORDER
1. The chamber summons is fled by Subhash
Bhagwatiprasad Sharma seeking following relief:-
“(a) That this Hon'ble Court be pleased to permit
Substitution of the Applicant Shri. Subhash
Bhagwatiprasad Sharma in place and instead of the
plaintiff/ecree Holder Shri. Narendra Ramesh Sharma
and replace the name of the Applicant instead and in
place of the Plaintif and consequential amendment
thereto as per the Schedule annexed hereto”
2. The chamber summons is supported by afdavit of
Mr. Subhash Bhagwatiprasad Sharma stating that the suit
is fled by the plaintif for dissolution of partnership frm
M/s. Shubh Developers. The plaintif is his nephew i.e. son
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of his brother Ramesh Sharma. He has been looking into
the afairs in respect of the suit frm as his constituted
attorney. Over several years he has spent time, money
and energy and prosecuted the suit on behalf of the
plaintif and he has achieved positive results. The Hon'ble
High Court by order dated 17.02.2009 decreed the suit
that the suit frm shall stand dissolved with efect from
15.04.1997. The properties and assets of the suit frm be
sold and disposed by the Court Receiver, Hon'ble High
Court, Bombay.
3. The applicant stated that he has prosecuted the suit
proceeding out of his own funds and eforts. There is
family arrangement and in that the Shares in the suit frm
belonged to him. On 12.12.2019 the plaintif executed a
Deed of Assignment of the Decree dated 17.02.2009 in
his favour. The plaintif has also executed an irrevocable
general Power of Attorney dated 12.12.2019. Hence,
prayed to allow the chamber summons.
4. The applicant has relied on the notarized Deed of
Assignment.
5. Heard advocate Mr. Rajesh Sharma for the plaintif.
The plaintif in para no. 7 of evidence afdavit stated that
to continue the suit proceedings and the execution
proceedings in his own name and in his own
independent right pursuant to the said assignment dated
12.12.2019 in his favour. The plaintif now does not have
any right or share in the suit frm in view of the Deed of
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Assignment.
6. The Hon'ble High Court in Notice of Motion No. 1541
of 2007 vide order dated 17.02.2009 has directed the
Registry to draw a fnal decree. Therefore, the contention
of the applicant in para no. 7 that he has to be continued
in the suit proceedings and execution proceedings
simultaneously is not tenable. The fnal decree in the
proceedings is yet not drawn, though there is direction of
the Hon'ble High Court. Unless the plaintif provides the
stamps to draw a fnal decree, the decree cannot be
drawn. There is nothing on record to show that the
plaintif in all these 10 yeas has at any time provided the
stamp to the Registry to draw fnal decree.
7. The suit has been decided by the Hon'ble High Court
and there is fnal decree to be drawn. The application is
not maintainable, as once the suit is decided and fnal
decree is directed to be drawn, the applicant cannot be
part of the said suit, as the proceeding is fnally decided.
There is no execution proceeding on the basis of fnal
decree drawn on stamp paper fled in the Court by the
plaintif. Therefore, the question of name of the applicant
to be replaced in place of plaintif does not arise.
8. The plaintif is seeking his name to be replaced on
the basis of notarized Deed of Assignment. The said
notarized Deed of Assignment is not registered.
Unregistered document cannot be relied by the applicant
in the Court Proceedings without the application being
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fled by the plaintif himself agreeing to the contention of
the chamber summons. The chamber summons itself is
not maintainable, as the suit has been fnally decided in
the notice of motion no. 1541 of 2007 by the Hon'ble High
Court by order dated 17.02.2009. There is no execution
proceeding fled by the plaintif on the basis of fnal
decree. Hence, pass the following order :-
ORDER
1. The chamber summons no. 2335 of
2019 is dismissed.
2. No order as to cost.
3. Accordingly, chamber summon is disposed
of.
(Smt. S.S. Nagur)
Ad-hoc Assistant Sessions Judge
Gr. Mumbai.
Dictated on : 14/01/2020
Typed on : 17/01/2020
Sign on : 18/01/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
11/02/2020 5.25 p.m. Prachi Y. Potdar (H.G.)
Name of the Judge HHJ Smt. S.S. Nagur
(CR No.13)
Date of Pronouncement of
Judgment/Order.
14/01/2020
Judgment/order signed by P.O on 18/01/2020
Judgment/order uploaded on 11/02/2020
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